In the Interest of R.D., No. 2-04-165-CV (TX 3/3/2005)
| Decision Date | 03 March 2005 |
| Docket Number | No. 2-04-165-CV.,2-04-165-CV. |
| Parties | IN THE INTEREST OF R.D., a Minor Child. |
| Court | Texas Supreme Court |
Appeal from the 367th District Court of Denton County.
Panel A: HOLMAN, J.; CAYCE, C.J.; and WALKER, J.
This is a child support modification case. Appellant Scott Douglas challenges the trial court's order denying his motion for modification of child support and the trial court's denial of his motion for new trial. We affirm.
Appellant and his wife, Appellee, were divorced in Georgia on November 20, 2000. At the time of the divorce, there were four children of the marriage: A.D., R.D., S.D., and M.D. The parties entered into an "Agreement" specifically addressing many areas related to their divorce proceedings, including custody and child support. On November 17, 2000, the Georgia trial court signed a "Final Judgment and Decree" stating that the parties' agreement The parties' Agreement provided that Appellee would have primary possession of the four children, and Appellant was to pay $5,000 per month in child support. The Agreement provided for automatic decreases in child support upon the occurrence of certain events.2 After the divorce became final, Appellant moved to Texas, and Appellee moved to Wisconsin with the children.
The oldest child, A.D., was emancipated at the time of the Texas trial, and Appellant, relying on the Agreement, decreased his child support payments from $5,000 per month to $4,500 per month. In July 2003, the parties' child, R.D., moved to Texas to live with Appellant. On September 15, 2003, the Wisconsin court granted Appellant primary custody of R.D., allowing him to remain in Texas with Appellant.
On August 1, 20033, Appellant filed in the district court of Denton County, Texas, a petition to modify the parent-child relationship seeking to reduce his child support obligation by bringing payments within substantial compliance of the guidelines of the Texas Family Code.4 On February 27, 2004, during an evidentiary hearing on the motion to modify child support, Appellant moved to exclude any evidence or theories that were not properly disclosed by Appellee. The trial court declined to rule on the motion at that time. On March 4, 2004, the trial court denied Appellant's motion to modify child support.
The trial court entered four findings of fact and one conclusion of law. The trial court found that 1) the parties signed an agreement that was incorporated by reference into a Final Judgment and Decree in the state of Georgia; 2) the agreement provides that Appellant's monthly child support obligations shall decrease by $500 if a child ceases to live with Appellee; 3) in the summer of 2003, R.D. ceased to live with Appellee and moved in with Appellant, who, relying on the Agreement, began paying $500 less per month in child support; and 4) both parties have been voluntarily complying with the Agreement. The trial court concluded that the Agreement, which was incorporated by reference into the Final Judgment and Decree, is a valid, enforceable agreement. Appellant appeals the trial court's judgment in five issues.
Appellant contends that the trial court erred in denying his motion to modify child support payments. Specifically, in issue one, Appellant asserts that the trial court abused its discretion in denying his request to modify child support. In his second issue, Appellant argues that the trial court erred in concluding that the contract between the parties unambiguously controlled the court's decision. In issue three, Appellant complains that the trial court erred when it based its decision on a theory not properly pled or disclosed during discovery. Finally, in issues four and five, Appellant argues that the trial court abused its discretion when it denied his motion for new trial and that the trial court erred by refusing to consider evidence at the hearing on the motion for new trial regarding the intent of the parties at the time the Agreement was entered into.
We review a trial court's order setting or modifying child support under an abuse of discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re D.S., 76 S.W.3d 512, 516 (Tex. App.-Houston [14th Dist.] 2002, no pet.). The test is whether the trial court acted arbitrarily, unreasonably, or without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). In making this determination, we must view the evidence in the light most favorable to the trial court's actions and indulge every legal presumption in favor of the order. Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.-Houston [1st Dist.] 1993, writ denied). We cannot substitute our judgment for that of the trial court, even though we may have ruled otherwise. In re Z.B.P., 109 S.W.3d 772, 783 (Tex. App.-Fort Worth 2003, no pet.).
The Texas Family Code provides that a trial court may modify a child support order if the movant shows that his circumstances have materially and substantially changed since the date of the support order's rendition. Tex. Fam. Code Ann. § 156.401 (a)(1)-(2) (Vernon Supp. 2004-05); Hammond v. Hammond, 898 S.W.2d 406, 407-08 (Tex. App.-Fort Worth 1995, no writ). A child support order not in compliance with guidelines5 does not in and of itself establish a material and substantial change in circumstances warranting modification. See Lindsey v. Lindsey, 965 S.W.2d 589, 593 (Tex. App.-El Paso 1998, no pet.). The family code provides that a trial court "may consider the child support guidelines . . . to determine whether there has been a material or substantial change of circumstances . . . that warrants a modification of an existing child support order. . . ." Tex. Fam. Code Ann. § 156.402(a) (Vernon 2002) (emphasis added). Thus, in determining whether to modify existing child support orders, the trial court's use of percentage guidelines under the child support guidelines is discretionary, not mandatory. See Escue v. Escue, 810 S.W.2d 845, 848 (Tex. App.-Texarkana 1991, no writ). Additionally, "[a] court may consider other relevant evidence in addition to the factors listed in the guidelines." Tex. Fam. Code Ann. 156.402(b). In sum, the trial court retains broad discretion in making the equitable decision of whether to modify a prior child support order. See Hoffman v. Hoffman, 805 S.W.2d 848, 851 (Tex. App.-Corpus Christi 1991, writ denied).
Although Appellant argues that the child support payments do not meet the statutory guidelines of the Texas Family Code and that there has been a material and substantial change to warrant modification, his claim fails for two reasons. First, Appellant's claim relies in large part upon the mistaken assumption that the court, in a modification proceeding, may only order child support obligations in strict conformity with the child support guidelines, or that a material and substantial change mandates a modification of child support payments. On review, we allow the trial court broad discretion in setting child support payments and in modifying those payments. In re D.S. 76 S.W.3d 512, 520 (Tex. App.-Houston [14th Dist.] 2002, no pet.). The trial court's adherence to the guidelines is only discretionary. Escue, 810 S.W.2d at 848; see Tex. Fam. Code Ann. § 156.402(a); Furthermore, a trial court's determination as to whether a material change of circumstances has occurred is not guided by rigid rules and is fact-specific. In re Z.B.P., 109 S.W.3d at 779.
Appellant argues that because R.D. no longer lives with Appellee, she is no longer furnishing the degree of services to him that she did at the time of the divorce; Appellant, on the other hand, is furnishing more services than he did at the time of the divorce. Appellant contends that this, in and of itself, constitutes a material and substantial change requiring modification of child support payments. During the modification hearing, Appellant cited In re Z.B.P. as standing for the proposition that a change in possession would constitute a material and substantial change in circumstances warranting modification of child support payments. See 109 S.W.3d at 781-82. The trial court clearly distinguished the facts of Z.B.P. from the facts of this case by stating that normally that type of situation would amount to a material and substantial change if the agreed order, such as exists in this case, had not already provided for those circumstances. Here, the trial court determined at the hearing that the language in the Agreement was unambiguous and covered the situation in this case. Specifically, the trial court determined that the language contained in the Agreement applied to these circumstances because R.D. had ceased to live with Appellee in the summer of 2003 and because Appellant, relying on the Agreement, began paying $500 less per month in child support. The following is the language in the Agreement that the trial court referred to in making this determination: "At such time as any of the remaining three children of the parties arrive at the age of eighteen, marry, enter the Armed Services, become self-supporting, cease to live with the wife, or die, whichever event shall first occur, the sum payable as child support shall reduce to $4,000 per month." [Emphasis added].
Although in his reply brief, Appellant argues that contract law does not apply, he contends that the trial court should have considered the intent and understanding of the parties when they entered into this Agreement. When an agreement is incorporated into a divorce decree, the decree is a consent judgment. Shanks v. Treadway, 110 S.W.3d...
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