J.M. and G.M., In Interest of, 16143

Decision Date19 July 1979
Docket NumberNo. 16143,16143
Citation585 S.W.2d 854
PartiesIn the Interest of J.M. and G.M., Children, Appellant.
CourtTexas Court of Appeals
OPINION

KLINGEMAN, Justice.

This is an appeal from an Order to Modify in Suit Affecting the Parent-Child Relationship. A decree of divorce was entered between R.M. and L.M., the parents of the subject children, on September 3, 1976, wherein R.M., their father, was ordered to pay child support for his and L.M.'s two minor children, in the following amounts:

September 15, 1976-January 1, 1977

$250 per month per child, or $500 per month;

January 1, 1977-June 1, 1977

$375 per month per child, or $750 per month;

June 1, 1977-January 1, 1978

$500 per month per child, or $1,000 per month;

January 1, 1978-June 1, 1978

$625 per month per child, or $1,250 per month;

and

June 1, 1978, until each child attains the age of

eighteen years

$750 per month per child, or $1,500 per month.

In addition, the divorce decree ordered the father to pay for a college education for each of the two children; to provide a piano for the oldest child, when that child reached the age of eight years; to keep in effect all medical insurance coverage for the minor children and to remain responsible for one-half of their medical and dental expenses; to retain all of his life insurance policies in full force and effect, with the minor children to be designated as beneficiaries; and to "pay all tuition costs of schooling for the minor children." The payment schedule set out above, was included in a "Child Support and Community Property Settlement Agreement" signed by the parties and incorporated into the decree of divorce. Under the decree, L.M., the mother, was named managing conservator of the children, and their father was appointed as possessory conservator.

On or about January 1, 1978, R.M. is alleged to have failed to abide by the terms of the child support agreement, when he refused to make the increased payments ordered in the decree. He did, however, continue to make monthly child support payments of $500 per month per child. Thereafter, on March 6, 1978, he filed a motion to modify, requesting a reduction in child support payments. He also asked that the court set a reasonable amount of child support.

After a hearing on the matter, the court ordered that he pay child support in the sum of $575 per month per child until each child attains the age of eighteen years, or until further orders of the court. The court further ordered that this sum would be the "total amount of support to be paid by the Movant for the support of the minor children at this time," but held that this order did not modify the specific provisions for a piano, expenses for future college education, and maintaining the children as beneficiaries on his life insurance policies.

The children's mother appealed from this order, complaining that it cut off her anticipated automatic increases in child support up to $750 per month per child, and that the tuition payment for the schooling of the minor children should not be considered covered by the $575 per month per child cash payments. She asserts twenty-one points of error in which she basically contends that (1) the trial court erred in granting a reduction in child support payments because there is no evidence, or alternatively insufficient evidence, of any material or substantial change in circumstances since the entry of the divorce decree; (2) there is no evidence, or alternatively insufficient evidence, to support a finding that the movant's financial circumstances had changed; (3) the trial erred in setting aside the prior child support agreement provisions incorporated in the decree of divorce, since that agreement and decree is valid and binding upon the parties; (4) the trial court erred in modifying the tuition payment provisions of the divorce decree; and (5) the trial court erred in modifying the original decree of divorce.

The amount of money that a parent is required to pay for the support of his minor children, both before and after divorce, is based not only upon the needs of the children but upon his financial ability to pay, having due regard to all of his lawful obligations, including those assumed to another spouse and to other children. See Gully v. Gully, 111 Tex. 233, 231 S.W. 97 (1921). One is bound to support his children in a manner suitable to their circumstances in life, commensurate, however, with his financial ability to pay for their support. See Myrick v. Myrick, 478 S.W.2d 859 (Tex.Civ.App. Houston (1st Dist.) 1972, writ dism'd); McAfee v. McAfee, 258 S.W.2d 824 (Tex.Civ.App. Dallas 1953, no writ); 21 Tex.Jur.2d Divorce and Separation § 387 (1961). The trial court's order will not be disturbed on appeal unless there is a clear abuse of discretion. See Hearn v. Hearn, 449 S.W.2d 141 (Tex.Civ.App. Tyler 1969, no writ); Brito v. Brito, 346 S.W.2d 133 (Tex.Civ.App. El Paso 1961, writ ref'd n. r. e.). While the trial court has wide discretion in fixing the amount of child support payments and while each case must stand on its own facts, the determination of that amount must be supported by evidence that the parent obligated for child support is able to pay, and can pay, the amount specified in the order. See Anderson v. Anderson, 503 S.W.2d 124 (Tex.Civ.App. Corpus Christi 1973, no writ); Danburg v. Danburg, 433 S.W.2d 784 (Tex.Civ.App. Houston (14th Dist.) 1968, no writ); Ramey v. Ramey, 425 S.W.2d 900 (Tex.Civ.App. Eastland 1968, writ dism'd); Angel v. Todd, 368 S.W.2d 224 (Tex.Civ.App. Houston 1963, no writ); Madden v. Madden, 365 S.W.2d 427 (Tex.Civ.App. Fort Worth 1963, no writ).

By counterpoint the children's father asserts here that the provisions of the original divorce decree providing for an automatic increase in child support were not based upon the actual needs of the children, but followed instead a prescribed formula based on his anticipated ability to pay, and were, therefore, unenforceable. We consider this contention to be meritorious. 1

In Barlow v. Barlow, 282 S.W.2d 429 (Tex.Civ.App. El Paso 1955, no writ), it was held that the application of an arbitrary percentage-of-income formula to determine the level of child support was erroneous and violated the rule set out by the Supreme Court of Texas in Gully v. Gully, 111 Tex. 233, 231 S.W. 97 (1921). Under Gully, the trial court is directed to consider all the circumstances affecting the ability of the supporting parent to pay. This consideration is an ongoing judicial process and does not permit the imposition of a formula to provide automatic increases in support. There must be a material change in conditions to warrant an increase in child support payments, and it is not in the trial court's power to anticipate such changes and provide for them prior to their occurrence.

The facts of Myrick v. Myrick, 478 S.W.2d 859 (Tex.Civ.App. Houston (1st Dist.) 1972, writ dism'd), are close in point to those before us. In that case, a property settlement agreement was incorporated into the divorce decree, in which the divorced husband agreed to pay for the support of his two children $1,100 each month from June 1, 1968, through May 1, 1971; $1,300 each month from June 1, 1971, through May 1, 1973; and $1,500 each month thereafter until the youngest child reached eighteen years of age. This is close to the situation we have before us in this case. The divorced husband there filed a motion to modify, and the trial court entered an order reducing his child support payments to the sum of $600 per month for the period from July 1, 1970, to April 1, 1971. At the end of this period, he was ordered to resume child support payments in accordance with the original decree. At trial the divorced wife testified that she was spending only $300 to $400 each month for the support and education of the children. On appeal, she contended that the trial court lacked the power to reduce the payments required by the divorce decree because this portion of the decree was not only a judgment of the court, but also a contract between the parties.

The court of civil appeals in Myrick held that the court granting a divorce has continuing and exclusive jurisdiction to modify and change the provisions of the divorce decree for support of children under the age of eighteen years. The court also found that the parties to a...

To continue reading

Request your trial
22 cases
  • Hunter v. Hunter
    • United States
    • Indiana Appellate Court
    • October 27, 1986
    ... ... (Iowa 1981); In re Meeker (1978), Iowa, 272 N.W.2d 455; In Interest of J.M. & G.M. (1979), Tex. CW.App., 585 S.W.2d 854, 856-57; In re ... ...
  • Falls v. Falls, 8010DC502
    • United States
    • North Carolina Court of Appeals
    • June 2, 1981
    ... ... the child or that such visitation rights are not in the best interest of the child ...         G.S. 50-13.5(i) ... ...
  • Marriage of Stamp, In re
    • United States
    • Iowa Supreme Court
    • December 17, 1980
    ... ... 72, 76-77, 328 A.2d 625, 627-28 (1974); In Interest of J. M. and G. M., 585 S.W.2d 854, 856-57 (Tex.Civ.App. 1979). It should ... ...
  • Herron v. Herron
    • United States
    • Indiana Appellate Court
    • December 13, 1983
    ...N.W.2d 275, reh. denied, (Iowa 1981); In re Meeker, (1978) Iowa, 272 N.W.2d 455; In Interest of J.M. and G.M., (1979) Tex.Civ.App., 585 S.W.2d 854, 856-57; In re Mahalingam, (1978) 21 Wash.App. 228, 584 P.2d 971; annot., 75 A.L.R.2d 493 (1977); Note, Inflation-Proof Child Support Decrees: T......
  • Request a trial to view additional results
1 books & journal articles
  • Automatic Escalation Clauses Relating to Maintenance and Child Support
    • United States
    • Colorado Bar Association Colorado Lawyer No. 12-7, July 1983
    • Invalid date
    ...validity and enforceability of negotiated escalation clauses when statutory factors are considered); In the Interest of J.M. & G.M., 585 S.W.2d 854 (Tex.App., 1979) (provision set aside because formula was arbitrary); Soltow v. Soltow, 50 App. Div.2d 579, 374 N.Y.S.2d 701 (1975) (provision ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT