M.G. v. T.G.
| Decision Date | 23 February 2023 |
| Docket Number | 02-21-00433-CV |
| Parties | M.G., Appellant v. T.G., Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 467th District Court Denton County, Texas Trial Court No. 20-2472-462
Before Kerr, Wallach, and Walker, JJ.
In this restricted appeal, we consider whether sufficient evidence supports the property division, child support, and attorney's fees ordered in a default divorce and SAPCR.[1] Because the evidence does not support the property division and the total child-support and attorney's-fees awards, we reverse the judgment in part and remand the case for a limited new trial.
Appellant M.G. and Appellee T.G. married in 2016 and then had two children. The couple separated in 2020. In March 2020, M.G filed for divorce. In both March and November 2020, she absconded with both children, who were found by law enforcement. T.G. filed a counterpetition for divorce.
M.G answered some discovery, but the parties did not exchange or file sworn inventories of their property.[2] After responding to T.G.'s discovery requests, M.G.'s counsel moved to withdraw from representation because she had "not been able to effectively communicate with" M.G. The trial court allowed M.G.'s counsel to withdraw in mid April 2021, a little over a month and a half before the June 7 2021 trial setting. M.G. took no further action in the trial court.
Although T.G. appeared for the trial, M.G. did not. T.G. testified about the circumstances leading to the divorce, including M.G.'s mental-health and substanceabuse problems-both before and after they sought a divorce-as well as M.G.'s arrests and Child Protective Services involvement[3] during the divorce's pendency. T.G. also testified that their 2016 car that M.G. had been driving since October 2021 was impounded in March 2021 and he had to pick it up. The car appeared to have been crashed on multiple occasions; had writing on the console and a cigarette burn inside; was full of food, garbage, clothing, and other items; and reeked of cigarettes. According to T.G., the car was totaled.
T.G. testified that he and the children were living in a home that he and M.G. had bought after marrying; its 2020 appraised value was "about $281,000," and he estimated their equity in the home to be $193,000. T.G. expected to continue making the mortgage payments and wanted to remain living there with the children.[4]
T.G. testified that he was seeking $130 a month for the children's health insurance, child support from January 2021 through June 2021, and prospective child support based on what he estimated M.G.'s earning capacity to be based on her education and work experience: $15 per hour.[5] T.G. also testified that M.G. was the beneficiary of a trust fund created before their marriage and that he had no access to or control over that fund.
The trial court admitted a summary of T.G.'s proposed relief, in which he sought to have the following property awarded to him:
• the marital residence "with all equity, furniture, furnishings, fixtures and items located" there and all associated debt and tax obligations;
• a 2008 truck and the totaled 2016 car;
T.G. also asked the trial court to award M.G.
• "[a]ll financial accounts, retirement accounts, and other assets in her possession or subject to her control";
• "[h]er personal belongings, including computers, clothes, and jewelry";
• "all credit card debt or loans in her name"; and
• "[a]ny outstanding medical bills, psychiatric bills, criminal fees or fines, in her name."
Finally, T.G. sought an order for M.G. to pay his attorney $25,000 for fees through trial and $469 for expenses.[6]
The trial court rendered its ruling on the record. It granted the divorce and T.G.'s requested property division, child support, $130 monthly medical-insurance reimbursement, and attorney's fees. The trial court also named T.G. the children's sole managing conservator with the exclusive right to determine their residence.[7]
On July 1, 2021, the trial court signed the final judgment incorporating its trial rulings. M.G. filed this restricted appeal a little over five months later.
In a single issue with five subissues, M.G. challenges the evidentiary sufficiency of the prospective and retroactive child-support awards, the property division, and the attorney's-fees award.[8] We apply the same standard of review-abuse of discretion- to her child-support and property-division challenges. See Sandone v. Miller-Sandone, 116 S.W.3d 204, 205 (Tex. App.-El Paso 2003, no pet.)
("Most of the appealable issues in a family[-]law case are evaluated against an abuse of discretion standard, be it the issue of property division incident to divorce or partition, conservatorship, visitation, or child support.").
A trial court abuses its discretion if it acts arbitrarily or unreasonably or if it does not analyze or apply the law properly. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011). Although a trial court does not abuse its discretion by deciding based on conflicting evidence, sufficient evidence must nevertheless support the decision; therefore, the traditional sufficiency-review standards are relevant to our review. Hamilton v. Hamilton, No. 02-19-00211-CV, 2020 WL 6498528, at *3 (Tex. App.-Fort Worth Nov. 5, 2020, no pet.) (mem. op.); In re S.C., No. 02-17-00377-CV, 2018 WL 5289370, at *3 (Tex. App.-Fort Worth Oct. 25, 2018, no pet.) (mem. op.); see Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018) (legal-sufficiency standard); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh'g) (factual-sufficiency standard). Stated another way, when we review if the trial court abused its discretion by ruling based on legally or factually insufficient evidence, "we must determine (1) whether the trial court had sufficient evidence on which to exercise its discretion and (2) whether the trial court acted reasonably in applying its discretion to those facts." Hamilton, 2020 WL 6498528, at *3.
In her second and third subissues, M.G. argues that the prospective and retroactive child-support awards are not supported by sufficient evidence because T.G. did not present evidence establishing her net monthly resources.
The Family Code requires a trial court determining child support to calculate the obligor's net resources available to pay that support. Tex. Fam. Code Ann. § 154.062(a); see id. § 154.061(a) (). In addition to wages, "[r]esources include . . . trust income." Id. § 154.062(b)(1), (5).
A trial court cannot adequately calculate net resources without some evidence of a substantive and probative character. Marquez v. Moncada, 388 S.W.3d 736, 739 (Tex. App.-Houston [1st Dist.] 2012, no pet.); see In re L.A.-K., 596 S.W.3d 387, 397 (Tex. App.-El Paso 2020, no pet.). Once a party's net resources are established, the trial court must apply the Family Code's guidelines to calculate the obligor's monthly child-support obligation. Stringfellow v. Stringfellow, 538 S.W.3d 116, 118 (Tex. App.-El Paso 2017, no pet.) (citing Tex. Fam. Code Ann. § 154.122(a)); see Knight v. Knight, 131 S.W.3d 535, 540 (Tex. App.-El Paso 2004, no pet.) ( process and citing governing Family Code provisions).
The record does not show whether M.G. was employed at the time of trial. In her February 2021 interrogatory responses, she stated that she had been working at Hooters "for a short period of weeks" but other than that, she had not been employed since May 6, 2016. T.G. testified that M.G. lacked only "about 20 to 30 hours" of credit to obtain her bachelor's degree. He estimated that she could earn "about $15 an hour" based on her education and work experience. T.G. also testified that M.G. had access to a trust fund from which she could pay child support. Although M.G. had not received regular monthly trust-fund payments she relied on her mother to make payments from the fund "on a case-by-case basis." According to T.G., "if [M.G.] did need a monthly amount, her mom would be more than happy to provide that for her."[9] T.G. asked the trial court to award him retroactive and prospective child support of $500 per month based on M.G.'s estimated earning capacity of $15 an hour.
T.G. did not provide evidence of M.G.'s past or present resources; he merely estimated her earning ability via work and possibly her trust fund. Without evidence about the amount of resources available to her, the Family Code required the trial court to presume that M.G. worked 40 hours per week earning the federal minimum wage. See Tex. Fam. Code Ann. § 154.068(a) ().[10]
Therefore without a statutory basis to set child support based solely on M.G.'s earning potential and in the absence of evidence of M.G.'s total net resources, the trial court could rely only on the current federal minimum wage: $7.25 an hour. See 29 U.S.C.A. § 206(a)(1)(C). Thus, a person earning the federal minimum wage would gross $290 per week and $15,080 per year ($290 multiplied by 52), or $1,257 monthly. L.A.-K., 596 S.W.3d at 398. Under...
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