MacCallum v. MacCallum

• Decision Date: 13 December 1990
• Docket Number: No. 13-90-306-CV,13-90-306-CV
• Citation: 801 S.W.2d 579
• Parties: Peter S. MacCALLUM, Jr., Appellant, v. Mary Sue MacCALLUM, Appellee.
• Court: Texas Court of Appeals

Page 579

801 S.W.2d 579

Peter S. MacCALLUM, Jr., Appellant, v. Mary Sue MacCALLUM, Appellee.

No. 13-90-306-CV.

Court of Appeals of Texas,

Corpus Christi.

Dec. 13, 1990.

Rehearing Overruled Jan. 17, 1991.

Pat Morris, Nicolas, Morris & Barrow, Corpus Christi, for appellant.

Michael P. O'Reilly, Corpus Christi, for appellee.

Before BENAVIDES, KENNEDY and DORSEY, JJ.

OPINION

BENAVIDES, Judge.

Pete MacCallum, Possessory Conservator, appeals the trial court's denial of his motion to modify child support and periods of possession and the trial court's unsolicited order placing restrictions on his sons' activities while they are in his possession. He raises eleven points of error related to evidence of a change of circumstances, to the amount of child support due, to the length and conditions of his sons' visits, and to the awards of attorney's fees to his ex-wife Mary Sue MacCallum. We affirm the trial court's judgment in part and reverse and render it in part.

Pete and Mary Sue were divorced on October 27, 1987. Mary Sue was appointed managing conservator of their two sons, Peter (born 2/20/81) and Luke (born 11/09/82), and Pete was appointed possessory conservator. The court's order set child support at $865.00 a month and set out Pete's visitation rights with his sons. On January 31, 1989, the court entered an order clarifying the final divorce decree. The order clarified and extended the time allowed with either parent on Mother's Day, on Father's Day and in the summer.

On May 8, 1989, Pete filed a motion to modify the child support. He amended the motion on August 24, 1989. The amended motion sought (1) a reduction in child support, (2) an increase in Pete's periods of possession with his sons and (3) dissolution of the clarifying order dealing with possession, which was allegedly signed by the judge ex parte on January 31, 1989.

Mary Sue's answer was a general denial with a plea for attorney's fees and expenses through final judgment. After a hearing, the trial court denied the motion, awarded Mary Sue attorney's fees, and entered an order placing restrictions on the activities of the boys when they visited Pete. Subsequently, pursuant to Pete's request, the trial court entered specific findings of fact. Additionally, the court found that Pete had caused his children to operate farm equipment and to be involved in the mixing and application of dangerous farm chemicals, such as herbicides and pesticides. The court's final findings were that Mary Sue was entitled to attorney's fees of $1,680 for the trial and $3,500 in the event of appeal.

MODIFICATION OF CHILD SUPPORT AND VISITATION

"[T]he best interest of the child" shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to a child. Weimer v. Weimer, 788 S.W.2d 647, 650 (Tex.App.--Corpus Christi 1990, no writ); Texas Family Code Ann. § 14.07(a) (Vernon 1986). Trial courts have wide discretion in determining the best interests of the child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); Weimer, 788 S.W.2d at 650. The trial court's judgment regarding what serves the best interest of the children with regard to child support and visitation, specifically the establishment of terms and conditions of the conservatorship, is a discretionary function of the trial court and will only be reversed if we conclude that the trial court has abused its discretion. Oglesby v. Silcott, 620 S.W.2d 820, 824-25 (Tex.Civ.App.--Tyler 1981, no writ); see also Klise v. Klise, 678 S.W.2d 545, 547 (Tex.App.--Houston [14th Dist.] 1984, no writ); White v. Adcock, 666 S.W.2d 222, 225 (Tex.App.--Houston [14th Dist.] 1984, no writ). "The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable." Worford v. Stamper, 801 S.W.2d 108, ---- (1990) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)).

Pete raises nine points of error related to child support and visitation. His first seven points relate to the trial court's denial of his motion for modification of child support. His eighth and ninth points relate to the trial court's refusal to modify visitation and the trial court's order of restrictions on visitation. We can reverse on any of those points only in the event of an abuse of discretion on the part of the trial court.

A. CHILD SUPPORT

By his first point of error, Pete contends that the trial court erred in denying a reduction in child support on the grounds that he had failed to present adequate evidence of change in circumstances. He argues that a preponderance of the evidence shows that there was a change in the circumstances. He also argues that the Legislative Guidelines of Tex.Fam.Code Ann. may constitute a change in circumstances and that they create a rebuttable presumption. Pete argues these same grounds in his second point of error in which he challenges the trial court's finding of fact number one that he had presented no evidence of a change in circumstances.

A showing of a material and substantial change of circumstances is required in an motion to modify child support. This is so because an action to modify child support is governed by Tex.Fam.Code Ann. § 14.08(c)(2) (Vernon Supp.1990) (1987 version amended by Acts 1989, 71st Leg., ch. 371, § 6, eff. Sept. 1, 1989). This section provides:

After a hearing, the court may modify an order or portion of a decree that provides for the support of a child if the circumstances of the child or a person affected by the order or portion of the decree to be modified have materially and substantially changed since the date of its rendition, except that a support order may be modified only as to obligations accruing after the earlier of the date of service of citation or an appearance on the motion to modify. (emphasis ours).

In determining whether a modification in child support payments is appropriate, the trial court should examine the circumstances of the child and parents at the time the prior decree was rendered in relation to the circumstances existing at the time the prior order is sought to be modified. S.A.B.S. v. H.B., 767 S.W.2d 860, 862 (Tex.App.--Corpus Christi 1989, no writ). Therefore, evidence regarding the parents' financial circumstances or the child's financial circumstances and needs at the time of the divorce and the time of the modification hearing should be presented to the trial court such that the trial court can determine whether the circumstances of the child or the parties affected by the decree have materially and substantially changed since the date of the decree sought to be modified. See Id. Succinctly, Pete had to show: (1) his financial circumstances existing as of the time of the order sought to be modified and the conditions existing as of the time the motion for modification was filed or (2) the financial circumstances and needs of his sons existing at the time the order was signed and currently.

The record shows that Pete admitted that his gross income increased. The evidence presented by Pete and his CPA showed that all of Pete's monthly expenses, except for monthly health insurance and food expenses, were considered business expenses and deducted from Pete's gross income of $115,693.00. Those "business" expenses which were deducted included Pete's home telephone, utility, housekeeping, pet, entertainment, and transportation expenses. The court could have inferred that Pete's business expense deductions were "padded" and that the remaining $420.00 per month, which he claimed was all that he had available from which to pay child support, was not a trustworthy or credible figure. In light of such evidence and considering the mandate that the best interest of the child is the primary consideration of the trial court, we cannot say that the trial court abused its discretion in finding that no evidence was presented sufficient to prove a change of circumstances. Notwithstanding our finding of no abuse of discretion on the trial court's part, we note that Pete did not present any evidence regarding the past and present financial circumstances and needs of his sons.

In his argument related to all his points of error challenging the trial court's judgment denying modification of child support, Pete places great reliance on the child support guidelines in the Family Code, arguing that these guidelines mandate a modification of his child support obligation. The child support guidelines create a rebuttable presumption that an order entered pursuant to the guidelines is correct and is in the best interest of the child. See § 14.055. Pete's argument presumes that the trial court is required to apply the rebuttable presumption that an order in compliance with the guidelines is reasonable and in the best interest of the child. See Tex.Fam.Code Ann. § 14.055 (Vernon Supp.1990). In modification of previous orders, however, the use of the rebuttable presumption is discretionary, not mandatory. See Tex.Fam.Code Ann. § 14.056. Section 14.056 of the Family Code provides that the trial court may consider the guidelines for the support of a child in the Family Code to determine whether there had been a material and substantial change in circumstances under § 14.08(c)(2) of the Family Code that may warrant a modification of an existing child support; if the amount of child support contained in the order is not in substantial compliance with the guidelines, this may warrant a modification of a prior order in accordance with the guidelines if the modification is in the best interest of the child. Tex.Fam.Code Ann. § 14.056(a) (Vernon Supp.1990).

The fact that the trial court could consider the guidelines does not change Pete's burden of proof or create elements that establish the need for modification. Under the circumstances of this case, we find no...