Mai v. Mai

• Decision Date: 18 March 1993
• Docket Number: No. 01-92-00611-CV,01-92-00611-CV
• Citation: 853 S.W.2d 615
• Parties: John Henry MAI, Appellant, v. Cathie Duffy MAI, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 615

853 S.W.2d 615

John Henry MAI, Appellant, v. Cathie Duffy MAI, Appellee.

No. 01-92-00611-CV.

Court of Appeals of Texas Houston (1st Dist.).

March 18, 1993.

James T. Lombardino, Houston, for appellant.

Sarah Smith Dickson, League City, Scott Lyford, Galveston, for appellee.

Before HEDGES, DUGGAN and O'CONNOR, JJ.

OPINION

HEDGES, Justice.

Appellant, John Henry Mai, appeals from a child support modification order. In five points of error, he asserts that the evidence is legally and factually insufficient to support the award; that the trial court abused its discretion in setting the award in an amount greater than (1) the guidelines for child support set forth in the Family Code, and (2) the needs of the children; and that the trial court erred in failing to make additional findings of fact. We reverse and remand.

Appellant and appellee were married on February 22, 1970, separated on April 29, 1981, and divorced as of July 30, 1982. The couple had three children. The divorce decree required appellant to pay $150 per week in child support until the last child had reached the age of 18 years. By judgment dated July 9, 1983, child support was set at $120 per week until January 24, 1983, $80 per week until the second child reached 18 years, then $40 per week until the third child had reached 18 years. Appellee has not remarried and continues to live in the house owned by the couple when they separated. Appellant has remarried. About the time of the divorce, he left the job he had held during the marriage and started his own business.

On February 21, 1990, appellee filed a motion to modify child support for the two younger children, Matthew and Christopher. She sought to increase child support, to lengthen the term of payments through their graduation from high school, and to require appellant to maintain major medical, hospital, and dental insurance on the children through his employer and reimburse appellee for half of all health care expenses not covered by insurance. On November 15, 1991, appellee filed an amended motion to modify alleging that the youngest child, Christopher, had a physiological disorder/disability that required continuous special care and learning facilities for an indefinite period.

On March 4, 1992, the parties agreed that they would have joint managing conservatorship of Christopher, that appellant would get the tax deduction for Christopher as long as he pays child support and court-ordered expenses, that Christopher would remain in counseling with a designated psychologist, and that one-half the cost for this counseling not paid by insurance would be paid by each party. The issue of child support was then tried to the court. Both parties testified and were represented by counsel.

On April 8, 1992, appellant timely requested that certain findings of fact be recited in the child support order as provided by TEX.FAM.CODE ANN. § 14.057 (Vernon Supp.1993). The trial court issued its order to modify on April 14, 1992, requiring appellant to pay $1,900 per month in child support beginning July 1, 1991, until Matthew graduated from high school, married, died, had a disability removed, was otherwise emancipated, or there was a further order modifying child support; and $1,500 thereafter until Christopher was likewise emancipated. The trial court recited its findings in its order modifying child support:

1) The amount of net resources available to Obligor [appellant] per month is $7647.39;

2) The amount of net resources available to Obligee per month is $2596.24;

3) The amount of child support payments per month that is computed if section 14.055, Family Code, is applied, is $1911.85;

4) The percentage applied to the obligor's net resources for child support by the actual order rendered by the court is 24.84507%; and, if applicable,

5) The specific reasons the amount of support per month ordered by the court varies from the amount computed by applying the percentage guidelines pursuant to section 14.055, Family Code, are: Rounded down to even $1900 after rounding gross up to even $11,000 from $10,970 which is 1/12 of average of 1989 and 1990 adjusted gross incomes.

On April 28, 1992, appellant requested findings of fact and conclusions of law in accordance with TEX.R.CIV.P. 296. On April 30, 1992, the trial court issued its findings of fact and conclusions of law, including finding number nine: "Christopher Mai requires continuous care and personal supervision because of a physiological disorder/disability and will be required to have special care and learning facilities."

On May 11, 1992, appellant requested that the trial court make additional findings of fact and that finding nine be deleted. In response, the trial court added a finding that "Upon granting the Motion to Modify in Suit Affecting the Parent-Child Relationship, the parties were named joint managing conservators." The trial court also deleted finding nine regarding Christopher's special care and learning needs.

In point of error three, appellant asserts that the trial court abused its discretion in awarding child support in the amount of $1,900 per month for two children and $1,500 per month for one child. In points of error one and two, appellant asserts that the evidence is legally and factually insufficient to support the award. In point of error four, appellant asserts that the trial court erred in setting the award above the percentage guidelines set forth in TEX.FAM.CODE ANN. § 14.055 (Vernon Supp.1993) and at an amount greater than the needs of the children. In point of error five, appellant asserts that the trial court erred in refusing his requested additional findings relating to his net monthly resources. Points of error one, two, four, and five raise factors which we consider to determine whether the trial court abused its discretion in setting the award, as asserted in point of error three. Under an abuse of discretion standard, legal and factual insufficiency are not independent reversible grounds of error but are rather relevant factors in assessing whether the trial court abused its discretion. See Beaumont Bank v. Buller, 806 S.W.2d 223, 226 (Tex.1991). 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, 109 (Tex.1990).

In this case, the trial court issued findings of fact and conclusions of law. Findings of fact in a case tried to the court have the same force and dignity as a jury's verdict upon special issues. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App.--Houston [14th Dist.] 1977, writ ref'd n.r.e.). Findings of fact are not conclusive, however, when the record includes a complete statement of facts. Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex.App.--Houston [14th Dist.] 1985), writ ref'd n.r.e. per curiam, 699 S.W.2d 199 (Tex.1985).

In reviewing legal insufficiency points of error, we consider only the evidence and the inferences that, when viewed in their most favorable light, tend to support the finding and disregard all evidence to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988); Giangrosso v. Crosley, 840 S.W.2d 765, 768 (Tex.App.--Houston [1st Dist.] 1992, no writ). If there is more than a scintilla of evidence, the no evidence point fails. See Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987).

In reviewing factually insufficient points, the court must examine all of the evidence. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986). An insufficient evidence assignment of error succeeds only if a finding is so against the great weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. In re King's Estate, 244 S.W.2d 660, 661 (Tex.1951); Giangrosso, 840 S.W.2d at 768.

Appellant first complains that the trial court erred in determining his net resources because it ignored his uncontradicted testimony that his 1992 gross monthly income is $3,900 per month, or $2,859 after taxes. Appellant argues that when the percentage guidelines are applied to this net income, he should have been required to pay "$714.90 per month for two children, and $571.92 per month for one child." The trial court declined to adopt the following proposed findings of fact submitted by appellant:

M) Respondent's monthly gross wages are $3,900 per month.

N) Finding # 7 should be amended as follows: the net resources available to Respondent for the part of child support each month, at the time of trial is $2,859.61.

....

Q) Respondent presented uncontradicted testimony that his gross salary at time of trial was $900 per week.

Appellee counters that appellant waived his request for additional findings because he filed his request one day late under TEX.R.CIV.P. 298. Rule 298 provides that the request for findings "shall be made within ten days after the filing of the original findings and conclusions by the court." The trial court filed its findings on April 30, 1992. Appellant filed his request on May 11, 1992. The request was timely because the 10th day after the court filed its findings was a Sunday, and May 11, 1992, was the following day. TEX.R.CIV.P. 4.

We find that there is sufficient evidence in the record to support the trial court's determination of appellant's net resources of $7,647.39 per month. Appellant testified that he had a high school education and was the president and sole stockholder of Midway Machine Shop. He started the business about 10 years ago after leaving Grumman Aerospace where he was a machinist. The business does "field-related machine work and also sell[s] aerospace and defense-type machine work." His machine shop is dependent primarily on the oil and aerospace industries and on defense contracts.

At trial, appellant's 1989 and 1990 tax returns, 1991 W-2 and 1099 forms, his sons' tax returns for...