Norris v. Norris

• Decision Date: 13 September 2001
• Docket Number: No. 08-99-00396-CV,08-99-00396-CV
• Citation: 56 S.W.3d 333
• Parties: (Tex.App.-El Paso 2001) ROBINSON NORRIS, JR., Appellant, v. PATRICIA NORRIS, Appellee
• Court: Texas Court of Appeals

Page 333

56 S.W.3d 333 (Tex.App.-El Paso 2001)

ROBINSON NORRIS, JR., Appellant, v. PATRICIA NORRIS, Appellee.

No. 08-99-00396-CV

Court of Appeals of Texas, El Paso

September 13, 2001

Rehearing Overrule Oct. 10, 2001

Appeal from 383rd District Court of El Paso County, Texas (TC# 96-CM-6773) [Copyrighted Material Omitted]

Before Panel No. 1 Larsen, McClure, and Chew, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice

This is an appeal from a modification order in a suit affecting the parent-child relationship. The associate judge recommended an increase in both child support and visitation.¹ The district court entered an order in conformity with this recommendation. On appeal, Robinson Norris, Jr. (Robin) challenges the increase in child support, the court's failure to decrease the support, the court's finding that it was not in the children's best interest to implement a 50-50 division of periods of possession, and the court's order that he pay Patricia Martinez's² (Patricia) attorney's fees. Finding no error, we affirm.

PROCEDURAL HISTORY

Patricia and Robin were divorced on October 24, 1997, pursuant to an agreed decree. Seven months later, Patricia filed a motion requesting an increase in child support. Pertinent to this appeal, Robin filed a cross-motion seeking a decrease in payments and an increase in his periods of possession.³ The trial court entered the following pertinent findings of fact:

* Robin's net resources for 1997 were $5,228.27 per month.

* The percentage applied to his net resources for child support is 25 percent.

* Child support based on the guidelines would be $1,307.07 per month for 1997.

* Robin's net resources for 1998 were $2,736.21 per month.

* Child support based on the guidelines would be $684.05 per month for 1998.

* Robin's estimate of his gross income for 1999 is $60,000.

* An average gross income over the past two years is $5,741.84 per month yielding net resources of $3,982.11 per month.

* Application of the child support guidelines to $3,982.11 yields $995 per month.

The court ordered Robin to pay Patricia $995 per month, retroactively beginning June 1, 1998. This resulted in an arrearage of $1,740 which Robin was required to pay over a 17-month period.

While the trial court did increase Robin's periods of possession, it found that granting him possession fifty percent of the time as he had requested was not in the children's best interest. The order was modified to include (1) an earlier starting time on Fridays; (2) a later return time on Mondays; and (3) an overnight on Wednesdays, with the Wednesday overnights extending through the summer months, except for Patricia's periods of uninterrupted summer possession. The court also ordered Robin to pay Patricia's attorney's fees in the amount of $1,500.

FACTUAL SUMMARY

At the time of the divorce, Patricia received community property totaling $30,000. Within a short time, she had spent all but $2,000 on certain debts, monies owed her parents, attorney's fees, and expenses she incurred for the children. Her current income is approximately $400 a month, she is living in a home provided by her parents, and she owns restaurant equipment valued at roughly $10,000. Patricia prefers not to sell the equipment, representing the remaining assets of her former business, Cafe Society, because she wants to open another restaurant. She presented no evidence regarding the children's needs or expenses.

Robin is an attorney. For more than ten years, he was employed as a staff attorney by the Texas Court of Criminal Appeals in Austin. He left his position at the court in early December 1996 and ultimately formed a partnership with John Gary Hart. Hart maintains the Austin office; Robin has an office in both El Paso and Austin. His practice now consists primarily of representing criminal defendants in post-death penalty matters.

Pursuant to the terms of the decree, Robin agreed to pay Patricia $850 in monthly child support based on monthly net resources of $3,400.⁴ Both Patricia and Robin sought modification of child support. Robin additionally pursued a modification of his periods of possession, requesting that the children be allowed to live with him every other week.

STANDARD OF REVIEW

In his first two issues for review, Robin complains that the trial court abused its discretion when it ordered an increase in child support because there was legally and factually insufficient evidence to support it. In his next two issues, he contends the court abused its discretion when it failed to order a decrease in child support because he established his entitlement as a matter of law, or at the very least, the court's failure to reduce support was against the great weight and preponderance of the evidence. Where these two standards of review overlap, as they frequently do in family law cases, we employ a hybrid analysis.

Traditional Sufficiency Review

In considering a legal sufficiency or "no evidence" point, an appellate court considers only the evidence which tends to support the jury's findings and disregards all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); Worsham Steel Co. v. Arias, 831 S.W.2d 81, 83 (Tex.App.--El Paso 1992, no writ). If any probative evidence supports the jury's determination, it must be upheld. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). However, a factual sufficiency point requires examination of all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 244 S.W.2d at 660; Lindsey v. Lindsey, 965 S.W.2d 589, 591 (Tex.App.--El Paso 1998, no pet.). In an appeal from a bench trial, findings of fact are the equivalent of jury answers to special issues. Id. at 591. The reviewing court cannot substitute its conclusions for those of the trial court if there is sufficient competent evidence of probative force to support the trial court's findings. Id.

Abuse of Discretion Standard

The term "abuse of discretion" is not susceptible to rigid definition. Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 934 (Tex.App.--Austin 1987, no writ). The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action, but whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986), citing Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (Tex.Comm.App.--1939, opinion adopted). Stated differently, the appropriate inquiry is whether the ruling was arbitrary or unreasonable. Smithson v. Cessna Aircraft Company, 665 S.W.2d 439, 443 (Tex. 1984); Landry v. Travelers Insurance Co., 458 S.W.2d 649, 651 (Tex. 1970). The mere fact that a trial judge may decide a matter within her discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965); Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959).

Which Standard Do We Apply?

Orders concerning child support and periods of possession will not be disturbed on appeal unless the complaining party can demonstrate a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)(applying abuse of discretion standard with regard to child support order); Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)(applying abuse of discretion standard with regard to possession order). The question of conservatorship of a child is addressed to the sound discretion of the trial court when it sits as trier of fact. Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex.Civ.App.--Dallas 1981, no writ). The trial court is in the best position to observe the demeanor and personalities of the witnesses and can "feel" the forces, powers, and influences that cannot be discerned by merely reading the record. Id. Thus, an abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court's decision. Valdez v. Valdez, 930 S.W.2d 725, 731 (Tex.App.--Houston [1st Dist.] 1996, no writ).

Overlapping Standards in the Family Law Context

An appeal directed toward demonstrating an abuse of discretion is one of the tougher appellate propositions. 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, possession and access, or child support. In some instances, the abuse of discretion standard overlaps the traditional sufficiency review. Several courts have concluded that when the trial court's ruling on the merits is reviewed under an abuse of discretion standard, the normal sufficiency of the evidence review is part of the abuse of discretion review and not an independent ground for reversal. Crawford v. Hope, 898 S.W.2d 937, 940-41 (Tex.App.--Amarillo 1995, writ denied)(when standard of review is abuse of discretion, factual and legal sufficiency are not independent grounds of error); accord, Thomas v. Thomas, 895 S.W.2d 895, 898 (Tex.App.--Waco 1995, writ denied); In the Matter of the Marriage of Driver, 895 S.W.2d 875, 877 (Tex.App.--Texarkana 1995, no writ); Wood v. O'Donnell, 894 S.W.2d 555, 556 (Tex.App.--Fort Worth 1995, no writ); In the Interest of Pecht, 874 S.W.2d 797, 800 (Tex.App.--Texarkana 1994, no writ); but see Matthiessen v. Schaefer, 897 S.W.2d 825, 828 (Tex.App.--San Antonio 1994)(Duncan, J., dissenting), rev'd on other grounds, 915 S.W.2d 479 (Tex. 1995)(appellate court should review award of attorney's fees by normal sufficiency of evidence standard, and not subsume...