Pecht, In Interest of

• Citation: 874 S.W.2d 797
• Decision Date: 30 March 1994
• Docket Number: No. 06-93-00082-CV,06-93-00082-CV
• Parties: In the Interest of Jonathan PECHT and Adam Pecht, Children 1 . Texarkana
• Court: Court of Appeals of Texas

Page 797

874 S.W.2d 797

In the Interest of Jonathan PECHT and Adam Pecht, Children

¹

.

No. 06-93-00082-CV.

Court of Appeals of Texas,

Texarkana.

March 30, 1994.

Rehearing Denied April 26, 1994.

Kevin Dubose, Holman Hogan, Houston, for appellant.

Dianne Richards, T. Wayne Harris, Houston, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

BLEIL, Justice.

Gerard Pecht appeals from an order modifying his child support obligation. The primary issue on appeal is whether the trial court abused its discretion in modifying the child support order. Pecht also questions the trial court's award of attorney's fees. We find no abuse of trial court discretion in modifying the support order or in awarding attorney's fees which have support in the evidence. We modify the judgment to set aside the attorney's fees which are not supported by the evidence and, as modified, we affirm.

The Pechts divorced in 1988 and were appointed as joint managing conservators of their two sons, Jonathan, born in 1983, and Adam, born in 1985. Nancy Pecht has primary custody of the children. Under the terms of the divorce decree, Gerard Pecht paid child support of $900.00 a month, fifty percent of the children's private school tuition, and fifty percent of any uninsured medical expenses incurred by the children.

In March 1990, an agreed order modifying Gerard Pecht's child support obligation was entered. Under that order, in addition to the support ordered in the divorce decree, Gerard Pecht was required to pay two-thirds, instead of one-half, of the monthly tuition costs for the private school, not to exceed $800.00 a month for both children. At the time of the hearing, Jonathan attended a private school with an annual tuition cost of $7,500.00. Gerard Pecht was also ordered to pay $320.00 per month as long as his ex-wife employed a full-time housekeeper who worked at least two days a week at his home; however, the housekeeper stopped working at Gerard Pecht's home in June 1992 and now works only for Nancy Pecht.

In 1992, Nancy Pecht filed a motion to modify the child support order. The issue of child support was tried to the court. In May 1993, the trial court entered an order requiring Gerard Pecht to pay a flat amount of $3,500.00 for monthly child support. ² The trial court also issued findings of fact and conclusions of law.

CHILD SUPPORT

Gerard Pecht contends that the trial court abused its discretion by increasing his child support obligations in the absence of evidence of a corresponding increase in the needs of the children since the previous order in March 1990 and by considering the ability of the parents to contribute to the support of the children.

The trial court has the authority to modify a child support order 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. TEX.FAM.CODE ANN. § 14.08 (Vernon 1986 & Supp.1994). The trial court may consider the guidelines for the support of a child that are set forth in the Family Code when determining whether there has been a material and substantial change in circumstances that warrants a modification of an existing child support order if the modification is in the best interest of the child. TEX.FAM.CODE ANN. § 14.056(a) (Vernon Supp.1994). An increase in the needs, standard of living, or lifestyle of the obligee since the rendering of the existing order does not warrant an increase in the obligor's child support obligation. Id.

The court's child support order will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). Under an abuse of discretion standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but are relevant factors in assessing whether the trial court abused its discretion. ³ See Mai v. Mai, 853 S.W.2d 615, 618 (Tex.App.--Houston [1st Dist.] 1993, no writ) (citing to Beaumont Bank, N.A. 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, 801 S.W.2d at 109.

At the time of the hearing appealed from, Gerard Pecht had monthly net resources of $15,874.00. When the obligor's net monthly resources exceed $4,000.00, ⁴ the trial court presumptively applies the percentage guidelines set forth in the statute to the first $4,000.00 of the obligor's net resources. The court may then order additional amounts of child support, depending on the proven needs of the child at the time of the order. ⁵ TEX.FAM.CODE ANN. § 14.055(c), amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 766, § 9, 1993 Tex.Gen.Laws 2989, 2997-98. Other provisions in the Family Code list other factors the trial court may consider when determining the amount of child support to award. See TEX.FAM.CODE ANN. §§ 14.052(b), 14.054 (Vernon Supp.1994). These factors, however, apply only to the first $4,000.00 of net resources. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 (Tex.1993). ⁶ Although Rodriguez involved the initial determination of child support to be included in the divorce decree, the reasoning of Rodriguez has been extended to cases involving the modification of a prior child support order. See Mai, 853 S.W.2d at 622 (following Rodriguez v. Rodriguez, 834 S.W.2d 369 (Tex.App.--San Antonio 1992), rev'd on other grounds, 860 S.W.2d 414 (Tex.1993)).

The trial court ordered Gerard Pecht to pay $3,500.00 in monthly child support. Under Rodriguez, the first $1,000.00 of this amount is a presumptive award based on the statutory percentage guidelines. ⁷ Absent a contrary explanation by the trial court in its findings of fact, this presumptive award can encompass a number of factors that are not limited to the needs of the children. Rodriguez, 860 S.W.2d at 418. The additional $2,500.00 must be based solely on the needs of the children. ⁸ See id.; see also Golias v. Golias, 861 S.W.2d 401, 404 (Tex.App.--Beaumont 1993, n.w.h.) (applying the rules set forth in Rodriguez ).

The supreme court has declined to affirmatively define the term "needs," but has held that it does not include the lifestyle of the family or the income of the parties. Rodriguez, 860 S.W.2d at 417 n. 3. The supreme court, however, has further indicated that the child's needs are not limited to the bare necessities of life. Id. at 417 n. 3. The best interest of the child is the primary consideration when determining the child's needs. TEX.FAM.CODE ANN. § 14.07(a) (Vernon Supp.1994); Rodriguez, 860 S.W.2d at 417 n. 3.

Both of the children have required psychotherapy. The children began seeing Sophia Havasy, a licensed clinical psychologist, in the spring and summer of 1992. Havasy testified at the trial. Based on Havasy's testimony, as well as Nancy Pecht's testimony, the trial court found that the Pechts' youngest son, Adam, has an attention deficit-hyperactivity disorder and suffers from an avoidant disorder with childhood, i.e., he has problems relating with children his own age; and that the oldest son, Jonathan, also has an attention deficit-hyperactivity disorder, suffers from a severe language learning disability, has motor planning difficulties, and is dyslexic. Havasy also testified that Jonathan has difficulty managing his emotional state and can be aggressive.

Both of the boys require medication to control their attention deficit disorder. Nancy Pecht was unable to estimate the monthly cost of the boys' prescriptions. Havasy also thought it would be necessary to work with the Pechts to come up with a behavioral plan to structure and manage the boys when they are at either parent's home. Havasy emphasized the need that children with an attention deficit disorder have for consistency and routine.

Havasy testified that Adam needed further family and group therapy. The usual course of treatment involves nine to twelve months of therapy, then the child is evaluated. If the child is progressing acceptably, then there is another round of group therapy two or three years later. One session of group therapy is usually eight to twelve weeks long with meetings once a week and costs $70.00 for each meeting. Along with the group therapy, there are occasional family sessions scheduled on an as-needed basis. Each of these sessions costs $105.00. Havasy estimated that, for a year's worth of group therapy for Adam, possibly two or three family sessions would be required.

Havasy also testified that change is difficult for Adam, especially when the change makes a lot of demands on him, such as going back to school, and that Adam has voiced suicidal thoughts.

Havasy's recommended treatment for Jonathan is similar to Adam's recommended therapy. The expense would also be similar.

Jonathan currently attends a private school, and Havasy recommended that he continue attending the school because it is one of the best schools in the city for dealing with learning problems as severe as Jonathan's. Jonathan also requires speech therapy classes and participates in occupational therapy because of his motor planning difficulties caused by his inability to control his nervous system.

Havasy testified that attention deficit disorder is considered to be a chronic condition. There is no guarantee that group sessions will not be necessary next year, and the children have to be monitored because their problems may reoccur throughout their youth. Jonathan's problems in particular are chronic conditions, and he may need help at various times. Havasy opined that it is more likely that the children will need professional services down the road than it is that the children's problems will dissipate in the future.

The trial court found that the needs of the children include special health care, a...