Radler v. Philavanh

Decision Date06 July 2021
Docket NumberNO. 01-19-00931-CV,01-19-00931-CV
PartiesJOSEPH RADLER, III, Appellant v. AMY PHILAVANH, Appellee
CourtTexas Court of Appeals

On Appeal from the 311th District Court Harris County, Texas

Trial Court Case No. 2009-20542

MEMORANDUM OPINION

Appellant, Joseph Radler, III, challenges the trial court's August 30, 2019 Order in Suit to Modify the Parent-Child Relationship, entered after a bench trial, granting in part, and denying in part, the petition of Radler to modify a previous order in a suit affecting the parent-child relationship. In four issues, Radler contends that the evidence is legally and factually insufficient to support the trial court's finding that Radler's gross monthly resources were at least $3,000 and the trial court erred in "appl[ying] [the] child support guidelines to [Radler's] gross monthly resources," "failing to apply [the] guidelines to decrease [Radler's] medical support [obligation]," and failing to make Radler's reduced child support obligation retroactive.

We affirm.

Background

In 2006, Philavanh gave birth to her and Radler's minor child, J.G.P.R. On December 15, 2009, the trial court signed an Agreed Final Decree of Divorce. On May 5, 2015, the trial court signed an Agreed Order in Suit to Modify the Parent-Child Relationship (the "2015 order"). The 2015 order required Radler to pay $582.44 as his child support obligation each month beginning on November 1, 2014. The order also required Philavanh to provide health insurance for J.G.P.R. and ordered Radler to pay $282.32 as his medical support obligation each month to reimburse Philavanh for health insurance premiums beginning on November 1, 2014. The trial court ordered Philavanh to notify Radler of any changes in the cost of health insurance for J.G.P.R. and allowed Radler's medical support obligation to be changed accordingly.

On September 17, 2016, Radler filed a Petition to Modify the Parent-Child Relationship, alleging that a material and substantial change of circumstances had occurred since the 2015 order and that modification of that order would be in the best interest of J.G.P.R. On October 6, 2017, Radler filed his First Amended Petition to Modify the Parent-Child Relationship, alleging that a material and substantial change of circumstances had occurred since the 2015 order and that modification of that order would be in the best interest of J.G.P.R. Radler asserted that since the 2015 order, his income had changed and "the monthly amount of support ordered differ[ed] by at least twenty percent . . . or $100[] from the amount that would be awarded in accordance with the guidelines of Chapter 154 of the Texas Family Code." (Emphasis omitted.) Radler requested that "[t]he current child support order in effect . . . be terminated," the amount of his monthly child support obligation be reduced, and that "any reduction be made retroactive to the time of service of [his First] Amended Petition on [Philavanh] or her attorney."

On February 7, 2019, Radler filed his Third Amended Petition to Modify the Parent-Child Relationship, continuing to allege that a material and substantial change of circumstances had occurred since the 2015 order and that modification of that order would be in the best interest of J.G.P.R. Radler still asserted that since the 2015 order, his income had changed and "the monthly amount of support ordered differ[ed] by at least twenty percent . . . or $100[] from the amount that would beawarded in accordance with the guidelines of Chapter 154 of the Texas Family Code." (Emphasis omitted.) Radler requested that "[t]he current child support order in effect . . . be terminated," the amount of his monthly child support obligation be reduced, and that "any reduction be made retroactive to the time of service of [his] First Amended Petition on [Philavanh] or her attorney."1

At trial, Radler testified that he graduated from law school in 2012. He is self-employed at his own law firm, the Radler Law Firm, and he has a non-profit organization, SOS Legal Aid, through which he represents clients who cannot afford to pay for legal services. Radler, relying on his 2018 federal tax return,2 testified that his gross income from 2018 was $18,714, making his gross monthly resources $1,560. But Radler also admitted that the gross annual resources amount he calculated—$18,714—was "not exactly how much money c[a]me in" because "[m]ore money c[a]me[] in." Radler stated that in 2018, the total amount of money he made working for his law firm was $36,000.

Radler testified that he believed his net monthly resources were $1,155,3 but he also stated during his testimony that his available net monthly resources were$1,560. Radler requested that the trial court set his child support obligation at $231 per month, which would be twenty percent of $1,155, and he asked that the trial court retroactively apply the reduced child support obligation to October 2017—the date when he filed his first amended petition. As to his medical support obligation, Radler requested that the trial court set the amount of his medical support obligation at $140 per month and that the trial court retroactively apply the reduced medical support obligation to October 2017.

Radler also explained that he believed that certain deposits made into his bank accounts should not be considered income, including a $10,000 loan he received from a friend in 2018 and a certain payment from his insurance company because "[t]hat [insurance] money just passed through" his bank account. Radler noted that he used a portion of the $10,000 loan to pay his past-due child support obligation. Radler had multiple bank accounts, and he stated that he transferred money between his bank accounts. He acknowledged that deposits were made into his personal bank account in 2018, and that Respondent's Exhibit 10 reflected the deposits made into Radler's personal bank account in 2018. Those deposits totaled $45,741.04. The $10,000 loan Radler received went into his other bank account. Radler stated that some of the deposits in his personal bank account in 2018 were transfers from his other bank account.

As to his monthly expenses, Radler testified that his mortgage payment is about $1,024 per month and his car payment is about $176 per month.4 Each month he spends about $150 on gas, $150 on utilities, $110 on cable, telephone, and internet, $400 on groceries, $67.50 on medical expenses, $90.64 on car insurance, $200 on eating at restaurants, $21.70 on a gym membership, and $100 on clothing and entertainment. Radler noted that he is "not paying [his] taxes" and that he used the $10,000 loan he received from his friend to pay his bills. According to Radler, although his monthly expenses exceeded the amount of net monthly resources that he testified were available to him, this was because he used money from his loan each month for his expenses and he did not believe that the $10,000 loan constituted income.

Philavanh testified that Radler's child support obligation at the time of trial was $582.44 per month and his medical support obligation was $270.40. According to Philavanh, when the cost of health insurance for J.G.P.R. decreased to $270.40, she notified Radler of the change and Radler began paying that amount.

During trial, the trial court admitted into evidence various exhibits relevant to Radler's resources.5

In its August 30, 2019 Order in Suit to Modify the Parent-Child Relationship, the trial court set Radler's child support obligation at $400 per month beginning on August 1, 2019. The trial court did not modify Radler's medical support obligation. The trial court issued the following relevant findings of fact and conclusions of law:

Findings of Fact - General
. . . .
12. The [trial] [c]ourt signed a final Order in Suit to Modify [the] Parent-Child Relationship on August 30, 2019.
. . . .
Findings of Fact - Modification
14. The prior orders to be modified are the Agreed Final Decree of Divorce signed by this Court on December 15, 2009, and the Agreed Order in Suit to Modify [the] Parent-Child Relationship signed by this Court on May 5, 2015.
. . . .
30. The amount of child support ordered by the Court is not in accordance with the percentage guidelines.
31. . . . Radler is a licensed attorney practicing in the State of Texas.
32. . . . Radler is capable of full-time work as an attorney.
33. . . . Radler has gross monthly resources of at least $3,000[] per month.
34. The percentage applied to the first $8,550 of . . . Radler's net resources for child support is twenty percent (20%).
35. If the percentage guidelines were applied, . . . Radler's current child support obligation would have been at least $470[] per month.
36. . . . Radler's current child support obligation is $400[] per month.
37. The difference between the amount of child support that could have been ordered under the guidelines of the Texas Family Code and the amount of child support actually ordered is at least $70[] per month.
38. The Court deviated from the child support guidelines in consideration of the additional periods of visitation awarded to . . . Radler.
39. The amount of child support ordered is in the best interest of the child.
. . . .
44. The modifications to the prior orders granted in this case are in the best interest of the child.
45. Any requests for modification of the prior orders that were not granted in this case were denied.
46. All other terms of the prior orders not specifically modified in this case shall remain in full force and effect.
. . . .
Conclusions of Law
. . . .
13. The amount of child support ordered by the Court is not in accordance with the percentage guidelines.
14. . . . Radler should pay child support to . . . Philavanh in the amount of $400[] per month.
. . . .
17. The modifications to the prior orders granted in this case are in the best interest of the child.
18. Any requests for modification of the prior orders that were not granted in this case were denied.
19. All other terms of the prior
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