Striegler, In Interest of

• Decision Date: 01 February 1996
• Docket Number: No. 07-95-0239-CV,07-95-0239-CV
• Parties: In the Interest of Zabette Rene STRIEGLER.
• Court: Texas Court of Appeals

Page 629

915 S.W.2d 629

In the Interest of Zabette Rene STRIEGLER.

No. 07-95-0239-CV.

Court of Appeals of Texas Amarillo.

Feb. 1, 1996.

Rehearing Overruled Feb. 28, 1996.

Barbara D. Campanelli, Lubbock, for appellant.

Purdom Law Offices (Thomas J. Purdom), Lubbock, for appellee.

Before REYNOLDS, C.J., and BOYD and QUINN, JJ.

BOYD, Justice.

In twelve points of asserted error, appellant Allan Ayers Striegler (Allan) challenges a trial court order finding him to be $23,899.24 delinquent in the payment of child support to Saundra Lou Striegler Ford (Saundra). For reasons we later discuss, we affirm the judgment of the trial court.

In his first six points, Allan argues the trial court erred in 1) failing to file findings of fact and conclusions of law in accordance with § 14.057(a) of the Texas Family Code; 2) failing to make a proper determination of his net resources in accordance with Texas Family Code § 14.053 because it improperly failed to reduce them by the amount of his long-term mortgage payment on income producing real property; 3) finding there had been no change in the status of the child's property since rendition of the order and that the circumstances of no one affected by the order had materially and substantially changed to justify a decrease; 4) finding he was not entitled to a retroactive decrease in child support because the evidence was both legally and factually insufficient to support that finding; 5) finding the amount of child support was in substantial compliance with statutory child support guidelines; and 6) finding he did not allege any affirmative defenses pursuant to § 14.40(g) of the Texas Family Code.

In his last six points, Allan avers the trial court erred in 7) finding he intentionally engaged in farming and resort activities knowing they would not produce income when he could have been gainfully employed elsewhere; 8) & 9) finding he failed to pay child support on January 1 and January 15, 1989 because the doctrine of collateral estoppel barred relitigation of that issue, and the evidence was legally and factually insufficient to support that finding; 10) finding him delinquent in payment of child support in the amount of $17,950 because there is no evidence to support that finding; 11) making the finding that he owed $5,949.24 of accrued interest, because there was no evidence to support the finding, and 12) allowing appellee's attorney to testify concerning attorney's fees, and awarding attorney fees based upon

that testimony. The nature of Allan's challenge requires us to review the relevant history of the case and the evidence produced at trial in some detail.

HISTORY

Zabette Rene Striegler was born to the marriage of Allan and Saundra on February 24, 1976. The marriage was dissolved on October 12, 1976, and, on January 17, 1986, by an agreed order, Allan's child support obligation was increased to $650 payable in equal installments on the first and fifteenth of each month. In September of 1988, Allan filed a motion to decrease the child support. Saundra replied by seeking an increase in support. After various hearings, one of which resulted in an order increasing child support reversed by this court, the trial court entered its order on March 23, 1995, finding Allan to be delinquent in child support in the amount of $23,899.24, finding him to be in contempt of court, ordering his confinement, awarding interest on the delinquency, and awarding attorney fees of $10,281.25 to Saundra. Hence, this appeal.

EVIDENCE

In support of his position that his finances and circumstances had substantially changed to his detriment, Allan presented extensive testimony about how the value of the property he owned at the time of the prior order had declined. He averred that most of his income is from mineral royalties with smaller amounts of income from grass and hunting leases. For example, he testified, in January 1986 he owned a 2,000 acre tract of land in Sutton County which, at the time, was worth $400 per acre and was encumbered with a mortgage he described as amounting to $280,000 "in principal." From the land, he received royalty income that was "as high as over a hundred thousand a year in the '80's to--and it varies from month to month and year to year. My last check was $2,800 for a month."

In 1985-86, Allan also had somewhat unprofitable investments and sole proprietorships including a commercial fishing enterprise, an oil lease in San Antonio, a "lease" in Kentucky, and a farming and ranching operation. He also had bank accounts, "some CD's," and was trying to put money in an I.R.A. At that time, he had a 1983 Oldsmobile, a 1980 Dodge pickup, and a 1986 Chevrolet pickup that belonged to the "corporation" that he claims he still owns today.

At different times, Allan owned property in Eastland and Stephenville, as well as various undivided interests in land in Stephens, Hood, and Comanche counties. He sold several of these interests to acquire, finance and operate an entity known as Thurber Lake Resort. He then used royalty payments and proceeds from Thurber Lake Resort installment land sales to make mortgage payments on the "Sonora Property" in Sutton County.

It is Allan's contention that since 1986, his royalty income has dropped drastically, which has affected his ability to make mortgage, property tax, and child support payments. He testified that to make his payments, he did "[w]hatever it took. Whether I had to sell cattle or sell farm equipment, or use savings. Try to sell some land or borrow it if I needed to." He averred that all offers to buy his land have been "unacceptable," except an offer to buy a 35-acre tract he sold 2-3 years ago.

According to Allan, around January 1, 1989, he became involved in the Thurber Lake Resort to help make payments on the Sonora Land. He traded the ranch in Erath County, assumed a note, and, using his Eastland ranch as collateral, borrowed approximately $160,000. When the Thurber Lake project made no money, he deeded the property to the Thurber Lake Resort, Inc., a corporation owned by his brother John Striegler. ¹ What next ensued was a series of complex transactions which resulted in various properties being owned by the Thurber Lake Resort, Inc., the Thurber Lake Private Resort, Inc. (his corporation), and the A.B. Culbertson Company, trustee for John Striegler's I.R.A. account.

To rebut allegations that his circumstances had not materially and substantially changed since entry of the agreed judgment, Allan offered evidence that he has not bought any new cars, art, jewelry, or similar items since 1986. He said that because of financial stress, his standard of living has decreased and that he paid $300 a month child support beginning in September or October of 1990. When Zabette turned 18 in February 1994, he continued to pay $300 per month until she finished high school, at which time he paid $1,000. He testified that from 1990-1994, he borrowed money from his brother to make payments on the Sonora property and still owed the "majority" of that money he borrowed.

Upon cross-examination, testimony was elicited from Allan that although he asserted he borrowed money from his brother to pay on the Sonora property, there was no deed of trust evidencing any such indebtedness. In fact, a review of the county records would indicate Allan owned the property "free and clear." With respect to the Thurber Lake investment, Allan admitted that although he knew it had been a loser, he was still hopeful and was staying involved in it to avoid a class action law suit. When queried about how he spent his days, he admitted that although it varied from day to day, most of his time was spent at the resort. In the course of a long explanation of how much he owed various lenders, he admitted that in 1989, while his motion to decrease his child support payments was pending, he invested $160,000 in the Thurber Lake Resort.

SAUNDRA'S TESTIMONY

Saundra's salary increased from $29,420 in 1986-87 to $37,300 in 1993-94. After the child support increase ordered in 1986, she spent $13,478 on a car and $69,888 on the house in which she resides. She admitted that from 1986 to 1989, all of Zabette's needs were being met, and, in November 1986, she began investing $100 per month in savings bonds. She remarried in 1988 but in 1990, her husband died. As a result of his death, she received approximately $400,000, part of which she used to pay for her residence. As a result of her stepfather's death, Zabette also began receiving social security payments of approximately $380 per month. Saundra then made a series of purchases including a hot tub, a car, ² a bedroom suite for Zabette, a sprinkler system, a country club membership, a horse, jewelry, and an alarm system. She also made several trips, including a cruise and a trip to Europe for herself and Zabette. She said that even though Allan had failed to pay child support, she was able to do these things because of the money she received at her husband's death. She also said Zabette was attending Texas Christian University.

Reiterated, in his first point, appellant complains the trial court failed to file findings of fact and conclusions of law and, as a result of this failure, he cannot ascertain the basis for the trial court judgment. The record reveals that after appellant requested findings of fact and conclusions of law, the trial judge signed a 28-page order detailing the dates and amounts of appellant's delinquent child support, the punishment assessed, the reduction to money judgment, and attorney fees awarded. Allan then made a "Request for Additional and Amended Findings of Facts and Conclusions of Law" suggesting several specific changes in the findings and conclusions. In response, the trial court entered an instrument expressly entitled "Findings of Fact and Conclusions of Law."

The gist of Allan's complaint is that none of the instruments executed by the trial court contain findings...