Opinion
No. 05-04-00190-CV
Opinion Issued July 19, 2005.
On Appeal from the 301st Judicial District Court, Dallas County, Texas, Trial Court Cause No. 92-18345-T.
Reversed and Remanded.
Before Justices WHITTINGTON, MOSELEY, and LANG-MIERS.
MEMORANDUM OPINION
Wendell Henry appeals the trial court's order, confirming child support arrearages and ordering payment of the same. In twelve issues, Wendell attacks the trial court's judgment. Because we conclude there is no evidence to support the trial judge's findings of fact and conclusions of law and no evidence to support the trial court's judgment, we reverse the trial court's judgment and remand this case to the trial court for further proceedings.
After a hearing on November 17, 2003, the trial judge signed an order confirming child support arrearages. On April 1, 2004, the judge entered findings of fact and conclusions of law. This appeal ensued.
We apply the same standards when reviewing the legal and factual sufficiency of the evidence supporting the trial judge's fact findings as we do when reviewing the evidence supporting a jury's answer to a special issue. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). Because we have a complete reporter's record of the November 17, 2003 hearing before us, the trial judge's findings of fact are not conclusive as to our review. See Swanson v. Swanson, 228 S.W.2d 156, 158 (Tex. 1950); Mohnke v. Greenwood, 915 S.W.2d 585, 589 (Tex.App.-Houston [14th Dist.] 1996, no writ).
Most appealable issues in a family law case, including a trial judge's confirmation of child support arrearages, are reviewed under an abuse of discretion standard. Beck v. Walker, 154 S.W.3d 895, 903 (Tex.App.-Dallas 2005, no pet.); Attorney Gen. of Tex. v. Stevens, 84 S.W.3d 720, 722 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Tate v. Tate, 55 S.W.3d 1, 5-6 (Tex.App.-El Paso 2000, no pet.); see Cameron v. Cameron, 158 S.W.3d 680, 682 (Tex.App.-Dallas 2005, pet. denied) We reverse a trial court's judgment only when it appears from the record as a whole that the trial judge abused her discretion. Beck, 154 S.W.3d at 903 (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) and Stevens, 84 S.W.3d at 722). A trial judge abuses her discretion as to factual matters when she acts unreasonably or arbitrarily. Beck, 154 S.W.3d at 903; see Stevens, 84 S.W.3d at 722. A trial judge abuses her discretion as to legal matters when she acts without reference to any guiding principles. Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex.App.-Dallas 2004, no pet.). Under an abuse of discretion standard, legal and factual insufficiency are not independent grounds for asserting error, but are relevant factors in assessing whether a trial court abused its discretion. Niskar, 136 S.W.3d at 753 (citing In re Davis, 30 S.W.3d 609, 614 (Tex.App.-Texarkana 2000, no pet.) and Gray v. Gray, 971 S.W.2d 212, 213 (Tex.App.-Beaumont 1998, no pet.).
Under the family code statutory provisions, the party seeking the arrearages-in this case, the office of the Attorney General of Texas-has the burden of establishing the arrearage amount. See Beck, 154 S.W.3d at 903; Curtis v. Curtis, 11 S.W.3d 466, 472 (Tex.App.-Tyler 2000, no pet.). Once the party seeking arrearages bears the initial burden of establishing the arrearage amount, the party opposing the arrearages-in this case, Henry-has the burden of establishing any relative offsets, counterclaims, or affirmative defenses. See Curtis, 11 S.W.3d at 472; Buzbee v. Buzbee, 870 S.W.2d 335, 339 (Tex.App.-Waco 1994, no writ).
After reviewing the record of the November 17, 2003 hearing, we conclude there is no evidence to support the trial judge's findings of facts or the trial court's judgment. The office of the Attorney General of Texas bore the burden of establishing the difference between payments to be paid Carolyn under the February 23, 1993 divorce decree and any payments made by Henry. The reporter's record of the November 17, 2003 hearing shows no evidence of arrearages or payments was offered or admitted. Nor did the trial judge take judicial notice of the file or of any evidence in the case. In light of the complete absence of any evidence at the hearing, we conclude the evidence is legally insufficient to support the trial judge's findings of fact and the trial court's judgment.
We reverse the trial court's judgment and remand this case for further proceedings.