Opinion
No. 05-02-01537-CV.
Opinion issued April 29, 2003.
Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-52795-98.
Affirmed.
MEMORANDUM OPINION
In two issues, Lloyd E. Ward challenges the trial court's denial of Ward's motion to modify child support, contending the trial court erred (1) in finding Ward was intentionally underemployed and (2) in failing to reduce the child support after finding Ward was expecting a second child by a separate marriage. We affirm the trial court's judgment.
To be entitled to a modification of the child support order, Ward was required to show there had been a material and substantial change in the circumstances of the child or a person affected by the prior order since the time the order was entered. Tex. Fam. Code Ann. § 156.401(a)(1) (Vernon 2002). We review the trial court's denial of Ward's motion to modify for an abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam).
In his first issue, Ward argues there is no evidence to support the trial court's oral statement Ward is intentionally underemployed. However, the trial court denied Ward's motion to modify without specifying its basis for doing so, and Ward did not request the trial court enter findings of fact. Oral statements by the trial court that allegedly explain its decision cannot be substituted for absent findings of fact. In re W.E.R., 669 S.W.2d 716, 716 (Tex. 1984) (per curiam); Tex. Dep't of Pub. Safety v. Wilmoth, 83 S.W.3d 929, 931 (Tex.App.-Amarillo 2002, no pet.).
When no findings of fact are filed, we must imply all necessary findings to support the judgment. Worford, 801 S.W.2d at 109. Further, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. In re W.E.R., 669 S.W.2d at 717.
After reviewing the record, we cannot say the trial court abused its discretion when it rejected Ward's allegations that his own financial circumstances had materially and substantially changed. The evidence showed that Ward was a lawyer who had been in practice for eighteen years. Although Ward claimed his income had decreased due to a loss of clients, the trial court could have reasonably found that this decrease was temporary and that, due to Ward's education and past employment history, Ward's financial condition had not materially and substantially changed. Norris v. Norris, 56 S.W.3d 333, 340 (Tex.App.-El Paso 2001, no pet.) (range of net resources can be used to calculate child support when income varies from month to month); Starck v. Nelson, 878 S.W.2d 302, 308 (Tex.App.-Corpus Christi 1994, no writ) (temporary slump in income does not rise to level of a material and substantial change). We overrule Ward's first issue.
In his second issue, Ward contends the trial court erred in refusing to modify the child support order because the pending birth of Ward's second child was a material and substantial change in circumstances. Even if Ward's child had been born prior to the hearing on the motion to modify, the birth of an additional child, without more, "is insufficient to support a material and substantial change in circumstances." In re D.S., 76 S.W.3d 512, 520 (Tex.App.-Houston [14th Dist.] 2002, no pet.); see Swate v. Crook, 991 S.W.2d 450, 454 (Tex.App.-Houston [1st Dist.] 1999, pet. denied), abrogated on other grounds by Smith v. Brown, 51 S.W.3d 376, 381 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). Further, there is no evidence of any additional expenses associated with the second child that would constitute a material and substantial change in Ward's circumstances. See In re D.S., 76 S.W.3d at 520; Swate, 991 S.W.2d at 454. We overrule Ward's second issue.
We affirm the trial court's judgment.