Opinion
No. 04-15-00517-CV
05-11-2016
In the INTEREST OF F.A.R. and G.R.R., Children
MEMORANDUM OPINION
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2008-CI-11733
Honorable Eric Rodriguez, Associate Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
Rosemary D. appeals the trial court's order in a suit for modification of support order and to confirm support arrearages. For the reasons that follow, we affirm the trial court's order.
To protect the identity of the minor child, we refer to the parents by their first names and last initials and to the children by their initials. --------
BACKGROUND
Rosemary D. and Alfonso R. were divorced in March 2009, and Alfonso was ordered to pay $400 a month for the support of their three minor children. The support order was modified in July 2010 to require Alfonso to pay child support in the amount of $425 a month. In May 2015, the Office of the Attorney General filed this suit for modification of the support order and for confirmation of arrearages.
At the bench trial, Rosemary and Alfonso appeared pro se and the Attorney General appeared through counsel. At the conclusion of trial, the court found Alfonso was in arrears $8,617 and was entitled to an offset of $3,400, and the trial court rendered judgment in the amount of $5,217. The court found there had been a material and substantial change in circumstances since rendition of the 2010 support order and ordered Alfonso to pay current child support of $231 each month for one child. On appeal, Rosemary complains of both the offset to the arrearages judgment and to the modification of the monthly child support obligation. Neither Alfonso nor the Office of the Attorney General filed a brief on appeal. An audio recording was made of the trial. Although Rosemary did not prepare and file a transcript of the recording, we have reviewed the recording.
STANDARD OF REVIEW
We review the trial court's orders modifying and enforcing child support obligations for abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); In re A.S.G., 345 S.W.3d 443, 449 (Tex. App.—San Antonio 2011, no pet.). A judgment for arrearages will be set aside if no evidence supports it. Granado v. Meza, 398 S.W.3d 193, 194-95 (Tex. 2013) (per curiam). Where, as in this case, no findings of fact or conclusions of law were requested or filed, it is implied that the trial court made all findings necessary to support its judgment. Worford, 801 S.W.2d at 109. In a nonjury trial, the trial court is the "sole judge of the credibility of the witnesses and the weight to be given their testimony." McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986). The trial court may believe one witness, disbelieve others, and resolve inconsistencies in any witness's testimony. Id. at 697. Thus, in determining whether some evidence supports the trial court's implied findings of fact, "it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature." Worford, 801 S.W.2d at 109 (quoting Renfro Drug Co. v. Lewis, 149 Tex. 507, 513, 235 S.W.2d 609, 613 (1950)). "A trial court does not abuse its discretion if it bases its decision on conflicting evidence, and a permissible view of some evidence supports its decision." In re A.S.G., 345 S.W.3d at 449.
OFFSET TO JUDGMENT FOR ARREARS
The Attorney General introduced evidence that Alfonso was in arrears $8,617. Alfonso contended that he should receive a credit for the support he provided when one of the children lived with him. The trial court granted Alfonso an offset of $3,400.
Section 157.008 of the Texas Family Code provides that an obligor parent may assert an affirmative defense to enforcement of a child support order in some circumstances when the obligee parent has relinquished possession and control of a child. TEX. FAM. CODE ANN. § 157.008 (West 2014). An obligor parent who had possession and control and who provided actual support for the child during periods of time exceeding court-ordered possession may seek an offset. Id.; see In re A.M., 192 S.W.3d 570 (Tex. 2006); Beck v. Walker, 154 S.W.3d 895, 903-06 (Tex. App.—Dallas 2005, no pet.). On appeal, Rosemary contends the trial court erred in granting an offset because there was insufficient evidence to prove that Alfonso had "custody" of any of the children, and because he did not present evidence of the direct support he provided.
Both Alfonso and Rosemary testified that F.A.R. left Rosemary's home sometime after the 2010 support order was rendered, and that he moved among relative's houses, staying several months at a time. Rosemary testified F.A.R. lived at various times with her, her mother, her brother, and Alfonso's brother. Rosemary denied that F.A.R. ever lived with Alfonso. Alfonso agreed with Rosemary that F.A.R. lived at times with Rosemary's mother and brother and with Alfonso's brother. Alfonso testified that F.A.R. also stayed at Alfonso's mother's house at times, and that he lived with Alfonso for extended periods on multiple occasions. Alfonso testified that F.A.R. would stay with him a few months, move, and then return. He testified that between July 2010 and June 2015, when F.A.R. graduated high school, he supported F.A.R. in his household a total of at least thirty months. Alfonso testified that he claimed F.A.R. as a dependent on his tax return in three of those years. Rosemary disputed that testimony, stating that she had claimed F.A.R. in each year except 2014, and denies that Alfonso was ever entitled to do so. Neither parent's tax returns were offered into evidence.
The evidence of whether F.A.R. lived with Alfonso for extended periods of time was disputed. The trial court was entitled to believe Alfonso, who unequivocally testified he supported F.A.R. in his household for at least thirty months, cumulatively, and to disbelieve Rosemary. See McGalliard, 722 S.W.2d at 697. Alfonso was not required to provide evidence of actual expenditures he made in support of F.A.R. when F.A.R. was living with him. See Beck, 154 S.W.3d at 895. We therefore overrule Rosemary's issues concerning the offset.
MODIFICATION OF CURRENT CHILD SUPPORT OBLIGATION
The 2010 support order required Alfonso to pay $425 a month for three children. However, the order did not contain a "step down" provision reducing the amount of support when a child turned eighteen and finished high school. When the modification suit was filed, the oldest child was nineteen and not in high school. F.A.R. was eighteen years old and in high school when the suit was filed, but he graduated before trial. The youngest child, G.R.R., is still a minor and resides with Rosemary.
Alfonso testified about his current employment and income, and the Attorney General provided the court calculations of current child support based on Alfonso's testimony and the statutory guidelines. Based on Alfonso's testimony and the guidelines, child support for one child would be set at $231 a month. See TEX. FAM. CODE ANN. §§ 154.061, 154.062, 154.125 (West 2014 & Supp. 2015).
Rosemary opposed any reduction in child support, contending that Alfonso was misrepresenting his income and actually has another job. The only evidence she offered in support of this contention was that her oldest son had told her a few months earlier that Alfonso had a second job. The trial court was within its discretion to accept Alfonso's testimony about his employment and income, and has discretion to set child support within the parameters established by the statutory child support guidelines. See Rodriguez v. Rodriguez, 860 S.W.2d 414, 415 (Tex. 1993).
Rosemary also complains that the Attorney General did not sufficiently investigate or confirm Alfonso's income and that the trial court erred by failing to require such confirmation. However, the record does not reflect what, if any, investigation or discovery of Alfonso's employment and income may have been done by the Attorney General. Moreover, the record does not reflect that Rosemary requested any discovery or objected to the failure to produce any documents relating to income and employment. We therefore overrule Rosemary's issues relating to the order modifying child support.
We affirm the trial court's judgment.
Luz Elena D. Chapa, Justice