Opinion
No. 05-03-00214-CV.
Opinion Filed April 26, 2004.
On Appeal from the 330th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 87-06756-Y.
Affirm.
Before Justices MOSELEY, O'NEILL, and RICHTER.
MEMORANDUM OPINION
Appellant Mark A. Russell (Father) appeals the trial court's denial of his motion for sanctions. In a single issue, Father contends the trial court should have ordered opposing counsel to pay his attorney's fees, expenses and court costs. In a cross-point of error, appellee K.N.R. asserts the trial court should have granted her motion for enforcement of underpaid child support. For the following reasons, we affirm the trial court's judgment.
Father and Heather Fassett Russell were divorced on February 12, 1988. Pursuant to the divorce decree, Father was ordered to pay child support to Heather for their only child K.N.R., who was then four years old. Father paid all the support required by the support order and subsequent modifications. Shortly after her eighteenth birthday and after Father's obligations under the support order had ceased, K.N.R. filed a "Motion for Enforcement of Underpaid Child Support." In the motion, K.N.R. sought a retroactive increase in the amount of child support she asserts Father should have been required to pay when she was a minor. She alleged she was entitled to this support because the trial court had not considered Father's community property interest in his second wife's income or his standard of living when child support was previously determined. Father answered with a general denial and a motion for sanctions against K.N.R. and her attorney Lawrence L. Beason alleging K.N.R.'s motion was groundless and brought in bad faith.
Following a hearing, the trial court denied K.N.R.'s motion for "enforcement." The trial court also denied Father's motion for sanctions. In a single issue, Father contends he was entitled to sanctions as a matter of law against K.N.R.'s attorney, Beason, because the suit was groundless and brought in bad faith or for purposes of harassment.
Father concedes the appropriate standard of review is an abuse of discretion. See Elkins v. Scotts-Brown, 103 S.W.3d 664, 667 (Tex. App.-Dallas 2003, no pet.); New York Underwriters Ins. Co. v. State Farm Mut. Auto. Ins. Co., 856 S.W.2d 194, 204 (Tex. App.-Dallas 1993, no pet.). In determining whether a trial court has abused its discretion, we determine whether the trial court's action was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985); A.J.'s Wrecker Serv. of Dallas, Inc. v. Orozco, 68 S.W.3d 45, 48 (Tex. App.-Dallas 2001, no pet.). Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Downer, 701 S.W.2d at 241-42. Under the abuse of discretion standard, challenges to the sufficiency of the evidence are not independent grounds for review, but are relevant factors in assessing whether the trial court abused its discretion. Deltuva v. Deltuva, 113 S.W.3d 882, 886 (Tex. App.-Dallas 2003, no pet.).
The trial court found K.N.R.'s motion to modify was not groundless and was not brought in bad faith or for purposes of harassment. Consequently, the trial court denied Father's motion for sanctions. In his brief, Father cites rule 13 of the rules of civil procedure, section 10.001 of the civil practice and remedies code, and section 156.005 of the Family Code in support of his argument that sanctions were required as a matter of law. Father does not, however, separately brief how each provision necessitated sanctions in this case. Instead, he generally argues that sanctions were required because the assertions in the motion to enforce were "so wrong" as to establish "bad faith" and "intent to harass" as a matter of law.
Courts must presume a lawsuit was filed in good faith and a party moving for sanctions must overcome this presumption. Appleton v. Appleton, 76 S.W.3d 78, 86 (Tex. App.-Houston [14th Dist.] 2002, no pet.). In determining whether to award sanctions, the trial court must examine the facts and circumstances in existence at the time the pleading was filed to determine whether sanctions are proper. Id. Bad faith does not exist when a party merely exercises bad judgment or is negligent — rather bad faith is the conscious doing of a wrong for dishonest, discriminatory, or malicious purposes. Elkins, 103 S.W.3d at 669. To "harass" means to annoy, alarm, and verbally abuse another person. Elkins, 103 S.W.3d at 669.
After reviewing the record, we conclude Father did not conclusively establish Beason filed the suit in bad faith or for purposes of harassment. Even if the trial court could have inferred bad faith or intent to harass from the lack of legal basis for the suit, it was not required to do so. Cf. Drew v. Harrison County Hosp. Ass'n, 20 S.W.3d 244, 249 (Tex. App.-Texarkana 2000, no pet.) (intent not ordinarily subject to absolute verification). We conclude Father has not shown the trial court abused its discretion in denying his motion for sanction. We resolve Father's sole issue against him.
In a cross-point of error, K.N.R. asserts the trial court abused its discretion in denying her motion for enforcement of underpaid child support. The only authorities K.N.R. cites that allows a trial court to retroactively increase child support do not apply in this case. See Tex. Fam. Code Ann. § 154.009 (Vernon 2002) (retroactive support if no previous support order or previous support order terminated due to marriage or remarriage of parents); Tex. Fam. Code Ann. § 154.131 (Vernon 2002) (retroactive support in paternity case). The trial court did not abuse its discretion in denying K.N.R.'s motion. See Peterson v. A.G., 990 S.W.2d 830, 832-33 (Tex. App.-Fort Worth 1999, no pet.). We resolve K.N.R.'s sole issue against her.
We affirm the trial court's order.