Summary
concluding that the trial court's failure was harmless due to the findings in the record and recitals in the judgment
Summary of this case from Porter v. DenasOpinion
No. 04-04-00771-CV
Delivered and Filed: May 3, 2006.
Appeal from the 365th Judicial District Court, Maverick County, Texas, Trial Court No. 02-02-18079-CV, Honorable Amado Abascal, III, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Yolanda Marquez appeals the trial court's order modifying the amount of child support and spousal maintenance ordered to be paid by Rolando Marquez. Yolanda presents six issues asserting that the trial court: (1) erred in denying her motion for directed verdict; (2) abused its discretion in ordering the downward modification of support and maintenance; and (3) erred in failing to file findings of fact and conclusions of law. We affirm the trial court's order.
Directed Verdict
Yolanda's first three issues relate to the trial court's denial of her motion for a directed verdict. Texas law is well settled that a defendant who moves for a directed verdict after the plaintiff rests, but thereafter elects not to stand on her motion for instructed verdict, and proceeds with her own case, waives her motion for directed verdict unless the motion is reurged at the close of her case. Ratsavong v. Menevilay, 176 S.W.3d 661, 667 (Tex.App.-El Paso 2005, no pet.); 1986 Dodge 150 Pickup v. State, 129 S.W.3d 180, 183 (Tex.App.-Texarkana 2004, no pet.); Ybarra v. Texas Dept. of Protective and Regulatory Servs., No. 04-98-00658-CV, 1999 WL 623693, at *2 (Tex.App.-San Antonio Aug. 18, 1999, no pet.). In this case Yolanda moved for a directed verdict after Rolando rested. After the trial court denied the motion, Yolanda's attorney called Yolanda to testify. At the conclusion of the evidence, Yolanda did not reurge her motion for a directed verdict. Accordingly, Yolanda waived any complaint relating to her motion for directed verdict. Yolanda's first three issues are overruled.
Modification of Support
The trial court's order modifying Yolanda's child support and spousal maintenance is reviewed under an abuse of discretion standard. In re Marriage of Lendman, 170 S.W.3d 894, 899 (Tex.App.-Texarkana 2005, no pet.); Tyler v. Talburt, No. 04-02-00245-CV, 2003 WL 1964186, at *1 (Tex.App.-San Antonio, Apr. 30, 2003, no pet.). The factual and legal sufficiency of the evidence are part of the abuse of discretion review and are not independent grounds for reversal. In re Marriage of Lendman, 170 S.W.3d at 899; Tyler, 2003 WL 1964186, at *1; In re G.J.S., 940 S.W.2d 289, *293 (Tex.App.-San Antonio 1997, no pet.). The test for abuse of discretion is whether the court acted arbitrarily or unreasonably, that is, without reference to guiding rules and principles. In re S.B.C., 952 S.W.2d 15, 17 (Tex.App.-San Antonio 1997, no pet.). In making this determination, we must view the evidence in the light most favorable to the trial court's actions and indulge in every legal presumption in favor of the judgment. Id. at 17-18. If there is some probative and substantive evidence to support the judgment, the trial court did not abuse its discretion. Id. at 18.
A trial court may modify the amount of child support or spousal maintenance a person is required to pay if the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order's rendition. Tex. Fam. Code Ann. §§ 8.057 156.401 (Vernon Supp. 2005). The trial court must compare the financial circumstances of the parties at the time of the existing support order with their circumstances at the time the modification is sought. In re Marriage of Lendman, 170 S.W.3d at 899; In re S.B.C., 952 S.W.2d at 17. The best interest of the child is the salient consideration in child support matters. In re S.B.C., 952 S.W.2d at 17.
At the time of the divorce in February of 2003, Yolanda and Rolando had two children. Each was given the right to determine the primary residence of one of the children. Rolando was ordered to pay Yolanda $366.00 per month in child support and $442.00 per month in spousal maintenance. Yolanda was ordered to pay Rolando $160.00 per month in child support. The trial court found the amount of net resources available to Rolando was $1,831.00 per month. The trial court applied a twenty percent guideline in determining the amount of child support to order.
In May of 2004, Rolando filed a motion to modify the support and maintenance, and a hearing was held on June 30, 2004. The evidence presented revealed that Rolando lost his job in 2003 because the work at the ranch where he was employed had slowed. Rolando was being paid $1,400.00 per month while employed at the ranch. After searching for a job, Rolando became employed as a masonry assistant the beginning of 2004, but he was fired from that job after a few weeks because he was arrested for failure to pay his child support.
In August of 2003, Rolando sold an apartment complex that was determined to be his separate property during the divorce proceedings. Although Rolando received $110,000.00 from the sale, he gave the money to his nineteen-year-old daughter so that she could attend college in an effort to give her a better life and to enable her to assist the family in the future. Prior to the sale, Rolando received a net income from the rental of the apartments of approximately $600.00-800.00 each month.
During closing argument, Rolando's attorney initially noted that the trial court had erroneously used a 20% guideline in initially determining support when the applicable guideline was 17.5% based on the need to support two children. Rolando's attorney further argued that Rolando's average monthly income from 2003 was $700.00. If the trial court deemed the income that would have been made on the apartment rental if Rolando had not sold the apartments, Rolando's gross monthly income would be $1,500.00, and his net resources would be $1,282.75. Applying the applicable 17.5% support guideline, Rolando's attorney argued that the child support Rolando was required to pay should be reduced to $224.48.
The evidence supports the trial court's written finding in its order that a material and substantial change in circumstances had occurred. The evidence further supports the trial court's written finding in its order that Rolando voluntarily transferred income producing assets which are considered deemed income with monthly gross resource value of $810.00. At the conclusion of the hearing, the court stated that it was reducing the child support to $225.00 per month, with an offset of $140.00 per month for the support that Yolanda was required to pay Rolando. From the evidence and argument presented, the trial court based the modification on the application of the 17.5% guideline to the sum of Rolando's deemed income plus his average monthly income for 2003. In reaching its decision, the trial court was required to consider the best interests of both the child residing with Yolanda and the child residing with Rolando. The trial court took into consideration Rolando's sale of the apartments by including deemed income in its calculation. See Tex. Fam. Code Ann. § 154.067 (Vernon 2002) (allowing court to "assign a reasonable amount of deemed income to income-producing assets that a party has voluntarily transferred"). Because there is substantive and probative evidence to support the child support modification, the trial court did not abuse its discretion.
The trial court reduced the amount of support Yolanda was required to pay to consistently apply the 17.5% guideline.
With regard to spousal maintenance, the amount of maintenance may not exceed twenty percent of the spouse's average monthly gross income. Tex. Fam. Code Ann. §§ 8.055 (Vernon Supp. 2005). Based on the evidence presented, the trial court found that Rolando's average monthly gross income from the testimony presented was $810 per month or the amount of deemed income from the voluntary transfer of the apartments. Furthermore, the trial court properly followed the guiding rules and principles in reducing the spousal maintenance to twenty percent of $810 or $162.00. Accordingly, the trial court did not abuse its discretion in modifying the amount of spousal maintenance Rolando was required to pay.
Yolanda's fourth and fifth issues are overruled.
Findings of Fact and Conclusions of Law
In her final issue, Yolanda complains that the trial court erred in failing to file findings of fact and conclusions of law. A failure to file findings of fact and conclusions of law constitutes harm only when the circumstances of the particular case would require an appellant to guess the reason or reasons that the trial judge ruled against it. Brazoria County v. Texas Comm'n on Environmental Quality, 128 S.W.3d 728, 744 n. 10 (Tex.App.-Austin 2004, no pet.); Larry F. Smith, Inc. v. The Weber Co., 110 S.W.3d 611, 614 (Tex.App.-Dallas 2003, pet. denied). In this case, the trial court made verbal findings on the record in addition to the written findings included in the trial court's modification order. The circumstances did not require Yolanda to guess the reason or reasons that the trial judge ruled against her. Accordingly, Yolanda cannot demonstrate harm, and her final issue is overruled.
Conclusion
The judgment of the trial court is affirmed.