Opinion
02-20-00370-CV
05-26-2022
Thomas Edward Smith, Appellant v. Charissa G. Smith, Appellee
On Appeal from the 462nd District Court Denton County, Texas Trial Court No. 18-5580-158
Before Birdwell, Bassel, and Wallach, JJ.
MEMORANDUM OPINION
MIKE WALLACH, JUSTICE
The trial court's divorce decree divided the community estate of Appellant Thomas Edward Smith (Husband) and Appellee Charissa G. Smith (Wife) and awarded Wife spousal maintenance and child support. In four issues, Husband challenges Wife's entitlement to spousal maintenance and the amount awarded (issues one and two), the amount of child support awarded (issue three), and the community property division (issue four). Because we hold that the trial court did not abuse its discretion in rendering the challenged parts of the decree, we affirm.
Background
Wife and Husband were married in 2005. They had four children during the marriage. In 2018, Wife sued Husband for divorce. Alleging that Husband had a history of committing family violence, Wife requested that she be made sole managing conservator, that Husband be ordered to pay child support and spousal maintenance, and that she be awarded a disproportionate share of the estate. Husband filed a counterpetition in which he asked to be named the parent with the exclusive right to designate the children's primary residence. Both parents requested a psychological evaluation of the other parent.
Wife's petition was originally filed in the 158th District Court of Denton County. After rendering temporary orders, the judge of that court transferred the case to the 462nd District Court.
The trial court rendered temporary orders awarding Wife spousal support and child support and ordering psychological testing of both parents and a custody evaluation. Wife filed a motion to enforce the temporary orders, which the trial court set for hearing on the trial date.
The case was tried to the bench on August 14, 2019. A little more than a year later, the trial court signed its divorce decree. Between the trial and the decree's signing, the court held several hearings. First, fifteen days after trial, the court held a hearing to announce its ruling on some of the contested matters. The court first stated that it had some questions "on what [the parties] submitted"; the court then held an off-the-record conference in chambers. When the trial court went back on the record, it stated that based on the chambers conference, it was putting "an agreement . . . [o]r orders, maybe" on the record:
Okay. So for purposes of the record, both-the attorneys for both parties and myself had a conference with some questions I had regarding valuations where I saw different valuations. So as to the property, I'm going to rescind that ruling. What is-what everybody has is the same, it's pretty much going to be, but I need to refigure some numbers. So with that understanding, I'm going to make the rest of the ruling and then we will email that-or I will email that via my court coordinator to them.
As we note below in addressing Husband's fourth issue, despite this statement by the trial court, the record contains no indication that the trial court had previously ruled on the property division.
The trial court then stated that it was granting the divorce "effective today, with the order to be submitted at a later time once the [c]ourt finishes the property allocation, on the grounds of insupportability." The court then orally pronounced its ruling on most issues but left the property division for later. Then, on December 23, 2019, the trial court held a hearing on Husband's motions regarding substitution of counsel; the trial court allowed Husband's trial attorney to withdraw and granted Husband a continuance for his new attorney to familiarize himself with the case. On December 31, 2019, the trial court emailed the parties its proposed property division. Wife submitted a proposed decree, and on April 21, 2020, the trial court held a hearing on Husband's objections to the proposed decree. On June 8, 2020, Wife moved to have the court sign a decree. She filed an amended motion on August 10, 2020. The court finally signed a decree on August 28, 2020.
The decree made Wife and Husband joint managing conservators, with Wife named as primary conservator. Husband was ordered to pay $2,935.24 in monthly child support and to pay $2,000 in monthly spousal support for twelve months. At Husband's request, the court filed findings of fact and conclusions of law.
Husband filed a motion to modify, correct, or reform the judgment and a motion for new trial. After a hearing, the trial court denied the relief requested in both motions. In the order denying the motions, the trial court reconsidered its child support determination, found that child support should be $2,992.50 per month, and ordered that the judgment be reformed to reflect that amount.
The order states that Husband's "Motion to Modify, Correct, or Reform Judgment" was granted in part. However, the only modification made by the order was to correct which child support guidance applied-the court had incorrectly used the regulation that became effective on September 1, 2019, rather than the one in effect at the time of trial and the decree-and to increase the monthly child support obligation. Compare 44 Tex. Reg. 4199 (providing tax charts and maximum net resources for calculating child support beginning 9/1/2019), with 38 Tex. Reg. 5553 (Aug. 23, 2013) (providing tax charts and maximum net resources for calculating child support beginning 9/1/2013).
Standard of Review
We review a trial court's spousal maintenance, a child support award, and a division of the marital estate under an abuse of discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (child support); Evans v. Evans, No. 02-19-00132-CV, 2020 WL 1808294, at *4 (Tex. App.-Fort Worth Apr. 9, 2020, no pet.) (mem. op.) (spousal maintenance); Neyland v. Raymond, 324 S.W.3d 646, 649 (Tex. App.-Fort Worth 2010, no pet.) (property division). A trial court abuses its discretion if it acts without reference to any guiding rules or principles-in other words, if it acts arbitrarily or unreasonably. Boyd v. Boyd, 131 S.W.3d 605, 610 (Tex. App.-Fort Worth 2004, no pet.). Under the abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds for asserting error, but they are relevant factors in assessing whether the trial court abused its discretion. Evans, 2020 WL 1808294, at *4.
Discussion
Husband's first two issues on appeal relate to the trial court's spousal maintenance award; the first issue argues that the trial court should not have awarded maintenance, and the second challenges the award's amount. His third issue contests the amount of child support awarded. His fourth issue challenges the trial court's community property division.
We begin with the fourth issue because the trial court's property division is a factor we consider in reviewing the trial court's spousal maintenance award. See Kelly v. Kelly, 634 S.W.3d 335, 368 (Tex. App.-Houston [1st Dist.] 2021, no pet.). Husband's fourth issue includes three primary arguments:
(1) that the trial court did not have enough evidence to divide the marital property,
(2) that some assets and liabilities were not divided despite trial evidence of their existence, and
(3) that the decree did not divide a tax liability that was incurred during the marriage but discovered after the decree's rendition.
I. Community property division
"Trial courts have wide latitude and discretion in dividing community property." Coleman v. Coleman, No. 09-06-171CV, 2007 WL 1793756, at *2 (Tex. App.-Beaumont June 21, 2007, pet. denied) (mem. op.) (quoting Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998)). A trial court must divide the community estate in a "just and right" manner, but the division need not be equal. Hamilton v. Hamilton, No. 02-19-00211-CV, 2020 WL 6498528, at *5 (Tex. App.-Fort Worth Nov. 5, 2020, no pet.) (mem. op.); Logsdon v. Logsdon, No. 02-14-00045-CV, 2015 WL 7690034, at *9 (Tex. App.-Fort Worth Nov. 25, 2015, no pet.) (citing Tex. Fam. Code Ann. § 7.001). In making its division, the trial court may consider many factors, including
• each spouse's earning capacity and financial condition;
• the spouses' respective abilities, education, and business opportunities;
• the size of their separate estates and any future needs for support;
• their physical health and age;
• the award of child custody;
• the length of the marriage and any fault in its breakup;
• attorney's fees;
• a spouse's dissipation of the estate; and
• any tax consequences.Coleman, 2007 WL 1793756, at *2; see also Hamilton, 2020 WL 6498528, at *5.
A. Husband's first argument: insufficient evidence to support the division
We begin with Husband's argument that the trial court had insufficient evidence on which to base its property division. He makes two sub-arguments in this part of his brief: (1) the award to Husband was less than even what Wife had requested; and (2) the trial court did not have enough evidence to resolve discrepancies between the values that Wife provided for the couple's property and the values that Husband provided for the same property. We reject both assertions.
Husband also argues that insufficient evidence supports the division because after the trial court rescinded its first ruling, no additional evidence was provided to support the change to the property division in the second ruling. Wife's brief states that she is unaware of any revocation by the trial court of a property division ruling. In his reply brief, Husband points this court to the trial court's statement at the August 2019 post-trial hearing that it was rescinding its prior ruling on the property division. However, this court has seen nothing in the record to show that the trial court had previously rendered a property division. Husband does not direct us to any place in the record showing a previous property division ruling by the trial court. We thus overrule this part of Husband's fourth issue.
At trial, each party introduced as an exhibit a spreadsheet that they relied on to support their requested property division; Husband and Wife both provided the same list of assets and debts. They agreed on the value for most of the items. As Husband points out, "Wife's property division had different values listed for the house proceeds, the First Command [bank account], and the Citi [credit card account] than the values listed in Husband's property division." Husband argues that the trial court should have given the parties an opportunity after trial to produce more evidence to resolve these conflicts. At no point, however, did Husband move to reopen evidence. See Tex. R. Civ. P. 270; Hernandez v. Lautensack, 201 S.W.3d 771, 779 (Tex. App.-Fort Worth 2006, pet. denied); see also Musick v. Musick, 590 S.W.2d 582, 584-85 (Tex. App.-Tyler 1979, no writ) (holding that trial court abused its discretion by refusing to permit the divorce case's re-opening to allow wife to present evidence of facts that developed after trial but before judgment and that would directly affect the property division).
The parties' spreadsheets also conflicted on two other valuations: one for a First Command credit card and one for "[Husband] debt paid from trust account for SS November and December 2018, January, February[,] and March 2019." Wife pointed out in her brief that these differences were due to Husband's counsel showing the credit card balance being paid using the house proceeds in Wife's attorney's trust account. Wife asserts that the parties told the trial court about this discrepancy and its basis. In his reply brief, Husband "disputes that these conversations occurred. Appellant Husband disputes that conversations occurred regarding an IOLTA account, a First Command credit card balance, or an agreement." However, in Husband's trial attorney's questioning of Husband at trial, the attorney noted that on his spreadsheet exhibit, he had "zeroed out on accident" the amount still owed on the First Command credit card. Then, later in Husband's testimony, the parties' attorneys had the following conversation with the trial court in discussing the parties' spreadsheet exhibits:
[Wife's attorney]: For clarification purposes, Judge, [on Husband's spreadsheet], the Visa Bank Command-First [Command] Bank Visa credit card, is zero because they reduced the proceeds of my trust account by that amount.
[Husband's attorney]: That was our proposal to take it out of there. That is accurate. So the spreadsheet total should still be accurate.
[Wife's attorney]: Yeah.
THE COURT: Okay.
[Wife's attorney]: Just so you're not confused, the proceeds in my trust account are the ones reflected on my spreadsheet, and my spreadsheet is an attachment to our request for relief.
THE COURT: Okay.
[Wife's attorney]: That's the first difference.
THE COURT: That's one where you noticed it already, didn't you, [Husband's attorney]?
[Husband's attorney]: I'm sorry?
THE COURT: Didn't you already notice that earlier?
[Husband's attorney]: Yes. I thought I had left it out, but he's right, I took it out of the proceeds.
In the same paragraph, Husband also asserts vaguely that the spreadsheets "did not contain a full listing of the community estate." We address elsewhere Husband's more specific contentions about property that was not included in the parties' spreadsheets.
In his trial testimony, Husband asked the trial court to split the couple's property in accordance with his spreadsheet exhibit, and Wife asked for the trial court to split the property in accordance with her spreadsheet exhibit. In dividing the property, the trial court used Wife's valuation for the house proceeds and the Citi credit card and used Husband's valuation for the First Command bank account. The trial court thus had evidence from both parties about the value of their assets and liabilities, and the court was free to resolve the conflict between their evidence. See In re Marriage of Nadar, No. 05-17-00537-CV, 2018 WL 1373900, at *6 (Tex. App.- Dallas Mar. 19, 2018, pet. denied) (mem. op.); Hrncirik v. Hrncirik, No. 07-15-00001-CV, 2016 WL 4548625, at *3 (Tex. App.-Amarillo Aug. 30, 2016, no pet.) (mem. op.).
As for Husband's argument that it was an abuse of discretion for the trial court to award Wife more than she had requested, he cites no authority for the proposition that the trial court was required to adopt either party's proposed property division. Husband argues in his reply brief that a trial court can only "award a property division between what the parties requested." However, the case he cites discusses a trial court's discretion to find a property's value between competing figures put forth by the parties. See Grossnickle v. Grossnickle, 935 S.W.2d 830, 844 (Tex. App.-Texarkana 1996, writ denied) (stating that because the trial court had conflicting valuation evidence, it was not an abuse of discretion for the court to reach a figure between the values offered by the parties). In other words, the values that the trial court assigns to property must have some support in the evidence. That case does not stand for the proposition that a trial court's property division is only "just and right" if it adopts the property division proposed by one of the parties.
Here, we see no abuse of discretion in the way that the trial court divided the property on the party's spreadsheets. The parties' spreadsheets were in general agreement on who would get which items, whatever their value. For the First Command bank account that was awarded to Husband at both parties' request, Wife's spreadsheet stated that the account had about $4,000 more than the trial court found that it had. The trial court used the lower value provided by Husband in its calculation. The trial court split the proceeds from the sale of the marital residence. The trial court divided the parties' remaining assets nearly equally. As for dividing the parties' liabilities, the only difference between what Wife suggested that Husband receive and what the trial court awarded was $3,619.81 in attorney's fees that Wife incurred in seeking enforcement of temporary orders. Wife's spreadsheet did not include those fees, but her attorney requested them at trial and provided evidence to support them, and the decree ordered Husband to pay those fees from his share of the house sale proceeds. Husband does not challenge that award on appeal.
They disagreed on who should get more of the proceeds from the sale of the marital residence.
Husband had been ordered to pay spousal support during the suit's pendency, and he had failed to pay $10,000 of that support. The trial court's property division ordered that past-due amount paid from house proceeds, which were being held in Wife's attorney's IOLTA account. The trial court had rendered an additional temporary order providing that $5,000 in attorney's fees be paid to Wife's attorney from the house proceeds "so that the attorney's fees paid from the community are equalized at $10,000.00."
Because the trial court had sufficient evidence on which to base its division of the property claimed by the parties at trial, and because Husband has failed to persuade us that the trial court's division of that property was not just and right, we overrule this part of Husband's fourth issue.
B. Husband's second argument: the trial court failed to divide some assets and liabilities
Husband further argues under his fourth issue that "multiple assets and liabilities were not included in the division": $20,000 in retirement funds that Husband contends were his separate property, personal property from the marital residence that was put in a storage unit, and the monthly payments Husband had made for the storage unit.
Husband originally argued that the decree also did not divide the debt on Husband's vehicle, but he conceded in his reply brief that the decree did divide that debt.
1. The retirement funds
Husband argues that he brought into the marriage as his separate property $20,000 in retirement funds from his military service and that "[t]hese retirement funds were never addressed or divided by the trial court." We disagree.
Any property possessed by either spouse during or on dissolution of their marriage is presumed to be community property. Tex. Fam. Code Ann. § 3.003. To overcome this presumption, a spouse "must trace and clearly identify the property in question as separate by clear and convincing evidence." Pearson v. Fillingim, 332 S.W.3d 361, 363 (Tex. 2011); see also Tex. Fam. Code Ann. § 3.003. Husband and Wife each listed on their respective spreadsheet five Vanguard accounts, with some categorized as "stocks, brokerage[,] and mutual fund accounts," and some described as "IRAs and company retirement accounts/plans." Neither mentioned military benefits. Husband's trial testimony about the retirement accounts also failed to mention any military benefits. To the contrary, Husband had this exchange with his attorney:
Q. Okay. Are you asking the Court to adopt this proposed property division, that being, you know, basically about half of your Vanguard IRAs are split and given to wife along with hers and the joint Roth IRA to balance those out-to equalize those, correct?
A. Are you referring to what [Wife's attorney] gave us?
Q. Yes. And that we modified at mediation.
A. Yes.
Q. Besides the-okay. So each of y'all have a Roth rollover and a Roth-and a regular Roth Vanguard account?
A. Correct.
Q. And then there's a joint one that has both of those, as well, correct? So there's six total: two for her, two for you, and two for the joint, correct?
A. I think it's just one for the joint.
Q. Okay. But either way you're asking those to be equalized, that the proceeds of the-basically, after that, it's your bank account, the business bank account, her bank account, and your two vehicles, correct?
A. Correct . . . .
Because Husband failed to mention at trial-much less produce any evidence-that he had separate property retirement benefits, he failed to overcome the community-property presumption with respect to those funds. See Pearson, 332 S.W.3d at 364. Thus, if these funds existed, the trial court properly divided them as community assets when it divided the Vanguard accounts.
Further, the trial court did not abuse its discretion by failing to grant a new trial based on these funds. To be entitled to a new trial on the ground of newly-discovered evidence, Husband had to show that (1) the evidence came to light after trial, (2) it was not owing to his want of due diligence that the evidence did not come to light sooner, (3) the new evidence was not cumulative, and (4) the evidence was so material that it would likely produce a different result if a new trial were granted. See Neyland, 324 S.W.3d at 652. "The due diligence requirement has not been met if the same diligence used to obtain the evidence after trial would have had the same result if exercised before trial." Id. Husband's only explanation for why the military benefits were not brought up at trial was a statement he made at the post-judgment motions hearing that he had told his previous attorney about the funds but that attorney "never acted upon it." However, at trial, when asked about the Vanguard accounts, Husband clearly testified that he was asking the trial court to divide the accounts, including the account into which he allegedly transferred the funds. At no point did he mention the military retirement funds in his testimony or ask the trial court to allow him to keep his military retirement benefits. Further, at no point after Husband obtained new counsel (in December 2019) but before the trial court rendered judgment (in August 2020) did Husband ask the court to reopen evidence so that he could provide evidence of the funds' existence or status as separate property.
Additionally, the only evidence that Husband produced with respect to identifying and tracing these funds was his testimony at the hearing on his post-judgment motions that he had $20,000 "earned from the Navy" that he had "brought previously into the marriage," that the funds "had been moved to [the couple's] Vanguard accounts" during the marriage, and that those funds were "never discussed" at trial. This sort of testimony is insufficient to prove up separate property. See Weltch v. Estate of Weltch, No. 14-20-00113-CV, 2021 WL 6141184, at *5 (Tex. App.- Houston [14th Dist.] Dec. 30, 2021, no pet.) (mem. op.); Boyd, 131 S.W.3d at 612. Husband did not even identify into which Vanguard account the funds had been moved. Without any tracing evidence before it, the trial court had no basis on which it could find that a new trial would produce a different result in the property division.
For these reasons, Husband was not entitled to a new trial on the marital property division on the basis that the trial court failed to divide or erroneously divided his military retirement benefits. We overrule this part of Husband's fourth issue.
2. The property in the storage unit and the storage unit payments
Husband argues that the trial court failed to divide the parties' remaining personal property, which had been stored in a rented storage unit, and failed to include in its division the monthly payments that Husband had made to rent the unit.
Regarding the property in storage, Husband testified at trial that Wife had told him that she did not want any of the couple's belongings that were in the storage unit. The decree reflected Wife's relinquishment of their household goods. It stated that Husband was awarded "[a]ll household furniture, furnishings, fixtures, goods, art objects, collectibles, appliances, and equipment in the possession of Husband or subject to his sole control; save and except the personal property awarded to Wife herein above." Wife was awarded the household furniture, furnishings, and so on that were in her possession and "any personal belongings at any storage facilities and her personal property and/or records in [Husband's] possession." [Emphasis added.] The decree further ordered Husband to give Wife a chance to retrieve any "personal belongings" that were in the storage unit. In other words, Husband was awarded everything in the storage unit except Wife's "personal belongings." Thus, the decree did divide the couple's marital property in the storage unit.
As for the funds used to rent the storage unit, Husband testified that he paid for the storage unit using his debit card for a bank account. Because the storage unit was paid for by a debit card rather than a credit card, there was no evidence of unpaid debt for the storage unit that needed to be divided. Further the trial evidence showed that the bank account used to pay for the unit was community property, and because Husband was awarded the account in the decree, the account that had been used to pay for the unit was considered and divided by the trial court along with the couple's other bank accounts. To the extent that Husband argues that he should have been awarded more of the marital assets to compensate for the storage fees being paid from the account that he was awarded, given that he was awarded the marital property stored in the unit, we cannot say that the trial court abused its discretion in its decision. We overrule this part of Husband's fourth issue.
C. Husband's third argument: new evidence shows the trial court used inaccurate property values in dividing the marital property
Finally, Husband argues that his federal tax return for the 2019 tax year is "new evidence not available at the time of trial . . . [that] show[ed] that the property values in the property division are not accurate, which should require a new trial to appropriately value and divide the assets." He asserts that because this tax liability was not accounted for in the property division, the marital estate was not properly valued or divided.
The trial court was permitted to consider the parties' future tax liability in dividing their marital estate. See Tex. Fam. Code Ann. § 7.008. However, the court had no information about either party's 2019 tax liability when it rendered its judgment. Each party's proposed property division stated "partition" for the 2019 tax year, which suggests that the parties wanted to partition their income for purposes of filing their tax returns. However, their spreadsheets gave no estimate for those taxes and no indication of how either wanted to divide any tax liability incurred in 2019 for purposes of dividing their estate. Wife's attorney put tax liability allocation language in her proposed decree, but the trial court decided to omit that language from its decree after Husband's attorney objected that there was no evidence to support it.
Husband filed his return in September 2020, almost a month after the trial court signed the decree. Husband gave no explanation in the trial court and includes no explanation on appeal for why he could not have filed his taxes sooner-before the decree's rendition-so that he could ask the trial court to reopen evidence to include the tax return. See Tex. R. Civ. P. 270; Musick, 590 S.W.2d at 584-85. Because Husband gave no explanation for why he could not have filed his tax return in the nearly eight months of 2020 before the trial court rendered judgment, Husband did not meet the due-diligence requirement. See Neyland, 324 S.W.3d at 652. Thus, Husband did not show that the tax return showing his 2019 tax liability was newly-discovered evidence for purposes of granting a new trial. And because Husband had put forth no evidence before the decree's rendition that he had 2019 tax liability or of what that liability was, the trial court did not abuse its discretion by not including those taxes in its property division. We overrule the remainder of Husband's fourth issue.
II. The trial court's decision to award spousal maintenance
Husband's first issue argues that spousal maintenance was not appropriate "given that Wife received a substantial amount of assets in the property division, Wife had a substantial background of education, and Wife had an employment history indicating she could provide for her minimum reasonable needs."
A. Applicable law
In a divorce proceeding, the court may order one spouse to pay maintenance to the other spouse, but only under the circumstances outlined in Family Code Section 8.051. Tex. Fam. Code Ann. § 8.051. Here, the trial court could award spousal maintenance only if the court
• found that Wife and Husband had been married for at least ten years;
• found that after the divorce, Wife would lack sufficient property to provide for her minimum reasonable needs and that she is unable to earn sufficient income to meet her reasonable needs; and
• had before it sufficient evidence to overcome a rebuttable statutory presumption that maintenance was not warranted unless Wife had exercised diligence in "(1) earning sufficient income to provide for [her] minimum reasonable needs; or (2) developing the necessary skills to provide for [her] minimum reasonable needs during a period of separation and during the time the suit for dissolution of the marriage [was] pending."See id. §§ 8.051(2)(B), 8.053(a).
B. Trial testimony and the trial court's determinations
Wife testified that she graduated from Houston Baptist with a Bachelor of Arts in Speech Communications and Christianity in 2003 and earned a Master of Arts in Biblical Studies from Dallas Theological Seminary in 2007. She stated that she stopped working in 2008 to be a stay-at-home parent and that she and Husband made that decision together. She then testified about her past employment history.
Q. Have you been employed outside the home since you graduated from college?
A. Yes.
Q. Okay. What type of work did you do-strike that.
What was your last-are you currently working outside the home?
A. No.
Q. When is the last time that you worked outside the home?
A. I worked at the Meadows Foundation in Dallas as a secretary in 2008.
Q. And-as a secretary?
A. Yes, or administrative assistant.
Q. Okay. What types of duties did you do?
A. I did filing, answered the phone, went around to tenants, assisted my boss, who was a property manager.
Q. Okay. And how much were you paid per hour or were you paid a salary?
A. I was paid a salary of $30,000 a year.
Q. Okay. How long did you work there?
A. About a year and a half.
Q. Okay. Ending in 2008?
A. Yes, after the birth of our child.
Q. After the birth of [B.]?
A. Yeah.
Q. And prior to-between graduation and the Meadows Foundation, what other type of work had you performed?
A. I was also an administrative assistant at the Mary Crowley Medical Research Center, at church for a short time, a chiropractor office, and a nanny. I worked as a nanny for the Rodriguez family in Dallas for a while.
Q. Did you ever earn more than $30,000 in a given year?
A. I think I got 31 at Mary Crowley.
. . . .
Q. Okay. Did you help [Husband] with the business-
A. Yes.
Q. -[Husband]'s Tutoring and Test Prep?
A. Yes.
Q. What did you do?
A. I was our office manager, slash, secretary, slash, I did the invoices and the billing and the QuickBooks and managed the finances side, taxes, and so forth.
Q. Okay. When did you stop working for [Husband]'s business?
A. June 24th.
Q. In 2018?
A. 2018.
Q. Okay. Did [Husband] pay you compensation for this work independent of the money you deposited into the joint account?
A. No.
. . . .
Q. [by Husband's attorney:]. Okay. Now, going to your exhibit on your monthly expenses, you-when was the last time you applied to a job?
A. Like, a real job, job?
Q. Yes, ma'am. Not trying to say stay-at-home mom is not-I'm saying a job.
A. 2007-I mean, let me rephrase that. Last year after the August thing I had an interview with a lady. I was offered the job. I did not take it because the hours-
Q. Okay.
A. -didn't fit with the child care schedule.
Wife further testified that she was looking for work, that she had applied for a job at the children's school but had not yet heard back about her application, and that she would continue to look for a job "taking into account what it would cost for child care, et cetera."
Wife also introduced an exhibit of her monthly income and expenses and testified that she has not had enough money to pay them. Husband's attorney questioned her about one of those expenses on cross-examination-the cost to pay for monthly house cleaning.
We discuss that expense below.
In the divorce decree, the trial court made findings related to its spousal maintenance award. It found that Wife "will lack sufficient property, including [her] separate property, on the dissolution of the marriage to provide for [her] minimum reasonable needs." It further found that Wife "has been married to [Husband] for longer than 10 years and that she lacks the ability to earn sufficient income to provide for her minimum reasonable needs." In the trial court's findings of fact and conclusions of law, the trial court included the following relevant findings and conclusions related to Wife's earning capacity and needs:
3. [Wife] graduated from Duncanville high school in 1999 and attended Houston Baptist College. [Wife] graduated from college with a Bachelor of Arts in Speech Communications and Christianity in 2003.
4. [Wife] Graduated from Dallas Theological Seminary with a Master of Arts in Biblical Studies in 2007.
. . . .
8. [Wife] and [Husband] were married on December 28, 2005.
. . . .
15. Temporary Orders were heard by the Court on August 15, 2018 and the Court rendered its ruling the same day. After the court rendered, [Wife] moved to her mother's house located in Keller, Texas and the children were enrolled in school at [elementary school] in Keller, Texas.
. . . .
28. [Wife]'s net resources are zero.
. . . .
69. [Wife] lacks the ability to earn sufficient income to provide for her minimum reasonable needs.
70. [Wife] has been a stay[-]at[-]home mother since 2008 and the birth of their oldest son, [B.], including during the last twelve years.
71. [Wife]'s previous work experience has earned her an income of $30,000-$31,000 per year.
72. [Wife] has not been employed since 2008.
73. [Wife] has dedicated the last twelve years to raising the children and taking care of the home.
74. [Wife] has exercised diligence in earning income to provide for her minimum reasonable needs by applying for a job as an office aid at the school that her children attend.
. . . .
88. The Court has reviewed Chapter 8 of the Family Code regarding spousal support including sections 8.05l(2)(b), 8.054(a)(1)(a)(ii), 8.054(a)(2) and 8.055(a)(2).
89. The Court finds [Wife] will lack sufficient property, including the spouse's separate property, on the dissolution of the marriage to provide for the spouse's minimum reasonable needs.
90. The Court further finds she has been married to [Husband] for longer than 10 years . . . and she lacks the ability to earn sufficient income to provide for her minimum reasonable needs.
91. The Court further finds that an award of $2,000 per month for a period of twelve months is appropriate and bases this conclusion on the factors set forth in section 8.052(1), (2), (3), (4), (9), and (10).
. . . .
Conclusions of Law - Spousal Support
102. There is a rebuttable presumption against spousal support in Texas.
103. The presumption against spousal support may be rebutted by a finding that the spouse seeking maintenance lacks sufficient property, including the spouse's separate property, on dissolution of the marriage, to provide for the spouse's minimum reasonable needs, and has been married to the other spouse for ten years or longer, and lacks the ability to earn sufficient income to provide for the spouse's minimum reasonable needs.
104. [Wife] is entitled to spousal support under TEXAS FAMILY CODE Section 8.
105. [Husband] and [Wife] were married for twelve years.
106. [Wife] is unable to earn sufficient income to provide for her minimum reasonable needs.
107. [Wife]'s financial resources on dissolution of the marriage do not allow her to provide for her minimum reasonable needs.
108. [Wife] does not have a monthly income, income-producing property, valuable personal property, or sufficient property through the court's division of the marital estate.
109. [Wife] lacks the employment skills to earn sufficient income and has not been employed for over twelve years.
110. [Wife]'s employment history shows that she has not earned an income exceeding $31,000.00, and likely will not earn a higher salary in the future.
111. [Wife] has dedicated twelve years to acting as the homemaker in the marriage.
112. [Wife] has exercised diligence in earning income to provide for her minimum reasonable needs by applying for a job as an office aid at the school that her children attend.
113. [Wife] needs future support as she continues to look for employment while taking care of the children.
114. [Husband] has repeatedly exhibited displays of physical and verbal outrage and violence rising to the level of marital misconduct.
115. [Husband] should pay spousal support in the amount of $2,000 per month for a period of twelve months based on the factors set forth in section 8.052(1), (2), (3), (4), (9), and (10).
Husband challenges four of the trial court's findings: (1) that Wife would lack sufficient property after divorce to provide for her minimum reasonable needs, (2) that she lacked the ability to earn sufficient income to provide for her reasonable needs, (3) that she exercised diligence in earning income, and (4) that awarding $2,000 a month is appropriate. We first address his argument regarding Wife's lack of sufficient property after the marriage's dissolution.
C. Lack of sufficient property to meet reasonable needs 1. Reasonable needs
The Family Code does not define "minimum reasonable needs." Kelly, 634 S.W.3d at 368. Instead, "[d]etermining the 'minimum reasonable needs' for a particular individual is a fact-specific determination that should be made on a case-by-case basis." Id.
The trial court admitted as an exhibit a document listing Wife's estimated income and expenses. In that document, Wife listed $120 a month for "gross salary or wages" and $2,992.50 in proposed child support as her only income. The trial testimony did not address the source of the $120/month income, but the custody evaluator's report, which was admitted at trial, included a statement from Wife that she had recently started selling skincare products from her home. Wife stated that she had "not yet made any significant income" from that endeavor. Her estimated expenses totaled $4,443.17. Her estimate did not include repaying her mother for the money she borrowed to pay incurred attorney's fees, which we discuss more below. Even so, by her estimates she would have a monthly deficit of $1,330.67. She did not include in the total of her expenses any share of the annual property taxes and home insurance costs for the house, but she stated on her expenses list that she would have to pay half of those costs from that point forward. She provided the estimated cost of those combined expenses: $4,000 a year, or about $333 a month. Those two additional expenses would make her actual monthly deficit around $1660.
Wife lives with her mother and does not pay rent, but she does pay a share of the house cleaning and lawncare costs. Husband challenges the validity of those two expenses. As for the lawn care, there was no evidence that Wife or her mother own a lawn mower or other lawn maintenance equipment or know how to use it, and Husband produced no evidence that it would be cheaper for Wife to purchase lawncare equipment to maintain the lawn herself. Regarding the cleaning service, Wife testified that house cleaning service was for "deep cleaning once a month." The trial court did not abuse its discretion by determining that this charge and the lawncare expenses were expenses that Wife's mother could reasonably charge as Wife's share of household maintenance expenses. Further, Husband introduced no evidence that the amounts charged were unreasonable. See Benoit v. Benoit, No. 01-15-00023-CV, 2015 WL 9311401, at *9 (Tex. App.-Houston [1st Dist.] Dec. 22, 2015, no pet.) (mem. op.).
Wife pays part of other household expenses as well, such as water, electricity, and cable, but Husband does not challenge the validity of those expenses.
She further explained that the cleaning was for the house's bottom floor, where her mother lives, and that Wife does all the cleaning for the upstairs, where she and the children live, but the trial court sustained Husband's objection to this testimony as nonresponsive to his question.
2. Sufficient property
Regarding whether Wife had sufficient property to meet the needs she identified, Husband argues that Wife had "more than a sufficient amount of assets, especially liquid assets, to provide for her minimum reasonable needs." He argues that Wife was awarded "a net amount of assets to the tune of $114,292.05," which included proceeds from the sale of the marital residence, a $15,000 payment from Husband, a 2010 Toyota Sienna, a share of the Vanguard accounts, and $1,966.66 in savings. We disagree that the trial court abused its discretion by determining that Wife had insufficient property.
First, $4,438 of the value of the assets awarded to Wife was Wife's vehicle. Husband cites no authority for the proposition that Wife was required to sell her ten-year-old vehicle-her only transportation source-to show that she did not have sufficient property for her needs. Husband provided no evidence that Wife had other transportation available to her and does not explain how Wife would be able to find a sufficient job without transportation.
Second, $95,312.78 of the award to Wife was in retirement accounts. Although the parties did not testify about what kind of retirement accounts they had, the spreadsheet exhibits labeled some of the accounts as Roth IRAs and one as a SEP IRA. Any withdrawals from the SEP IRA would be subject to taxes and penalties. I.R.C. §§ 72(t), 408(d); Indiv. Ret. Plans Guide ¶ 2170 (2018), 2015 WL 7692138. An individual may withdraw contributions to a Roth IRA without paying taxes or penalties, but the individual must pay taxes and will incur penalties when withdrawing the account's earnings if the withdrawal does not satisfy certain conditions. I.R.C. § 408A; Individual retirement accounts (IRAs)-Roth IRAs, 1 Federal Taxation of Close Corporations § 3:54. The record does not reflect how much of these funds, if any, were accessible to Wife immediately or without consequence. See Gordon v. Gordon, No. 14-10-01031-CV, 2011 WL 5926723, at *4 (Tex. App.-Houston [14th Dist.] Nov. 29, 2011, no pet.) (noting that the record did not reflect that retirement assets the wife received "were accessible to [her] immediately or without substantial consequence"). Further, "[i]n considering assets awarded in the divorce, the law does not require a spouse to spend down long-term assets, liquidate all available assets, or incur new debt simply to obtain job skills and meet needs in the short term." Dunaway v. Dunaway, No. 14-06-01042-CV, 2007 WL 3342020, at *3 (Tex. App.-Houston [14th Dist.] Nov. 13, 2007, no pet.) (mem. op.). Here, given the likely limitations on Wife's future income-as noted by the trial court-if she liquidates these assets, it is unlikely that she would be able to replenish her savings and retirement funds in the future. With Wife's likely inability to save for retirement in the future and no evidence to show that she could access the retirement funds immediately and without consequence, the trial court did not abuse its discretion by not considering the retirement accounts in determining what property Wife had available to her to meet her needs.
We do not suggest that the trial court could award spousal support so that Wife can accrue savings for future needs. See, e.g., Day v. Day, 452 S.W.3d 430, 434 (Tex. App.-Houston [1st Dist.] 2014, pet. denied) (considering wife's current needs, not future needs, in evaluating need for spousal maintenance).
Third, regarding the $15,000.00 Husband was ordered to pay Wife in the property division, the decree specified that this amount was for attorney's fees and spousal support arrears. That is, $5,000 was not available to Wife for support because it was for attorney's fees she had already incurred. The remaining $10,000 was money that Husband had been ordered to pay in temporary orders but that he had not paid. This amount was money Wife needed during the suit's pendency but did not receive. Wife testified that since moving in with her mother, she had been unable to pay her mother the living expenses that she had promised to pay her. Further, the trial court had evidence that without spousal support payments from Husband, Wife runs a deficit each month. In other words, the trial court had evidence from which it could have found that the $10,000 was needed by Wife to pay past obligations that she had been unable to pay during the suit's pendency, rather than money she could use for her current support.
Even if we consider the $10,000, however, in addition to the house proceeds and bank account funds awarded to Wife, if she paid off her credit card debt-which would lower her monthly expenses-and repaid her mother the money she had borrowed for attorney's fees (discussed more below), she would deplete her remaining savings in less than a year. Accordingly, we cannot conclude that the trial court abused its discretion by determining that Wife had insufficient property to meet her reasonable needs.
For purposes of this calculation, we have not included the attorney's fees that Wife testified to having incurred but not yet paid, at least some of which presumably would be paid by amounts the trial court awarded her for attorney's fees in the decree.
D. Wife's ability to earn and diligence in securing income
Husband does not dispute that the parties were married more than ten years. See Tex. Fam. Code Ann. § 8.051(2)(B). He does, however, argue that Wife has the ability to earn sufficient income. He further contends that the evidence shows that Wife had not exercised diligence in earning sufficient income to provide for her needs.
First, Husband contends that "nothing in the record shows that Wife lacked the ability to earn sufficient income to provide for her minimum reasonable needs." He points out that she has a bachelor's degree as well as a master's degree in biblical studies and that she has previous work experience handling clerical and administrative tasks. Husband does not, however, challenge the trial court's findings that Wife had been a stay-at-home parent for over ten years and that the jobs she held before that never paid her more than $31,000 a year. He does not argue that the trial court had no factual basis from which to conclude that Wife likely will not earn a higher salary in the future. The trial court could have reasonably concluded from the evidence that Wife needed some time to find a job that could pay enough to meet her minimum reasonable needs. See Gordon, 2011 WL 5926723, at *5 (holding that wife's testimony that she had been out of the workforce for 20 years was evidence it would take time for her to gain training or education to develop skills for adequate employment).
Husband further argues that Wife had turned down a job offer and that "[t]he fact that she received a job offer shows that she was able to work by the time of trial, and that she would not need additional time to obtain the skills to find and secure employment." He thus argues that Wife did not show the diligence required to overcome the presumption in Section 8.053. However, the test for Section 8.053 is not whether a spouse is able to work or can find any job at all. Instead, to rebut the presumption, the evidence needs to show that the spouse exercised diligence in earning sufficient income to meet the spouse's minimum reasonable needs or in developing the skills necessary to do so. Tex. Fam. Code Ann. § 8.053. The only evidence about the job that Wife turned down was that its schedule was incompatible with her providing childcare and that it thus was not a job she could accept.
Husband argues that this evidence did not show that Wife had exercised diligence because "at the time of trial, the youngest child was in daycare Mondays, Wednesdays, and Fridays; and the other three children were in school." Even if Husband's factual assertions were correct, the youngest child was not in daycare full-time, and the schedule still left Wife needing a job that would allow her to leave in time to pick up the children after school during her periods of possession or a job that would pay enough to cover childcare. Husband asserts that Wife was living with her mother "who could watch over the children if need be; so no reason existed for Wife not to accept employment" that would prevent her from providing childcare during the day. Wife did testify that her mother was available to help with childcare, but she did not testify that her mother was willing to provide all the childcare that might be needed to accommodate Wife's work schedule and to do so until all of the children were old enough to no longer need after-school care. See Gordon, 2011 WL 5926723, at *5 (concluding that testimony that mother was primary caretaker for two minor children supported determination that she was limited in her ability to work full-time or to develop skills or education to find work).
Husband provides no record references establishing the specific days that the youngest child was in daycare or supporting his allegation that the child attended daycare at all. Wife testified at trial that the youngest was not in daycare at the time of trial and that she had been taking care of him at home during the case proceedings, but that she planned for him to attend preschool in the upcoming school year. Husband gave no testimony to the contrary. Other evidence suggests that the child had previously been in daycare. Husband told the licensed professional counselor who did the contested child custody evaluation that he had learned from the children that one of the children's aunts (presumably Wife's sister) had taken the youngest child to work with her because "she had a daycare [the child] could attend for free." The counselor testified at trial and stated that when she conducted her evaluation, the child was in daycare on a part-time basis. She did not, however, say on what days the child is in daycare, and there was no evidence that the aunt could continue to take the child to the daycare available at her workplace.
Finally, Husband argues that Wife never exercised diligence in earning sufficient income because there was no evidence regarding job searches aside from the single job she turned down. However, Wife testified that she had applied for a job with the children's school and was continuing to look for jobs, considering the cost of childcare. Further, the record includes evidence that Wife started selling skincare products out of her home, which is evidence that she was attempting to earn income while looking for a job.
We conclude that, based on the record, the trial court did not abuse its discretion by finding that Wife exercised diligence in earning sufficient income to provide for her minimum reasonable needs. See Tex. Fam. Code Ann. § 8.053(a). We overrule Husband's first issue.
III. The amount of spousal maintenance awarded
Husband's second issue challenges the amount of spousal maintenance awarded. He argues that "the trial court miscalculated the monthly amount of spousal maintenance given the limitations of the Texas Family Code, the facts presented by Wife as to her monthly expenses, and the facts presented by Husband as to his monthly income."
In determining "the nature, amount, duration, and manner" of spousal maintenance payments, a trial court considers a variety of factors, including those listed in Section 8.052. Tex. Fam. Code Ann. § 8.052. Those statutory factors are:
(1) each spouse's ability to provide for that spouse's minimum reasonable needs independently, considering that spouse's financial resources on dissolution of the marriage;
(2) the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to earn sufficient income, and the availability and feasibility of that education or training;
(3) the duration of the marriage;
(4) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
(5) the effect on each spouse's ability to provide for that spouse's minimum reasonable needs while providing periodic child support payments or maintenance, if applicable;
(6) acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
(7) the contribution by one spouse to the education, training, or increased earning power of the other spouse;
(8) the property brought to the marriage by either spouse;
(9) the contribution of a spouse as homemaker;
(10) marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and
(11) any history or pattern of family violence, as defined by Section 71.004.Id. Whatever amount the trial court decides to award after considering these factors, the court may not set an amount that requires the obligor spouse to pay monthly "more than the lesser of: (1) $5,000; or (2) 20 percent of the spouse's average monthly gross income." Id. § 8.055(a).
A. Section 8.052 factors
Husband challenges the amount of the award and argues that the evidence of Wife's needs and the factors in Section 8.052(1), (2), (3), (4), (9), and (10) weigh in favor of a lesser amount. We disagree that the trial court abused its discretion in making its award.
Regarding the factors in Subsections (1) and (2) Husband argues that Wife has "extensive education," that Wife has net resources sufficient to support herself, and that she turned down a job. There is no evidence that the master's degree Wife has in biblical studies provides her with any specific skills that would enable her to find an adequately-paying job that accommodates her scheduling needs. As for her net resources, we have already addressed that argument above.
Regarding Subsection (3), Husband argues that they were "only married from 2005 to 2019, and really only together until 2018 when Appellee Wife filed for divorce and moved away from Husband." Husband argues that "[t]his factor should have been used to decrease the amount of spousal maintenance if nothing else." Husband cites no authority to support that contention, however. The two were married for almost fourteen years. They agreed that she would stop working to become a stay-at-home parent, resulting in her not having had a job since 2008, thereby decreasing her marketability as a job candidate.
Regarding Subsection (4), Husband asserts that this factor weighs against Wife because she "was only 38 at the time of trial" and "still has plenty of time to work" and that she has "an extensive work history." Again, he does not challenge the trial court's findings that Wife had not worked outside the home since 2008 and that the jobs she had before that paid no more than $31,000 a year. Husband does not address the trial court's conclusion that Wife will not likely find a job that pays much more than her previous jobs did. Further, whether she has "plenty of time to work" is irrelevant because the trial court awarded spousal maintenance for only twelve months, not for the rest of Wife's life.
As for Subsection (9), Wife's contribution as a homemaker, Husband argues only that Wife's status as a stay-at-home parent did not prevent her from seeking employment. He makes no argument at all about Wife's contributions as a homemaker. Further, he does not challenge the trial court's findings that Wife "has dedicated the last twelve years to raising the children and taking care of the home" and that she "contributed to the home during the entire marriage and did not earn an income outside the home."
Regarding the marital misconduct factor in Subsection (10), the trial court found that "[Husband] has repeatedly exhibited displays of physical and verbal outrage and violence" and had engaged in domestic violence. The court found that Husband had once smacked Wife across the face, had once "bent [Wife] over his knee and spanked her like a child because he 'believed that she was behaving like a child,'" and had in 2018 angrily picked up their son B. by the arm, causing the child an injury. The findings also detail other outbursts of uncontrolled anger by Husband; note that the custody evaluator, whom the court found credible, had concluded that Husband had a distorted perception of the role that he played in conflict; and stated that Husband's "behavior and unwillingness to take any responsibility for his actions according to several different reports, more than suggests he has explosive capabilities." The trial court further found that "[Husband's] testimony at trial was not credible and illustrated his distorted sense of reality." In addition to the custody evaluator's testimony and report, these findings were based on Wife's testimony, the recording of a conversation between Wife and Husband that Wife had recorded, and the testimony and report of the psychologist who conducted the psychological evaluation of Wife and Husband. Husband's brief addresses the evidence and these findings by asking this court to believe his evidence on his outbursts, which he largely denied and blamed on Wife, and to set aside the trial court's finding on that basis. However, the trial court did not find Husband credible, and the court was the sole judge of credibility of the witnesses before it. See Hutchison v. Pharris, 158 S.W.3d 554, 568 (Tex. App.-Fort Worth 2005, no pet.) (noting that in a battle of competing evidence, it is the factfinder's prerogative to determine the witnesses' credibility).
The trial court further had evidence on Subsection (7), and the court specifically found that Husband has a greater ability than Wife to earn income. Husband does not dispute this finding.
Husband also argues that the trial court abused its discretion by awarding $2,000 because Wife did not show a need for more than $1,330.67, the amount of her monthly deficit. As we noted above, Wife stated in her expenses list that going forward, she would need to contribute to paying the property taxes and the property insurance, the costs of which would be about $333 a month. Even aside from that, Wife testified that she had, as of the time of trial, paid $45,000 in attorney's fees by using a credit card-presumably the credit card with an approximately $21,000 balance that was awarded to Wife-and borrowing the rest from her mother. Husband does not argue that the trial court could not have included Wife's obligation to repay what she borrowed in calculating Wife's monthly needs.
If Wife borrowed $20,000 from mother and repaid her $600 a month, it would take Wife almost three years to repay what she borrowed. In other words, unless Wife finds a job that pays quite a bit more than any of her previous jobs, it is likely that Wife will still owe her mother for what she borrowed well after the spousal maintenance payments cease.
We conclude that the trial court had sufficient evidence related to the Section 8.052 factors regarding the nature, amount, duration, and manner of the spousal maintenance payments to support the court's exercise of discretion. See In re Marriage of Elabd, 589 S.W.3d 280, 285-87 (Tex. App.-Waco 2019, no pet.). We overrule this part of Husband's second issue.
B. Husband's income and the statutory cap
Husband also argues under this issue that the trial court's award exceeded the statutory cap in Family Code Section 8.055. He asserts that the "best evidence available" showed that his gross monthly income at trial was $9,497.50, and thus the maximum amount that the trial court could award was $1,899.50. This "best evidence" to which he refers is his Exhibit R-3, which is a document comparing his business's profit and loss for the first half of 2018 to the first half of 2019. However, the trial court did not have to find this evidence credible. See Hutchison, 158 S.W.3d at 568.
Husband further argues that the trial court should have recalculated the award based on the "newly-discovered evidence" of the income that Husband "truly earned in 2019," as reflected in his 2019 tax return. For the same reason that the trial court did not abuse its discretion by not granting a new trial to redivide the marital property based on this tax return, we further hold that the trial court did not abuse its discretion by not granting a new trial to recalculate the spousal maintenance award. We overrule the remainder of Husband's second issue.
IV. Child support
In Husband's third issue, he argues that the evidence was legally and factually insufficient to support the child support award "given the facts presented by Husband as to his monthly income." He contends that the trial court "used outdated and inaccurate estimates" of his income, did not apply appropriate business expenses deductions, and "failed to consider all of the facts of the case" in setting the child support amount.
Husband does not argue that the trial court's child support calculation would have been incorrect if his income in 2019 had been the same as it had been in 2018, and the trial court apparently credited evidence that Husband's income did not decrease in 2019. For example, Wife introduced Exhibit W-23, which was a summary of the monthly deposits into Husband's personal bank account in the first several months of 2019 and the corresponding bank statements for those months, as well as Exhibit W-24, which was the bank statement for that account for April 2019. Additionally, Husband introduced Exhibit R-6, which he described as what he "net, ma[d]e salary from [his] company, [his] employment" from January 2018 to March 2019. The numbers in R-6 for January-March 2019 were similar to the numbers for that period in W-23. Further, R-6 showed that Husband's income for the first three months of 2019 was fairly similar to what his income had been in the first three months of 2018-the average of January-March 2018 was $12,799.62, and the average for that time period in 2019 was, according to the exhibit, $11,703.67. Including Exhibit W-24, Husband's personal bank account deposits in April 2019, results in a similar monthly average. This evidence supported a finding that Husband's 2019 income was on track to be similar to his 2018 income.
Husband challenges Exhibit W-23 as showing deposits into a business account and as not including business expenses excludable from his income under Family Code Section 154.065. See Tex. Fam. Code § 154.065 (providing that a trial court may, in its discretion, exclude certain business expenses from self-employment income). Husband does not, however, specify what business expenses the trial court should have deducted. Further, Wife testified that this bank account was his personal bank account and that the deposits were amounts from which taxes and business overhead had already been taken into account. Husband does not address this testimony.
Husband argues that the 2019 deposits cannot be used to estimate his annual income because his business has slower months in the summer, a fact that Wife conceded at trial. He contends that "the only way to truly calculate [his] income would have been to look at more time showing at least an entire year's worth of records in 2019" rather than just the months in 2019 for which Wife had bank statements. Husband could have produced his personal bank account statements for the 2019 summer months as trial exhibits, but he chose not to. Further, Husband's exhibit R-6 showed that in 2018 he had dramatically lower income in only one month, and thus the trial court had before it evidence that Husband's income is not always significantly lower in summer months.
Father further argues that his 2018 income was not a reflection of his usual income because he had a side job as a math teacher at a private school in 2018, which gave him income that he did not have in 2019. Other than Wife's testimony that he was working the side teaching job in March 2018, there is no evidence of how much of the year he held that job or how much income it brought in. There is no evidence that he was a teacher in summer 2018, when his income was, for the most part, similar to his income in other months.
Husband further argues that his Exhibit R-3 was the best evidence of his income. As noted above, R-3 is a document comparing Husband's business's January- June 2018 profits to its January-June 2019 profits. The document lists a "net income" of $37,012.04 for January-June 2018 and of $27,101.19 for the same period in 2019.The trial court was not required to accept this evidence as a credible representation of Husband's earnings. Likewise, although Husband testified that in June 2019, he brought in less than $5,000, the trial court did not have to accept this evidence as credible. Even if it did, it did not have to assume that that was Husband's income for most months in 2019 rather than a one-off bad month, like the month of June was for Husband in 2018.
It is not clear from the document how much Husband paid himself as wages in either time period. The chart lists payroll expenses of around $24,000 for both periods. Trial testimony shows that Husband has at least one other tutor working for him at the company, but some evidence in the record indicates that this tutor may be an independent contractor from whom Husband receives a share of earnings rather than an employee on his payroll.
Husband argues that Exhibit W-22, a summary provided by Wife of monthly deposits into Husband's business bank account for January-July 2019 and of projected income for Husband's business in those months, did not accurately reflect Husband's 2019 income. We need not address this argument because even if we exclude it from our consideration, other evidence supports the trial court's award.
Husband further argues that he simply cannot afford the child support payments and that he has to live with friends to make ends meet. Again, the trial court did not have to accept Husband's representations about his income. To the extent that Husband asserts that his income has materially changed since the order's rendition, he has the option of filing a motion to modify child support. See Tex. Fam. Code Ann. § 156.401. We overrule Husband's third issue.
Husband argues that because he has to live with others to make ends meet, his child support obligation should be lower. At the same time, he argues that the spousal support he pays to Wife can be lower because she saves money by living with her mother.
Conclusion
Having overruled Husband's four issues, we affirm the trial court's order.