Joe Alan Vernon v. Helen Luster Vernon--Appeal from 143rd District Court of Reeves County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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JOE ALAN VERNON, ) No. 08-04-00140-CV

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Appellant, ) Appeal from

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v. ) 143rd District Court

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HELEN LUSTER VERNON, ) of Reeves County, Texas

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Appellee. ) (TC# 01-11-17216-CVR)

O P I N I O N

Joe Alan Vernon appeals an order denying his motion to modify child support. We affirm.

FACTUAL SUMMARY

The trial court entered a final decree of divorce on February 8, 2002 requiring Appellant to pay child support in the amount of $1,000 per month for his two children. Appellant did not regularly pay his support obligations and in January 2003, the trial court // granted Appellant s motion to modify child support and reduced support to $300 per month. The reduction in child support was made retroactive to August 1, 2002. From September 1, 2002 through September 1, 2004, Appellant did not pay any child support except for March 2004 when a FED OFFSET in the amount of $1,101 was applied to the balance by the Attorney General s Child Support Enforcement Division. On June 20, 2003, Appellant filed another motion to modify the parent-child relationship, seeking an additional and retroactive reduction of his child-support obligation.

At the hearing held in January of 2004, Appellant testified that he could no longer work in his oil field service business due to back injuries received in an assault on April 24, 2002. Prior to his injury, Appellant maintained a business which serviced natural gas wells. This required that Appellant perform administrative and managerial duties as well as physically demanding labor in the field. Since the injury, Appellant had been unemployed. He had been obtaining medical care and expected to have surgery at an unspecified date in the future. Appellant s initial application for Social Security disability benefits had been denied but his appeal remained pending. Consequently, he had relied on family members, including his mother, to support him since his injury. Appellant had been attending classes in order to obtain a real estate license and he planned to take the exam the next month. He had interviewed with Century 21 and would become employed with that company as a real estate agent as soon as he obtained his license.

The trial court denied the motion to modify on March 12, 2004 and entered the following findings of fact:

The Court finds that there has been a significant change in the net resources of the Movant but that there was a failure by Movant to prove to the satisfaction of the Court his current net resources so that an appropriate calculation of child support could be made.

The Court finds that despite Movant s testimony that he is disabled, that he is in fact able to work and that he has been under-employed without justifiable excuse. It being the burden to establish net resources on the Motion being on Movant, the Court declines to modify the child support.

MODIFICATION OF CHILD SUPPORT

In his sole issue for review, Appellant contends that the trial court abused its discretion by refusing to modify the child support order after finding that there had been a significant change in Appellant s net resources.

Relevant Authority and Standard of Review

A trial court may modify an order that provides for the support of a child if: (1) 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; or (2) it has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines. Tex.Fam.Code Ann. 156.401 (Vernon 2002). In determining whether there has been a material and substantial change in circumstances, the trial court must compare the financial circumstances of the children and the affected parties at the time the existing support order was entered with their circumstances at the time the modification is sought. See Farish v. Farish, 921 S.W.2d 538, 541 (Tex.App.--Beaumont 1996, no writ); Tucker v. Tucker, 908 S.W.2d 530, 532 (Tex.App.--San Antonio 1995, writ denied); Penick v. Penick, 780 S.W.2d 407, 408 (Tex.App.--Texarkana 1989, writ denied). The movant has the burden to show a material and substantial change by a preponderance of the evidence. Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.--Houston [1st Dist.] 1993, writ denied). Nevertheless, it is the best interest of the child that is always the trial court s primary consideration when it determines questions of child support. Tucker, 908 S.W.2d at 532- 33. Therefore, the trial court retains broad discretion in making the equitable decision of whether to modify a prior support order. Lindsey v. Lindsey, 965 S.W.2d 589, 593 (Tex.App.--El Paso 1998, no pet.). For this reason, we review a trial court s decision to deny or grant a motion to modify a child support order for an abuse of discretion. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

In conducting this review, we employ a hybrid analysis which takes into account the overlapping abuse of discretion and sufficiency standards. Jenkins v. Jenkins, 16 S.W.3d 473, 477 (Tex.App.--El Paso 2000, no pet.); Lindsey, 965 S.W.2d at 592. Our inquiry consists of two parts: (1) Did the trial court have sufficient information upon which to exercise its discretion; and (2) did the trial court err in its application of discretion? See Lindsey, 965 S.W.2d at 592. The traditional sufficiency review comes into play with regard to the first question; however, our inquiry cannot end there. See id. We must proceed to determine whether, based on the elicited evidence, the trial court made a reasonable decision. See id. Stated inversely, we must conclude that the trial court s decision was neither arbitrary nor unreasonable. See id.

Analysis

Although the trial court found that there had been a significant change in Appellant s net resources, it declined to modify Appellant s support obligation because Appellant failed to establish his current net resources so that appropriate support could be calculated. Appellant testified that he had received assistance from family members, particularly his mother, since his injury in April 2002 but he did not offer any specific evidence regarding how much assistance he had been given. Gifts from family members are included in the calculation of net resources. Tex.Fam.Code Ann. 154.062. As the movant, Appellant bore the burden to demonstrate that his current net resources justified further reduction in his child support obligation. This he failed to do.

Moreover, the trial court also found that Appellant was able to work and that he was underemployed without justifiable excuse. Appellant has not challenged or even addressed this finding on appeal. The duty to support is not limited to a parent s ability to pay from current earnings, but extends to his or her financial ability to pay from any and all sources that might be available. In re P.J.H., 25 S.W.3d 402, 406 (Tex.App.--Fort Worth 2000, no pet.); Pharo v. Trice, 711 S.W.2d 282, 284 (Tex.App.--Dallas 1986, no writ). Section 154.066 of the Texas Family Code allows the trial court to apply the support guidelines to the earning potential of an obligor, rather than actual income, if the obligor is intentionally underemployed. Tex.Fam.Code Ann. 154.066. // A parent who is qualified to obtain gainful employment cannot evade his or her support obligation by voluntarily remaining unemployed or underemployed. Eggemeyer v. Eggemeyer, 535 S.W.2d 425, 427-28 (Tex.Civ.App.--Austin 1976), aff d, 554 S.W.2d 137 (Tex. 1977); see Pharo, 711 S.W.2d at 284 (mother was ordered to pay child support even though she was unemployed; she had worked as an airline stewardess but at the time of the modification hearing was spending her time researching genealogy, playing tennis, helping friends put together a cookbook, and volunteering for the Dallas County Medical Auxiliary). It was well within the trial court s discretion to refuse to reduce Appellant s child support obligation. We overrule the sole issue for review and affirm the order of the trial court.

November 3, 2005

ANN CRAWFORD McCLURE, Justice

Before Barajas, C.J., McClure, and Chew, JJ.