Dean Edward Elliott v. Katrina Kathleen Elliott-Weber--Appeal from 300th District Court of Brazoria County

Reversed and Remanded and Memorandum Opinion filed March 1, 2005

Reversed and Remanded and Memorandum Opinion filed March 1, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00130-CV

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DEAN EDWARD ELLIOTT, Appellant

V.

KATRINA KATHLEEN ELLIOTT-WEBER, Appellee

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On Appeal from the 300th District Court

Brazoria County, Texas

Trial Court Cause No. 14237*RH00

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M E M O R A N D U M O P I N I O N

Dean Edward Elliott appeals the trial court=s modification order increasing his monthly child support from $606.84 to $1,064.86 for his two children. In five issues, he complains that the trial court abused its discretion in finding a material and substantial change in circumstances sufficient to warrant a modification and in determining his net resources. Because the evidence is insufficient to support a finding of material and substantial change in circumstances, we reverse and remand.

I. Background

On February 20, 2001, Dean Elliott and Katrina Kathleen Elliott (now Elliott-Weber) divorced. Thirteen months later, Kathleen moved to modify the terms of the final decree of divorce to increase the amount of child support for their two children.[1] In December of 2003, the trial court held a hearing and ordered, in relevant part, an increase in Dean=s child support obligation from $606.84 to $1,064.86 per month. The trial court entered a written order modifying the parent-child relationship on January 23, 2004. This appeal followed.

II. Analysis

In his first issue, Dean contends the trial court erred in finding a material and substantial change in circumstances sufficient to warrant a modification.[2]

A. Standard of Review

A trial court=s child support order will not be overturned unless a clear abuse of discretion is shown. Rodriguez v. Rodriguez, 860 S.W.2d 414, 415 (Tex. 1993). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles, or when it rules without supporting evidence. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Under this standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but are relevant factors in assessing whether the trial court abused its discretion. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Zieba v. Martin, 928 S.W.2d 782, 786 (Tex. App.CHouston [14th Dist.] 1996, no writ).

B. Modification of Child Support Based on Material and Substantial Change

Child support provisions incorporated into a divorce decree may be modified when the movant has established either a material and substantial change in the circumstances of the child or of a person affected by the decree. Tex. Fam. Code '156.401(a). To determine if a material and substantial change in circumstances has occurred, 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. London v. London, 94 S.W.3d 139, 144 (Tex. App.CHouston [14th Dist.] 2002, no pet.). Thus, the record must contain both historical and current evidence of the relevant persons=financial circumstances. Without both sets of data, the court has nothing to compare and cannot determine whether a material and substantial change has occurred. Id. at 144B45. If no changes have occurred, the trial court abuses its discretion to modify. See Werlein v. Werlein, 652 S.W.2d 538, 540 (Tex. App.CHouston [1st Dist.] 1983, no writ).

 The circumstances of the children. Regarding the children=s financial circumstances, Katrina testified only that it has become more expensive to raise the kids since the divorce. Dean generally agreed with this statement.[3] However, this is not sufficient evidence of a material and substantial change in the children=s financial needs. See Payne v. Dial, 831 S.W.2d 457, 459 (Tex. App.CHouston [14th Dist.] 1992, no writ) (holding former husband=s slight increase in wages and former wife=s mere assertion that child=s expenses had increased was not sufficient evidence to support modification). Similarly, the mere fact that the children are a year older cannot, by itself, substantiate a modification of their child support. See In re Knott, 118 S.W.3d 899, 902 (Tex. App.CTexarkana 2003, no pet.) (stating that child=s increased age alone will not support modification of support order unless the record contains sufficient evidence from which a comparison can be made between the support needs at the time of the prior order and the current needs of the children); Bergerac v. Maloney, 556 S.W.2d 586, 586B87 (Tex. Civ. App.CDallas 1977, writ dism=d) (same).

 Circumstances of the affected parties. Katrina also presented no evidence that her own circumstances had materially and substantially changed since the rendition of the divorce decree. And, although evidence of Dean=s current income was presented, Katrina did not introduce historical data showing his financial circumstances at the time of the original divorce decree. Thus, the trial court had no comparative financial data. See Stofer v. Linville, 662 S.W.2d 783, 785 (Tex. App.CHouston [14th Dist.] 1983, no writ); Williams v. Williams, 596 S.W.2d 245, 247 (Tex. Civ. App.CHouston [14th Dist.] 1980, no writ); see also Baker v. Baker, 719 S.W.2d 672, 676 (Tex. App.CFort Worth 1986, no writ) (holding that former spouse=s testimony of current income and bare assertion that she was making less money than at time of earlier order was insufficient to demonstrate material and substantial change). Without this, the trial court could not determine that a material and substantial change has occurred. See London, 94 S.W.3d at 144B45; Cole v. Cole, 882 S.W.2d 90, 92 (Tex. App.CHouston [14th Dist.] 1994, writ denied).

 Evidence of child support guidelines. In response to Dean=s issue, Katrina cites section 156.402(a) of the Family Code, which provides the trial court may consider the child support guidelines to determine whether there has been a material and substantial change in circumstances. See Tex. Fam. Code '156.402(a); see also '154.122(a) (providing amount of child support established by child support guidelines is presumed reasonable and an order of support conforming to guidelines is presumed to be in the best interest of the child). Katrina contends the original child support amount did not comply with the guidelines, and that was evidence the trial court could have considered as proof of a change in circumstance. To support this contention, she relies on her testimony that (1) she was not represented by a lawyer at the time of divorce, (2) she was initially told Dean=s income level supported child support payments of $1,000 per month, (3) when she arrived at his lawyer=s office, she was told that his child support obligation would be $606.84, and (4) she did not know how to calculate the appropriate child support at the time.

We do not agree that this evidence shows a change in circumstances. Because we do not have evidence of Dean=s income at the time of the divorce, we cannot determine whether the original amount of support in fact deviated from the guidelines. Even if we were to assume Katrina=s testimony demonstrates that the original child support amount did not comply with the guidelines, a child support order that does not comply with the guidelines does not by itself establish a material and substantial change in circumstances. Farish v. Farish, 921 S.W.2d 538, 544 (Tex. App.CBeaumont 1996, no writ); Cole, 882 S.W.2d at 92. As the movant, it was Katrina=s burden to show a material and substantial change in circumstancesCnot just that the original amount of support was not within the guidelines. The mere fact that the trial court could consider the guidelines does not change her burden of proof or create elements that establish the need for modification. See Cole, 882 S.W.2d at 92.

Based on the foregoing, we hold that Katrina failed to present sufficient evidence to support the trial court=s finding of a material and substantial change in circumstances sufficient to support modifying the original amount of child support. We therefore sustain Dean=s first issue.

III. Conclusion

We reverse the trial court=s judgment and, as appellant requested, we remand for a new trial.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed March 1, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.

[1] Katrina also requested a change in access to and possession of the children, and that she be awarded the income tax exemptions for the children. However, neither of these requests is a subject of this appeal.

[2] In his second issue, Dean contends the trial court erred in using his bank statements rather than his income tax return to determine his net resources. In his remaining three issues, he contends the trial court erred in determining his net resources from withdrawals from a joint bank account, which he shares with his current wife, without considering his business expenses, without taking into account returns of capital deposited in the joint account, and without deducting monies his current wife obtained from her parents to help her establish her own business. Because we sustain Dean=s first issue and reverse and render, we do not reach his other issues.

[3] Dean testified as follows:

Q. Would the expenses relative to the kids have gone up since the divorce?

A. Just buying more clothes more often.

Q. They get more expensive to raise as they get older; don=t they?

A. On certain aspects, yes.