Kathleen Davenport v. Donald Ray Davenport--Appeal from 312th District Court of Harris County

Affirmed and Memorandum Opinion filed May 17, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00506-CV

____________

KATHLEEN DAVENPORT, Appellant

V.

DONALD DAVENPORT, Appellee

On Appeal from the 312th District Court

Harris County, Texas

Trial Court Cause No. 95-57489

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

Appellant Kathleen Davenport ( Kathleen ) brought a motion for enforcement of child support order against appellee Donald Davenport ( Donald ). The trial court found that Donald was not in arrears for past child support. Kathleen brought this appeal, arguing in one issue that the evidence is legally insufficient to support the trial court s finding. We affirm.

Kathleen and Donald were divorced on September 4, 1996. They had one child, R.D., and under the terms of the divorce decree, Donald was required to pay Kathleen $100.00 for child support on the first and fifteenth of each month. The decree also stated that Donald should send the child support payments to the Harris County Child Support Division. Kathleen filed a motion for enforcement on January 9, 2003, alleging that Donald had failed to pay any child support for the first four years after the divorce and for portions of other years. In response Donald provided receipts, cancelled checks, and records from the Child Support Division showing that many child support payments had, in fact, been made. In Kathleen s third amended motion for enforcement, she credited the payments for which Donald had receipts, but still maintained that she did not receive child support payments for almost the entirety of 1996 1999 and for some of 2000 2002.

The trial court held a hearing in which both sides presented evidence and witnesses. Donald stated that he had made all child support payments, mostly in cash, at Kathleen s request, because Kathleen had no bank account and only limited access to a bank. Donald received hand-written receipts from Kathleen for the cash payments, but he had lost most of them over the course of several moves. Donald s sister, subsequent wife (from whom he is also divorced), and mother also testified that they had each delivered a check or cash to Kathleen for child support at various times when picking up R.D. for weekend visitation. Kathleen maintained that Donald did not make these payments. The trial court found that Donald did not owe any past child support and that Kathleen s claims were false.

In one issue, Kathleen argues that the evidence is legally insufficient to support the trial court s finding that no child support is due or owed by Donald. A trial court s decision to grant or deny the relief requested in a motion for enforcement is reviewed for an abuse of discretion. See In re T.J.L., 97 S.W.3d 257, 265 (Tex. App. Houston [14th Dist.] 2002, no pet.); McPherson v. Townsend, 593 S.W.2d 430, 432 (Tex. Civ. App. Houston [14th Dist.] 1980, no writ). Under the abuse-of-discretion standard, legal and factual insufficiency are not independent grounds of error, but rather are relevant factors in assessing whether the trial court abused its discretion. In re T.J.L., 97 S.W.3d at 266. There is no abuse of discretion as long as some evidence of a substantive and probative character exists to support the trial court s decision. Id. Further, the trial court, acting as trier of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Barrientos v. Nava, 94 S.W.3d 270, 288 (Tex. App. Houston [14th Dist.] 2002, no pet.).

There is evidence of a substantive and probative character that Donald was not in arrears on his child support payments. Donald testified that he had always made his payments; he paid Kathleen in cash at her request because soon after their divorce, she did not have a bank account and needed the money sooner than it would arrive through the court system. After contending in her initial motion for enforcement that Donald had not paid any child support, Donald produced around twenty-seven handwritten receipts signed by Kathleen stating that she had received a child support payment for a particular date. Kathleen gave Donald credit for these payments in her subsequent motions and admitted that Donald had paid her some support payments directly. There was also evidence that Kathleen filed a motion to increase support payments in 2002, but in that motion, she did not allege any arrearage for past child support. Also, Donald s subsequent wife, sister, and mother all testified that they had on occasion delivered child support payments to Kathleen when picking up R.D. for weekend visitation. Finally, as trier of fact, the trial court apparently chose not to believe Kathleen s allegations.

Because this evidence tends to support the fact that Donald made regular payments, the trial court did not abuse its discretion in finding that Donald did not owe past child support. Accordingly, we overrule Kathleen s sole issue.

The judgment of the trial court is affirmed.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed May 17, 2005.

Panel consists of Justices Yates, Anderson, and Hudson.