Martha L. Randolph v. Randy C. Randolph--Appeal from 311th District Court of Harris County

Affirmed and Memorandum Opinion filed September 20, 2005

Affirmed and Memorandum Opinion filed September 20, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00180-CV

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MARTHA L. RANDOLPH, Appellant

V.

RANDY C. RANDOLPH, Appellee

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On Appeal from the 311th District Court

Harris County, Texas

Trial Court Cause No. 02-62809

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

Appellant, Martha L. Randolph (AMartha@), appeals from a divorce decree dissolving her marriage to appellee, Randy C. Randolph (ARandy@). In her sole issue, Martha contends the trial court erred by refusing to award retroactive child support. Randy has filed a motion for sanctions contending Martha=s appeal is frivolous. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. We deny Randy=s motion for sanctions.

Retroactive Child Support

After a bench trial, the trial court entered a divorce decree dissolving the couple=s marriage and dividing their property. The trial court did not order current child support because the couple=s only child turned eighteen before the decree was entered. However, Martha appeals the trial court=s failure to award retroactive child support. At the trial, the trial court stated that it would not award retroactive support because there was no pleading to support it.

Martha contends she was not required to specifically plead for Aretroactive support.@[1] In response, Randy contends Martha was required to specifically plead for retroactive support. Alternatively, Randy contends we must uphold the trial court=s decision because the trial court did not file findings of fact and conclusions of law and other grounds support the trial court=s order. We agree with Randy=s second contention.

Although the trial court commented at the bench trial that it refused to award retroactive support because there was no pleading, Martha did not properly request, and the trial court did not file, findings of fact and conclusions of law.[2] We may not look to a trial court=s comments at the conclusion of a bench trial as a substitute for findings of fact and conclusions of law. In re W.E.R., 669 S.W.2d 716, 716 (Tex. 1984) (per curiam). When findings of fact and conclusions of law are not properly requested and none are filed, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Id. at 717. In the absence of findings and conclusions, the judgment of the trial court implies all necessary fact findings in support of the judgment. Id. Here, we need not decide whether Martha was required to specifically plead for retroactive support because there is another ground for denying retroactive support that is supported by the evidence.

Retroactive child support is not mandatory; rather, a trial court maintains discretion in deciding whether to award retroactive support. See Tex. Fam. Code Ann. ' 154.009 (Vernon 2002) (providing that the court Amay@ order retroactive child support); Tex. Fam. Code Ann. ' 154.131(a) (Vernon 2002) (stating Athe child support guidelines are intended to guide the court in determining the amount of retroactive child support, if any, to be ordered.@) (emphasis added); Garza v. Blanton, 55 S.W.3d 708, 709B10 (Tex. App.CCorpus Christi 2001, no pet.); In re Guthrie, 45 S.W.3d 719, 727 (Tex. App.C Dallas 2001, pet. denied). Therefore, we will not reverse a trial court=s refusal to award retroactive child support absent an abuse of discretion. See Garza, 55 S.W.3d at 710; Guthrie, 45 S.W.3d at 727. A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241B42 (Tex. 1985); Newberry v. Bohn-Newberry, 146 S.W.3d 233, 235 (Tex. App.CHouston [14th Dist.] 2004, no pet.). A trial court does not abuse its discretion when some evidence of a substantive and probative character supports the trial court=s order. Newberry, 146 S.W.3d at 235.

Randy contends the trial court did not abuse its discretion by denying retroactive support because he voluntarily paid some child support. We agree. In determining the amount of retroactive support, if any, a trial court must consider the obligor=s net resources and certain factors. See Tex. Fam. Code Ann. ' 154.131(b) (Vernon 2002). One factor is whether Athe obligor has provided actual support or other necessaries before the filing of the action.@ Id. ' 154.131(b)(4). Therefore, the trial court is allowed to consider an obligor=s actions before compliance with any judicially-mandated support schemes. See id.; Garza, 55 S.W.3d at 710B11.

Both Randy and Martha testified that Randy voluntarily paid support after the couple separated but before any divorce suit was filed.[3] However, the amount of the voluntary support was disputed. Randy testified he has paid approximately $12,000 to support Martha and the child. It is not exactly clear how much of this figure was voluntary support, as opposed to court-ordered temporary support, although Randy=s testimony indicates approximately $7,500 was voluntary support.[4] Martha=s testimony indicates Randy paid at most $2,200 in voluntary support, and he was reluctant to pay any support although his income was significantly more than Martha=s income. However, the trial court was free to believe Randy=s testimony regarding the amount of voluntary support he paid. See Barrientos v. Nava, 94 S.W.3d 270, 288 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (recognizing that in a bench trial, the trial court is the sole judge of the credibility of the witnesses and weight to be given their testimony). Thus, the trial court could have concluded that Randy had paid a sufficient amount of support before the divorce action was filed. See Garza, 55 S.W.3d at 711 (finding trial court did not abuse its discretion by refusing to order retroactive support in paternity suit because trial court could have considered obligor=s payments before suit was filed and decided he Ahad already contributed enough money for support.@).

Moreover, even if the amount of voluntary support was limited, the trial court acted within its discretion if it denied retroactive support because Randy had paid some voluntarily support. See Tex. Fam. Code Ann. ' 154.131(b)(4); Guthrie, 45 S.W.3d at 728B29 (finding trial court did not abuse its discretion by refusing to award retroactive support although father=s voluntary support payments were less than amounts calculated by applying statutory guidelines); In the Interest of J.H., 961 S.W.2d 550, 552 (Tex. App.CSan Antonio 1997, no pet.) (finding trial court did not abuse its discretion by ordering retroactive child support back to date paternity action was answered, rather than year of child=s birth, although amount of previous voluntary support was limited, some of mother=s requests for support had been denied, and father knew of paternity since the child=s birth, because father had provided some support upon mother=s request and child resided in grandparents= home her entire life). Accordingly, we overrule Martha=s sole issue.

Motion For Sanctions

Randy has filed a motion for sanctions claiming Martha=s appeal is frivolous because the law and record do not support her arguments and she misrepresented the law and the record in her brief. See Tex. R. App. P. 45. Whether to grant sanctions is a matter of discretion that we exercise with prudence and caution, and only after careful deliberation. Conseco Fin. Servicing Corp. v. Klein Indep. Sch. Dist., 78 S.W.3d 666, 676 (Tex. App.CHouston [14th Dist.] 2002, no pet.). We will impose sanctions only in circumstances that are truly egregious. Id. If an appellant=s argument on appeal fails to convince the court, but has a reasonable basis in law and constitutes an informed, good faith challenge to the trial court=s judgment, sanctions are not appropriate. Id. After reviewing the record and Martha=s brief, we find sanctions are not appropriate and exercise our discretion to deny Randy=s motion.

The trial court=s judgment is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed September 20, 2005.

Panel consists of Justices Frost, Seymore, and Guzman.

[1] In her divorce petition, Martha requested the court to Amake orders for . . . support of the child,@ who was not yet eighteen at that time. However, she did not use the term Aretroactive support.@

[2] Although Martha timely filed an initial request for findings of fact and conclusions of law, she did not timely file a ANotice of Past Due Findings of Fact and Conclusions of Law.@ See Tex. R. Civ. P. 297; Curtis v. Comm=n for Lawyer Discipline, 20 S.W.3d 227, 232 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (recognizing that the failure to file a past due notice waives the right to complain about the trial court's failure to file findings of fact and conclusions of law).

[3] Randy originally filed a divorce suit in Bell County, Texas. He non-suited that case before a final order was rendered because Martha moved to transfer venue to Harris County. Martha then filed this divorce suit in Harris County. The evidence shows that Randy voluntarily paid some support before he filed the Bell County suit.

[4] Randy paid some temporary support pursuant to agreed orders in both the Bell County suit and the Harris County suit; however, the record reflects he did not pay any support during the five-month period between his non-suit of the Bell County suit and the entry of temporary orders in the Harris County suit.