In the Interest of D.L.B-M., A Minor Child--Appeal from 25th Judicial District Court of Guadalupe County

MEMORANDUM OPINION
No. 04-02-00833-CV
IN THE INTEREST OF Danelle-Lanette Grayce-Marie MCJUNKINS
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 97-1254-CV
Honorable Dwight E. Peschel, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: May 7, 2003

AFFIRMED

Billy Walter McJunkins appeals the trial court's order denying his motion to modify child support. Billy contends that the trial court erred in denying his motion because: (1) his circumstances have materially and substantially changed since the last order; and (2) the amount of child support under the order differs by either 20% or $100 from the amount that would be awarded in accordance with the child support guidelines. We affirm the trial court's order.

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). Although the trial court's order in this case is based on a directed verdict, we review the trial court's order under an abuse of discretion standard. In re M.C.R., 55 S.W.3d 104, 109 (Tex. App.--San Antonio 2001, no pet.).

The parties divorced in 1997, and Billy agreed to pay $1,700 in child support each month. At that time, Billy's annual income was approximately $48,000. At the time of the hearing, Billy had been working as a realtor for two years. Although Billy testified that his net income in 2001 was $24,103, he also testified that his net income for the first six months in 2002 was $33,180.47. In calculating his net income, Billy included the amount he had paid in child support ($8,393.91) as an expense. At the time of the hearing, Billy had listings on three properties ranging from $500,000 to $1,300,000 in sales price, and he was entitled to receive 67% of the commissions paid on those sales. Billy was uncertain of when those properties might sell. Billy lived with a friend in a house which had a fair market value of $335,000. Billy sold the house to his friend but waived his commission on the sale. In addition to the income from his commissions, Billy also received annual retirement income of $9,216 that he did not include in calculating his net income. Assuming Billy received net income in the same amount he received during the first six months of 2002, but adding back in the child support which is not an expense deduction and the $9,200 in retirement income, Billy admitted that his net income would be in excess of what he made at the time the child support order was entered. This evidence does not support a finding that Billy's circumstances have materially and substantially changed, and Billy did not introduce any evidence that the monthly amount of child support under the order differed by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines. Finding no abuse of discretion, the trial court's order is affirmed.

Alma L. L pez, Chief Justice