In the Interest of T.M.K., A Child--Appeal from 131st Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00673-CV
IN THE INTEREST OF T.M.K., a Child
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 92-CI-08149
Honorable Martha Tanner, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice (concurring in the judgment)

Phylis J. Speedlin, Justice (concurring in the judgment)

Delivered and Filed: July 30, 2003

AFFIRMED

Both parties perfected an appeal of the trial court's order denying Petitioner's Third Amended Petition to Enforce Decree of Divorce. The Petitioner, Deborah June Koeller ("Deborah"), contends that she was entitled, as a matter of law, to enforcement of the divorce decree's contractual provisions that provided for automatic formulaic increases in child support. The Respondent, Jim Mark Koeller ("Jim"), contends that the trial court erred in awarding Deborah attorneys' fees. We affirm the trial court's judgment.

Background

When Deborah and Jim divorced in 1993, they consented to the terms of the divorce decree and stipulated that the decree was also a contract. The decree required Jim to pay child support in the amount of $1,175 per month until the date of the earliest of the occurrence of one of the following events:

(1) the child reaches the age of 18 years, provided that, if the child is fully enrolled in an accredited primary or secondary school in a program leading toward a high school diploma, the periodic child-support payments shall continue to be due and paid until the end of the school year in which the child graduates;

(2) the child marries;

(3) the child dies;

(4) the child's disabilities are otherwise removed for general purposes;

(5) the child is otherwise emancipated; or

(6) further order modifying this child support.

The decree provided that the amount of child support "shall not be modified by either of the parties before May 31, 1994." With regard to Deborah's contention regarding formulaic increases, the decree provided:

The Court FURTHER FINDS that the parties AGREE and THEREFORE ORDERS AND DECREES that on and after June 1, 1994, the amount of child support and provisions for withholding by JIM MARK KOELLER'S employer may be increased in accordance with the following formula:

At any time in which the Total Income of JIM MARK KOELLER exceeds, by ten percent, the Total Income upon which the child support is, at that time based, the child support shall be increased directly proportionate to the increase in his Total Income compared to the Total Income upon which his then current child support obligation was based.

The Court FINDS that for the purpose of this agreement, the term "Total Income" is defined as 100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses), interest, dividends, royalty income, self-employment income (defined as income from self-employment, whether positive or negative), including benefits allocated to an individual from a business or undertaking in the form of a proprietorship, partnership, joint venture, close corporation, agency, or independent contractor, less ordinary and necessary expenses required to produce that income, but may exclude amounts allowable under federal income tax law as depreciation, tax credits, or any other business expenses shown by the evidence to be inappropriate to the determination of income for the purpose of calculating child support, net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including noncash items such as depreciation), and all other income actually being received, including but not limited to severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits, unemployment benefits, disability and workers' compensation benefits, interest income from notes but not including return of principal or capital, and/or accounts receivable regardless of the source, gifts and prizes.

Jim paid child support in the amount of $1,175 each month until May 1, 1997, when Jim voluntarily increased the amount of child support he paid to $1,507 per month. Thereafter, Jim voluntarily increased the child support to $1,803 per month beginning May 1, 1998, and to $2,200 per month beginning November 1, 1999.

In 1997, Deborah filed a motion to modify, seeking to increase the child support based on the formula set forth in the divorce decree. Jim answered asserting several affirmative defenses, including estoppel, illegality, waiver, laches, ambiguity, and res judicata. Jim also filed a counter-petition seeking to decrease the child support and to modify custody.

The trial court held a hearing on February 28, 2002. Deborah introduced into evidence the divorce decree and Jim's income tax returns for 1995-2000. Jim introduced into evidence his W-2 forms for 2001 and Deborah's income tax returns for 1996-2000. Deborah's attorney testified that his fees were $27,860 through February 25, 2002 and that his fees were reasonable and necessary. After Deborah rested, Jim moved for a directed verdict. The trial court granted the directed verdict but ordered Jim to pay $15,000 in attorneys' fees. In its findings of fact and conclusions of law, the trial court found that Jim did not present any evidence on his counter-petition and that Deborah should be awarded attorneys' fees for the preparation of her defense to the claims asserted by Jim. Both parties appealed.

Motion for Judgment

After the plaintiff has rested its case in chief in a bench trial, a judge may grant a motion for judgment. See Qantel Bus. Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302, 304 (Tex. 1988). Upon such a motion, the trial court, sitting as trier of fact and law, may rule on both the legal and factual issues in the case and make fact findings and conclusions of law if requested by a party. Id. 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. In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984). In the absence of findings and conclusion, the judgment of the trial court implies all necessary fact findings in support of the judgment. Id.

The trial court was not requested to enter findings of fact and conclusions of law with regard to the granting of the motion for judgment. We agree with Jim's contention that Deborah has failed to properly assign error on appeal because she fails to address each of the legal theories that could be used to uphold the trial court's finding.

Even if we considered the merits of the trial court's action, a trial court is accorded broad discretion in setting and modifying child support. In re M.C.R., 55 S.W.3d 104, 109 (Tex. App.--San Antonio 2001, no pet.). The divorce decree did not remove this discretionary authority from the trial court because it provides that the amount of child support "may be increased." (emphasis added). In addition, the introduction of Jim's tax returns into evidence did not establish his "Total Income" as that term is defined in the divorce decree; therefore, the trial court did not have evidence before it to calculate a modification under the formula set forth in the divorce decree even if the trial court determined that a modification of the child support was in the best interest of the child. See Tucker v. Tucker, 908 S.W.2d 530, 532-33 (Tex. App.--San Antonio 1995, writ denied) (noting best interest of child is primary consideration in determining questions of child support). In view of the evidence presented, the trial court did not abuse its discretion in refusing to modify the child support. (1)

Attorneys' Fees

The award of attorneys' fees in a suit affecting the parent-child relationship is within the trial court's discretion. Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996). Because Jim's counter-petition sought to modify the amount of child support he was ordered to pay, the trial court had the discretion to award attorneys' fees. See Tex. Fam. Code Ann. 106.002 (Vernon 2002); Norris v. Norris, 56 S.W.3d 333, 346 (Tex. App.--El Paso 2001, no pet.).

Jim contends that Deborah failed to segregate the attorneys' fees incurred in preparing and pursuing her enforcement action from the attorneys' fees incurred in defending against Jim's claims. However, Jim sought to modify the child support based in part on his income. The change in Jim's income also was the basis for Deborah's enforcement action. The trial court only awarded Deborah $15,000 of the $27,860 in attorneys' fees that one of her attorneys testified had been incurred. Given that the claims asserted by Jim in his counter-petition and the claims asserted by Deborah in her motion to enforce were dependent, in part, upon the same facts or circumstances, the trial court did not abuse its discretion in not requiring Deborah to segregate the attorneys' fees incurred in connection with each claim. Stewart Title Co. v. Sterling, 822 S.W.2d 1, 11 (Tex. 1991).

Jim also contends that Deborah's pleadings do not support the award of attorneys' fee because Deborah's pleadings asked for fees only for enforcement of the contract. Deborah's answer to Jim's counter-petition, however, expressly states that she was required "to secure the undersigned attorneys to defend this action." Although Deborah's pleadings do not expressly reference section 106.002 of the Texas Family Code, her pleadings do request attorneys' fees incurred in defending against Jim's counter-petition.

In view of the evidence presented, the trial court did not abuse its discretion in awarding attorneys' fees. (2)

Conclusion

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

1. Although our holding is based on the trial court's retention of its discretion to modify the amount of child support under the terms of the decree as written, we question whether a provision in a divorce decree providing for automatic formulaic increases would ever be enforceable as a matter of public policy. The case law on this issue is likely scarce because few family law attorneys would ever seek to enforce such a questionable provision.

2. We note that we are constrained in reviewing the trial court's award of attorneys' fees by the applicable abuse of discretion standard of review that precludes this court from substituting its own judgment for the trial court's judgment. In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002). Just as we question the public policy implications of an automatic formulaic child support increase provision in a divorce decree, we also question whether a party seeking to enforce such a provision should be awarded attorneys' fees. Resolving the attorneys' fees issue in this case based on our questions, however, would be substituting our judgment for that of the trial court which we are precluded from doing.