In the Interest of D.G.R., III, a Minor Child--Appeal from 285th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00439-CV

IN THE INTEREST OF D.G.R., III, A MINOR CHILD

From the 285th Judicial District Court, Bexar County, Texas

Trial Court No. 1999-CI-00160

Honorable Barbara Hanson Nellermoe , Judge Presiding

Opinion by: Phylis J. Speedlin , Justice

Sitting: Alma L. L pez , Chief Justice

Sandee Bryan Marion , Justice

Phylis J. Speedlin , Justice

Delivered and Filed: June 21, 2006

APPEAL ABATED; CAUSE REMANDED

Donald G. Ruebenson, II appeals the trial court's denial of his motion to modify child support, alleging that the trial court erred by, among other issues, failing to make findings of fact and conclusions of law. We agree that the trial court's failure to make findings was harmful error; therefore, we abate this appeal and remand the cause to the trial court for the entry of findings pursuant to section 154.130(b) of the Texas Family Code. See Tex. Fam. Code Ann. 154.130(b) (Vernon 2002). Because the entry of the findings of fact and conclusions of law may affect the issues the parties intend to raise upon the reinstatement of the appeal, we do not address the remaining issues raised in appellant's brief in this opinion.

Section 154.130 of the Texas Family Code states that without regard to Rules 296 through 299 of the Texas Rules of Civil Procedure, in rendering an order of child support, the trial court must make certain findings if: (1) a party files a written request with the court not later than ten days after the date of the hearing; (2) a party makes an oral request in open court during the hearing; or (3) the amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines. Tex. Fam. Code Ann. 154.130(a). The findings required are set forth in section 154.130(b).

Here, it is undisputed that appellant filed a written request for findings of fact and conclusions of law two days after the November 16, 2004 hearing which modified the child support order. Additionally, appellant orally requested findings of fact in open court at the April 8, 2005 hearing on appellant's motion for rehearing. Furthermore, the amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines. Appellant presented evidence that he earns $20,000 annually, and has net monthly resources of $1,602.57. Applying the twenty percent guideline for the support of one minor child, appellant concludes his child support obligation should be $320 per month. See Tex. Fam. Code Ann. 154.125(b) (Vernon 2002). The trial court ordered appellant to pay his ex-wife $630 per month. Although it appears that the trial court ordered the amount of support based on appellant's earning potential of $48,000 per year, see Tex. Fam. Code Ann. 154.066, the trial court did not make any oral findings on the record and did not make any findings of fact to support the variance in the amount of support ordered. In his first written request for findings, appellant asked the trial court to specify the reasons that the amount of monthly support ordered varied from the amount computed by applying the percentage guidelines in section 154.125 of the Texas Family Code.

The Texas Supreme Court has made it clear that certain findings are mandatory where the trial court uses factors other than net resources in determining the amount of child support. See Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); see also In re K.L.R., 162 S.W.3d 291, 310 (Tex. App.--Tyler 2005, no pet.) (relying on Tenery to hold that trial court abused its discretion by not making the findings required by section 154.130(b)). The Court noted that although a trial court has the discretion to deviate from the guidelines provided in section 154.125, when it does, it must, upon request, make written findings of fact and conclusions of law. Tenery, 932 S.W.2d at 30; Tex. Fam. Code Ann. 154.130. Harm to the complaining party is presumed unless the contrary appears on the face of the record. See Tex. R. Civ. P. 296; see also Cherne Indus. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989). Error is harmful if it prevents an appellant from properly presenting a case to the court of appeals. Tex. R. App. P. 44.1(a)(2). An appellant is prevented from presenting his case to the appellate court when he is forced to guess the reason or reasons the trial court ruled against him. See Brown v. McGonagill, 940 S.W.2d 178, 180 (Tex. App.--San Antonio 1996, no writ).

Because appellant timely requested findings, and because the amount of support ordered deviates from the amount computed by applying the percentage guidelines, the trial court erred in failing to make findings. See Tenery, 932 S.W.2d at 30. Because the absence of the findings prevented appellant from properly presenting his case to the court of appeals, the error was harmful. See Tex. R. App. P. 44.1(a)(2). Accordingly, this appeal is abated, and the cause is remanded to the trial court with instructions to enter findings pursuant to section 154.130(b) of the Texas Family Code. Tex. Fam. Code Ann. 154.130(b).

Phylis J. Speedlin , Justice