Reinhold Knust v. Rosewita Brown--Appeal from 170th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-91-123-CV

REINHOLD KNUST,

Appellant

v.

ROSEWITA BROWN,

Appellee

From the 170th District Court

McLennan County, Texas

Trial Court # 88-1567-4

O P I N I O N

This is a child-support modification case. Reinhold Knust and Rosewita Knust, now Rosewita Brown, were divorced on January 9, 1989. The divorce decree named Reinhold the managing conservator of the parties' four minor children and appointed Rosewita the possessory conservator. Rosewita, however, was not ordered to pay child support. In December 1990, Reinhold filed a motion to modify, alleging a change of circumstances of the children or a person affected by the child-support order. See Tex. Fam. Code Ann. 14.08 (c)(2) (Vernon Supp. 1992). The court denied his motion. We will affirm.

The court entered the following findings of fact:

1. [Reinhold's] ability to support the children subject of this suit has not materially and substantially changed since the date of rendition of the prior Order in this cause.

2. [Reinhold's] net resources have not materially and substantially changed since the date of rendition of the prior Order in this cause.

3. [Rosewita's] inability to support the children subject of this suit has not materially and substantially changed since the date of rendition of the prior Order in this cause.

4. [Rosewita's] net resources have not materially and substantially changed since the date of rendition of the prior Order in this cause.

5. The circumstances concerning the expenses of the children subject of this suit have not materially and substantially changed since the rendition of the prior Order in this cause.

In points one, three, five, and seven, Reinhold challenges the legal sufficiency of the evidence supporting these findings. Points two, four, six, and eight are that these findings are against the great weight and preponderance of the evidence.

The following tests will be used to resolve these complaints. A party attempting to set aside an adverse fact finding as matter of law must overcome two hurdles. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). Second, if there is no evidence to support the fact-finder's answer, the entire record must then be examined to see if the contrary proposition is established as a matter of law. Id. at 690. To prevail in attacks on the legal sufficiency of evidence supporting negative findings, Reinhold must demonstrate that the evidence conclusively established all vital facts in support of an affirmative finding as a matter of law. See id.

When the challenge is framed as an "insufficient evidence" point, we will consider all the evidence in the case to determine if the finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. See Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex. 1973).

Points one and two concern the finding that there was no substantial and material change in Reinhold's financial position. Although he testified to a decrease in income from his dairy operation from 1988 to 1989 and the fear of a continuation of the decrease in milk prices, we must disregard this evidence in a legal-sufficiency review because it is contrary to the finding. Instead, we focus on the fact that testimony also revealed that the income from Reinhold's pawn shop increased $11,985 in the same years. This increase in income is some evidence that supports the finding that a substantial or material adverse change had not occurred. Accordingly, our inquiry on the legal-sufficiency point ends here. See Sterner, 767 S.W.2d at 691.

Furthermore, an examination of all the evidence, both contrary to and in favor of the finding, reveals that the finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust. See Traylor, 497 S.W.2d at 945. Reinhold's dairy operation losses were more than offset by the increase in income from his pawn shop, and he claimed no reduction in rental income from numerous other properties. Points one and two are overruled.

Reinhold's third and fourth points attack the evidence supporting the finding that the circumstances concerning the expenses of the children have not substantially and materially changed since the date of the original order. He testified to a substantial increase in the expenses, but left the statistical testimony to his house keeper. She testified that, although she helped Reinhold compile the figures that indicate a substantial increase, she could not verify the figures with any degree of accuracy.

"Where the testimony of an interested witness is not contradicted by any other witness or attendant circumstances, and the same is clear, direct, and positive, and free from contradictions, inaccuracies, and circumstances tending to cast suspicion thereon, it is taken as true as a matter of law." Cochran v. Wool Growers Cent. Storage Co., 140 Tex. 184, 166 S.W.2d 904, 908 (Tex. 1942). Furthermore, the trial court is free to disbelieve the witness of the party bearing the burden of proof. Yap v. ANR Freight Systems Inc., 789 S.W.2d 424, 425 (Tex. App. Houston [1st Dist.] 1990, no writ). Because the circumstances tend to cast suspicion on this testimony, Reinhold has not established a substantial and material change in the children's expenses as a matter of law. See Cochran, 166 S.W.2d at 908.

Considering the whole record, the finding is not so against the great weight and preponderance of the evidence as to be manifestly unjust. See Traylor, 497 S.W.2d at 945. Therefore, points three and four are overruled.

Points five and six relate to the finding that Rosewita's net resources and ability to support the children have not substantially and materially changed. Her uncontradicted testimony was that she has not been employed since the date of the prior order. She testified that her only business venture was a complete failure that divested her of all of her property settlement from the divorce and that her only income is an annual $10,0000 payment she receives under a settlement agreement with Reinhold. The payment was a part of the agreement incident to the divorce and is referred to in the divorce decree. Therefore, no substantial or material change has occurred because of that payment. Rosewita's testimony of her unemployment, failed business venture, and lack of any favorable change in income is evidence that supports the finding that there has been no substantial and material change in her financial condition. Consequently, our inquiry ends on the matter-of-law challenge. See Sterner, 767 S.W.2d at 691.

Moreover, this finding was not so against the great weight and preponderance of the evidence as to be manifestly unjust. See Traylor, 497 S.W.2d at 945. Points five and six are overruled.

The seventh and eight points are legal and factual-sufficiency challenges to the trial court's global findings that no substantial or material changes occurred with respect to any of the three situations that would justify a modification of support. We overrule points seven and eight for the reasons stated in our discussion of points one through six.

Reinhold also argues, in general, that the court abused its discretion when it failed to modify the original child-support order. See Tex. Fam. Code Ann. 14.08(c)(2) (Vernon Supp. 1992). An abuse of discretion occurs when the court's decision is arbitrary or unreasonable. Pratt v. Texas Department of Human Resources, 614 S.W.2d 490, 494 (Tex. Civ. App. Amarillo 1981, writ ref'd n.r.e.). An appellate court, however, cannot simply substitute its own judgement for that of the trial court. Id. After a careful review of the record, we find that the court's actions were not arbitrary or unreasonable. See id. Accordingly, Reinhold's contention is without merit.

Point nine, which Reinhold conceded need not be considered unless we rule affirmatively on one his of first eight points, is not reached. The judgement is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed February 19, 1992

Do not publish