Sandra Baldwin Walters v. Alfred Barritt Taylor--Appeal from 310th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-92-116-CV

SANDRA BALDWIN WALTERS,

Appellant

v.

ALFRED BARRITT TAYLOR,

Appellee

From the 310th District Court

Harris County, Texas

Trial Court # 84-14221

O P I N I O N

Sandra Walters appeals the trial court's order denying her motion to modify the decree of divorce from her former husband, Alfred Taylor. Because she failed to offer any evidence that her circumstances or those of Taylor or the children have materially and substantially changed since the date of divorce, we affirm.

The divorce decree, signed by the trial judge on September 28, 1984, designated Walters and Taylor joint managing conservators of the children, approved their written agreement containing provisions for conservatorship and support of the children, and ordered that "there shall be no child support paid by either party to the other." Walters filed a motion to modify on May 29, 1991, alleging:

The circumstances of the children or a person affected by the order or the portion of the decree waiving the payment of support for the children, have materially and substantially changed since the entry of the order to be modified, and the child support payments previously waived by the parties should be ordered retroactive from the date of the filing of this motion.

(Emphasis added).

On December 10 the parties appeared before the court for a hearing on Walters' motion to modify. After Walters rested, Taylor moved for judgment. The trial court granted that motion and, on December 11, signed an order denying Walters' motion to modify. Thereafter, Walters timely filed a Request for Findings of Facts and Conclusions of Law pursuant to Rule 296 and a Notice of Past Due Findings of Fact and Conclusions of Law pursuant to Rule 297 of the Texas Rules of Civil Procedure. // She did not, however, request the specific findings available under section 14.057 of the Texas Family Code. // No findings of fact or conclusions of law were made by the trial court, and Walters timely perfected this appeal.

In points one through seven Walters contends that the court erred in holding her to the burden of proof provided in section 14.08(c)(2) of the Family Code, granting Taylor's motion for judgment, failing to find a material and substantial change in circumstances, and denying her motion to modify. Section 14.08(c)(2) of the Texas Family Code provides:

(c) After a hearing, the court may modify an order or portion of a decree that:

. . . .

(2) provides for the support of a child if the circumstances of the child or a person affected by the order or portion of the decree to be modified have materially and substantially changed since the date of its rendition, except that a support order may be modified only as to obligations accruing after the earlier of the date of service of citation or an appearance on the motion to modify . . . .

(Emphasis added). //

Walters argues that because the divorce decree did not "provide[] for the support of a child," her motion to modify required the court to make an initial determination of child support. We disagree for two reasons. First, the divorce decree expressly provides for the support of the children. In the original proceeding the court found that the agreement of the parties, containing provisions for support of the children, was in the best interest of the children and ordered that no child support be paid by either party. Second, Walters pleading supports a modification only on the basis of a material and substantial change of circumstances. As a result, the trial court properly applied section 14.08(c)(2) to Walters' motion to modify.

In determining whether a modification in child support payments is appropriate, the trial court should examine the circumstances of the children and parents at the time the prior decree was rendered in relation to the circumstances existing at the time the prior order is sought to be modified. // Walters called three witnesses and introduced copies of Taylor's 1989 and 1990 tax returns.

Walters first witness was Marc L. Irvin, a trust officer in the Personal Trust Administration Division of Texas Commerce Bank. On direct examination Irvin testified only that he administered the testamentary trust of James Baldwin, Walters' father, and that Walters' mother, Margie Carpenter, was the trustee. On cross-examination, Irvin testified that he routinely makes distributions from the trust of $4000 per month to Walters. At the direction of the trustee, Irvin occasionally made additional distributions of trust assets to Walters. Without the trust records he was unable to accurately estimate the total amount of additional disbursements. According to Irvin, however, Walters very well could have received in excess of $120,000 from the trust during the past year.

Walters then called Taylor as a witness. He testified that, in addition to the child support provisions contained in the divorce decree, the children continued to live in the home in which he retained an interest and he provided health insurance coverage for the children. Taylor worked for Zerod Company Realtors at the time of the divorce and earned approximately $22,500 in 1984. He worked for Pioneer Plastics from March 26, 1987, until October 8, 1990. His 1989 income tax return reflected an adjusted gross income of $31,268. Between October 1990 and October 1991 he worked briefly in California. His 1990 income tax return reflected an adjusted gross income of $26,142. According to Taylor, at the time of the hearing he was training as a Farmers Insurance agent, and his income since October 18 had been zero.

Of the four children, only two were under the age of eighteen at the time of the hearing. All four children had attended a private elementary and secondary school, and one was now attending Southern Methodist University. Walters testified that in 1984 the total cost for enrolling four children at St. John's was approximately $15,000. Tuition for the two children enrolled in 1991 was approximately $13,000. According to Walters, at the time of the divorce she received a "small amount from the antique furnishings" that she was selling with her sister, but was not earning any income at the time of the hearing. She was assisting her current husband in his work and was receiving no salary.

Although the trial judge had repeatedly admonished Walters' counsel that he had heard no evidence of a material and substantial change of circumstances, Walters rested at the conclusion of her testimony. Because there is no evidence that the circumstances of the children or a person affected by the divorce decree had materially and substantially changed since the date of the divorce, we overrule points one through seven.

In points eight and nine Walters contends that the court erred in failing to make findings of fact and conclusions of law pursuant to section 14.057 of the Family Code and Rules 296 and 297 of the Rules of Civil Procedure. Walters, however, failed to request the findings specified by section 14.057 of the Family Code. Furthermore, when a trial court grants a motion for judgment in a non-jury trial after the plaintiff rests, and there is no evidence to support an element of the plaintiff's case, the court is not authorized to make findings of fact. // Indeed, with no evidence of a material or substantial change in the record, the only finding or conclusion the court could have made is that the Walters' motion was entirely without merit. This the court did in the written order denying the motion to modify. We overrule points of error eight and nine.

We affirm the order of the trial court denying Walters' motion to modify. Finally, Taylor requests damages for delay as authorized by Rule 84 of the Rules of Appellate Procedure. Because Walters has taken this appeal for delay and without sufficient cause, we award Taylor $1166, which is four times the total taxable costs, as damages against Walters.

BOBBY L. CUMMINGS

Justice

Before Justice Cummings and

Justice Vance

(Chief Justice Thomas not participating)

Affirmed

Opinion delivered and filed

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