In the Matter of the Marriage of Kelly Dyan Wilson and Tracy Brent Wilson, and in the Interest of C.B.W., a Child--Appeal from 378th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-07-00159-CV

In the Matter of the Marriage of Kelly Dyan

Wilson and Tracy Brent Wilson, and

in the Interest of C.B.W., a Child

From the 378th District Court

Ellis County, Texas

Trial Court No. 72007-D

MEMORANDUM Opinion

Tracy Brent Wilson brings this appeal from the divorce decree dissolving his marriage to Kelly Dyan Wilson. Tracy contends in three issues that: (1) the court abused its discretion by denying his motion to disqualify Kelly s attorney because the attorney had represented Tracy in prior legal proceedings; (2) the court erred by failing to make timely findings of fact and conclusions of law; and (3) the court abused its discretion by setting child support at $450 per month. We will affirm.

Motion to Disqualify

Tracy contends in his first issue that the court abused its discretion by denying his motion to disqualify Kelly s attorney Michael Dickey because Dickey had previously represented Tracy in a divorce proceeding and a separate paternity proceeding.

Tracy argues that Rules of Disciplinary Procedure 1.05 and 1.09 apply and that Dickey should have been disqualified because he used confidential information obtained during the prior representation to Tracy s disadvantage in the present suit, particularly on the issue of [Tracy s] alleged underemployment, which Dickey knew, or should have known, was not true by virtue of his prior representation of [Tracy].

Rule 1.05(b) provides in pertinent part that a lawyer shall not knowingly:

use confidential information of a client to the disadvantage of the client unless the client consents after consultation; or

use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.

Tex. Disciplinary R. Prof l Conduct 1.05(b)(2), (3), reprinted in Tex. Gov t Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, 9).

Rule 1.09(a) provides in pertinent part that a lawyer who personally has formerly represented a client in a matter shall not thereafter represent another person in a matter adverse to the former client:

if the representation in reasonable probability will involve a violation of Rule 1.05; or

if it is the same or a substantially related matter.

Id.1.09(a)(2), (3).

Disqualification is a severe remedy. In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding) (per curiam) (quoting Spears v. Fourth Ct. of Apps., 797 S.W.2d 654, 656 (Tex. 1990) (orig. proceeding)); In re Bivins, 162 S.W.3d 415, 418 (Tex. App. Waco 2005, orig. proceeding) (per curiam). Thus, a trial court which considers a motion to disqualify must strictly adhere to an exacting standard to discourage a party from using the motion as a dilatory trial tactic. Id. We review the court s ruling under an abuse-of-discretion standard. Allen v. United of Omaha Life Ins. Co., 236 S.W.3d 315, 327 (Tex. App. Fort Worth 2007, pet. denied); Cimarron Agric., Ltd. v. Guitar Holding Co., 209 S.W.3d 197, 200 (Tex. App. El Paso 2006, no pet.).

The severity of the remedy requested requires the movant to establish a preponderance of the facts indicating a substantial relation between the two representations. The moving party must prove the existence of a prior attorney-client relationship in which the factual matters involved were so related to the facts in the pending litigation that it creates a genuine threat that confidences revealed to his former counsel will be divulged to his present adversary. Sustaining this burden requires evidence of specific similarities capable of being recited in the disqualification order.

NCNB Tex. Nat l Bank v. Coker, 765 S.W.2d 398, 400 (Tex. 1989) (orig. proceeding); accord In re Chonody, 49 S.W.3d 376, 379-80 (Tex. App. Fort Worth 2000, orig. proceeding); In re Cap Rock Elec. Coop., 35 S.W.3d 222, 230-31 (Tex. App. Texarkana 2000, orig. proceeding); Walton v. Canon, Short & Gaston, 23 S.W.3d 143, 151 (Tex. App. El Paso 2000, no pet.).

In a pretrial hearing in which Tracy represented himself, he objected that Dickey should not be permitted to represent Kelly because Dickey had previously represented Tracy in a divorce proceeding and a paternity suit, neither of which involved Kelly. The court expressed reluctance to disqualify Dickey without some affirmative evidence that he possessed information which would adversely affect Tracy in the present case.

On the day of trial, Tracy s attorney made an oral[1] motion to disqualify Dickey. As Tracy presented his arguments to the court in support of the motion, he complained that Dickey was now adverse to him. Dickey responded by explaining that he had represented Tracy in a 1994 divorce proceeding and a 2000 paternity suit, neither of which involved Kelly. The court denied the motion.

Tracy failed to meet the exacting standard required for disqualification of opposing counsel. See Nitla, 92 S.W.3d at 422; Bivins, 162 S.W.3d at 418. In particular, he failed to offer evidence of specific similarities between the facts involved in the former suits and the facts of the present suit. See NCNB Tex. Nat l Bank, 765 S.W.2d at 400; Cap Rock Elec. Coop., 35 S.W.3d at 230; see also Chonody, 49 S.W.3d at 379-80; Walton, 23 S.W.3d at 151. Although Dickey presumably gained information about Tracy s employment history in these prior proceedings, the evidence offered at trial on this issue would have been acquired via normal discovery regardless of whether Dickey had previously represented him. See, e.g., Fanning v. Fanning, 841 S.W.2d 949, 950-51 (Tex. App. Waco 1992, no writ).

Accordingly, we cannot say that the court abused its discretion by denying Tracy s motion to disqualify Dickey. Tracy s first issue is overruled.

Untimely Findings

Tracy contends in his second issue that the court erred by failing to make timely findings of fact and conclusions of law.[2]

At the conclusion of the bench trial, the court asked the parties to put their final arguments in writing by clarifying their respective positions on property division, child support, and periods of possession. Because Kelly asked that child support be awarded based on Tracy s earning ability as opposed to his actual income, Tracy responded by asking among other things that the trial court make written findings of fact as required by section 154.130 of the Family Code. See Tex. Fam. Code Ann. 154.130 (Vernon Supp. 2007). The court did not make such findings when the court signed the judgment on January 18, and Tracy brought this failure to the court s attention in his motion for new trial.[3] The court entered written findings of fact and conclusions of law on March 28. Tracy s motion for new trial was overruled by operation of law, and he filed his notice of appeal on April 17.

[T]he rules of procedure do not expressly prohibit a court from issuing belated findings. If an appellant can show harm from untimely findings, the appeal may be abated so the appellant can request amended or additional findings. In re A.C.S., 157 S.W.3d 9, 14-15 (Tex. App. Waco 2004, no pet.) (citations omitted); Robles v. Robles, 965 S.W.2d 605, 610 (Tex. App. Houston [1st Dist.] 1998, pet. denied). The requisite harm occurs if, because of the untimely findings: (1) the appellant is unable to request additional findings; or (2) the appellant is unable to properly present his appeal. In re E.A.C., 162 S.W.3d 438, 443 (Tex. App. Dallas 2005, no pet.); Robles, 965 S.W.2d at 610.

Here, Tracy does not contend that he has been harmed by the delay in the making and filing of the findings of fact and conclusions of law. Rather, he requests that the judgment be reversed and remanded so that Appellant may properly challenge the belated findings and conclusions, particularly with respect to the underemployment issue relating to child support which varies from the guidelines.

The trial court s findings of fact and conclusions of law were filed twenty days before Tracy filed his notice of appeal. Tracy s third issue challenges the evidentiary support for the court s finding that he is intentionally underemployed, even though he contends in his second issue that a remand is necessary so he may properly challenge this finding.

Accordingly, we hold that Tracy was not harmed by the trial court s untimely findings of fact and conclusions of law. Tracy s second issue is overruled.

Child Support

Tracy contends in his third issue that the court abused its discretion by setting child support at $450 per month because the evidence is insufficient to support the court s finding that he is intentionally underemployed and because the court failed to make the findings required under section 154.130 when a court departs from the child support guidelines.

We review child support orders under an abuse-of-discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); In re J.C.K., 143 S.W.3d 131, 134 (Tex. App. Waco 2004, no pet.). We do not conduct an independent review of findings of fact in a child support case under traditional legal and factual sufficiency standards. J.C.K., 143 S.W.3d at 135; London v. London, 94 S.W.3d 139, 143-44 (Tex. App. Houston [14th Dist.] 2002, no pet.). Rather, legal and factual sufficiency are factors which can be considered in determining whether an abuse of discretion has occurred. J.C.K., 143 S.W.3d at 135; London, 94 S.W.3d at 143-44.

In re J.D.M., 221 S.W.3d 740, 742 (Tex. App. Waco 2007, no pet.).

Under the Family Code, a child support award is generally based on the net monthly resources of the obligor. Tex. Fam. Code Ann. 154.125-.126 (Vernon 2002). Section 154.066 permits a trial court to apply the child support guidelines to the earning potential of the obligor if the court determines that the obligor is intentionally unemployed or underemployed. Id. 154.066 (Vernon 2002).

A child support order complying with the percentage guidelines provided by section 154.125 is presumed to be in the best interest of the child, but [a] court may determine that the application of the guidelines would be unjust or inappropriate under the circumstances. Id. 154.122 (Vernon 2002). Section 154.123(b)(5) provides that, in deciding whether to apply the guidelines, a court shall consider evidence of all relevant factors, including but not limited to:

the amount of the obligee s net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee.

Id. 154.123(b)(5) (Vernon 2002). If a court chooses to depart from the guidelines, section 154.130 requires the court to make specific findings stating, among other things, (1) whether the application of the guidelines would be unjust or inappropriate and (2) the specific reasons that the amount of child support per month ordered by the court varies from the [guidelines]. Id. 154.130(b)(5) (Vernon 2002).

Here, Kelly testified that Tracy had worked a couple of welding jobs during their marriage paying $15 and $16 per hour respectively. She offered documentary evidence to support this testimony. She testified that Tracy is currently self-employed. She is familiar with a back injury he suffered before their marriage but stated that Tracy is very capable of doing whatever he wants to do and does not have any physical limitation which would prevent him from hold[ing] a regular job. In Kelly s opinion, Tracy was intentionally underemployed for child support. Kelly also testified that the monthly health insurance premium for their son was $150 as of January 2007.

Tracy testified that he has three other children: a son who lives with him and two daughters for whom he owes monthly child support of $250. He currently operates a business which does fencing and remodeling work. He offered bank records reflecting net monthly income of approximately 25 cents between February and July 2006 and net monthly income of approximately $190 from July through September 2006. Tracy explained that he has a major bulge and a lacerated disc at vertebrae L4-L5, which he sustained at a previous job. The workers compensation carrier wanted him to have surgery, but he declined. He testified that his back hurts every day and prevents him from obtaining permanent employment. He sustained this injury more than ten years ago, although he did not provide a precise date, saying it was at least two years before he met Kelly, whom he married in February 1996.

Tracy s mother testified that [h]is back gives him tremendous problems and medicine doesn t work on Tracy like it does on other people. On cross-examination, she said that Tracy was helping remodel her home. He put up a ten-foot fence, which involved some pretty heavy posts, although he had four guys helping him put up the posts.

In Kelly s post-trial letter brief, she asked the trial court to calculate child support predicated on [Tracy s] ability to earn $16.00 hr. in addition to $150 per month for their son s monthly health insurance premium. Tracy responded in his letter brief by stating that no departure from the guidelines is warranted because Kelly failed to prove that he was intentionally underemployed. He asked the court instead to base any child support payment on his current income.

To support a finding of intentional underemployment or unemployment, there must be evidence the obligor reduced his or her income with the intention of decreasing the child support payment. Garner v. Garner, 200 S.W.3d 303, 306-07 (Tex. App. Dallas 2006, no pet.); In re E.A.S., 123 S.W.3d 565, 570 (Tex. App. El Paso 2003, pet. denied). This intent may be inferred from such circumstances as the parent s education, economic adversities, business reversals, business background, and earning potential. Id.

Kelly offered evidence that Tracy had previously held positions paying $15 or $16 per hour. Tracy countered that these were only temporary positions and that his back injury prevents him from obtaining comparable employment. Kelly, however, testified that Tracy s back condition would not prevent him from obtaining comparable employment and opined that Tracy is intentionally underemployed for child support. Tracy s mother testified that he suffers from severe back pain but also described some fence work involving heavy lifting which he did on her property.

The trial court was free to disbelieve Tracy s testimony that his back injury prevented him from obtaining employment doing work comparable to the jobs he had previously held. From the evidence, we cannot say that the court abused its discretion by finding that Tracy was intentionally underemployed. See Garner, 200 S.W.3d at 308; In re P.J.H., 25 S.W.3d 402, 406 (Tex. App. Fort Worth 2000, no pet.).

The trial court stated in Finding of Fact No. 1 that Tracy s net monthly resources were $805.53.[4] The court explained that it also took into account Tracy s duty to support his other three children in calculating child support. See Tex. Fam. Code Ann. 154.128, 154.129 (Vernon 2002). The court stated that Tracy was qualified as a welder and had the capability of earning more than sixteen dollars an hour and it was basing Tracy s child support obligation on his earning potential. Id. 154.066. The court concluded with the following statement to explain its child support calculation:

Respondent was ordered to pay $300.00 per month predicated on Respondent s monthly net resource earning potential of $2,630.20. Respondent was ordered to pay Petitioner s medical insurance premiums on the child as additional child support in the amount of $150.00.

It is not entirely clear how the court calculated Tracy s monthly net resource earning potential to be $2,630.20. According to our calculations, if Tracy s income was based on a wage of $16 per hour, his gross annual income would be $33,280. This would yield a monthly gross income of $2,773, which would result in monthly net income of about $2,284 according to the Attorney General s 2006 Tax Chart for calculating net monthly income.[5] Then, applying the 14.75 percent guideline under the alternative method for calculating support when the obligor has a duty of support for three children not before the court, the resulting monthly child support obligation would be $337. See Tex. Fam. Code Ann. 154.129.

The evidence supports findings that Tracy has earning potential of $16 per hour and that he is intentionally underemployed. Under the guidelines, such findings would result in a monthly child support obligation of $337 per month. Therefore, we cannot say that the court abused its discretion by ordering him to pay $300 in monthly child support.

The award of an additional $150 per month for health insurance is for medical support and is supported by Kelly s testimony. Id. 154.183 (Vernon 2002). The court did not abuse its discretion by ordering Tracy to pay this additional amount as medical support for the child.

Finally, Tracy argues that the court departed from the percentage guidelines when it decided to award child support based on his earning potential rather than his actual earnings. He contends that the court erred by failing to make the findings required when a court departs from the applicable guidelines. We disagree with the underlying premise.

Section 154.066 expressly authorizes a court to apply the percentage guidelines for calculating child support to the obligor s earning potential (rather than the obligor s actual income) if the court finds that obligor is intentionally unemployed or underemployed. Id. 154.066. Here, the court did not vary from the percentage guidelines but rather applied the guidelines to Tracy s earning potential based on its finding that he was intentionally underemployed.

Accordingly, the court did not abuse its discretion by setting child support (and medical support) at $450 per month. Tracy s third issue is overruled.

We affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed June 25, 2008

[CV06]

[1] According to the district clerk, there is no written motion to disqualify on file in this case.

[2] The specific language of Tracy s second issue is, The evidence is insufficient to support the trial court s finding that Appellant was underemployed in order to avoid child support. However, the substance of the argument presented in connection with this complaint is a challenge to the timeliness of the court s findings.

[3] Although the motion for new trial is file-stamped February 27, we assume without deciding that it is timely under Rule of Civil Procedure 5 because it was filed by the district clerk within 10 days after it was due. See Tex. R. Civ. P. 5.

[4] This finding is based on presumed minimum wage income under section 154.068 of the Family Code and the Attorney General s 2006 Tax Chart for calculating net monthly income.

[5] According to the 2006 Tax Chart, the monthly gross income would be reduced by 6.2% for OASDI taxes ($171.93), 1.45% for Medicare taxes ($40.21), and approximately 10.0% for federal income taxes ($277.33).