Watler, Mark C. v. Diane Watler

Opinion issued March 13, 2003 In The Court of Appeals For The First District of Texas NO. 01-01-01038-CV MARK C. WATLER, Appellant V. DIANE K. WATLER, Appellee On Appeal from the 257th District Court Harris County, Texas Trial Court Cause No. 1999-33225 MEMORANDUM OPINION Mark C. Watler, appellant, filed a petition to modify parent-child relationship, seeking to reduce his child support obligations. The trial court denied appellant’s motion and ordered him to pay $16,202.50 in reasonable attorneys’ fees to Diane K. Watler, appellee. In three issues, appellant argues that (1) the trial court abused its discretion in refusing to order a modification of child support obligations; (2) the trial court abused its discretion in awarding excessive attorneys’ fees to appellee; and (3) the trial court judge should have been recused. We modify the trial court’s decree and, as modified, we affirm. Facts Appellant and appellee divorced on February 7, 2000. The terms of the divorce and child support obligations were agreed to by both parties, and were included in the agreed final decree of divorce. The decree provided that appellant would pay $1,200 dollars per month in child support, would provide health insurance coverage costs for the child, and would pay sixty percent of any uninsured medical expenses for the child. Appellant’s financial obligations were to last until the child turned 18, or, upon graduation from high school, if the child was enrolled in a secondary education school when he became 18. On August 29, 2000, approximately six months after the decree of divorce, appellant filed a petition to modify parent-child relationship, alleging that the circumstances of the child or appellant had materially and substantially changed since the time that the divorce decree was rendered, the support payments previously ordered were not in substantial conformity with the statutory guidelines, and that a decrease in the amount of child support payments would be in the best interest of the child. Modification of Child Support Obligations In his first issue, appellant argues that the trial court abused its discretion in refusing to order a modification of the amount to be paid in child support. A trial court’s ruling on child support will not be reversed on appeal unless there is a clear abuse of discretion. McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The test is whether the trial court acted arbitrarily, unreasonably, or without reference to guiding rules or principles. Id. The reviewing court must review the evidence in the light most favorable to the trial court’s actions and indulge every legal presumption in favor of the order. Id. Legal and factual insufficiency of the evidence will not be considered independent grounds of error, but will be considered in determining whether the trial court abused its discretion. Wood v. O’Donnell, 894 S.W.2d 555, 556 (Tex. App.—Fort Worth 1995, no writ). Appellant argues that he proved to the trial court that his income had been substantially reduced since the time of his divorce. During the bench trial, appellant, an attorney, testified that he had been expecting to make more money from a tortious interference case that he had been working on, and also expected to make money from two cases whose representation he had undertaken, but that neither expectation materialized. Appellant presented evidence that his monthly gross income from February 2000 through June 2001 was $5850.32 per month, and that his net monthly resources for that period, calculated in conformity with section 154.123 of the Family Code, was $3,893.67. Appellant testified that, after applying the statutory guidelines to the amount of net monthly resources for that period, the guidelines yielded a figure of $748.93 per month as the presumptive amount of child support before other downward adjustments provided by the family code were figured into the calculation. Appellant also testified, as evidence of a substantial change in the circumstances of the child, that a trust that had been set up for the child had been substantially reduced from $39,000 at the time of the divorce, to $16,500 in the fiscal quarter before trial. Trial Court’s Consideration of Trial Evidence Appellant first contends that the trial court did not consider the trial evidence, but instead decided the matter on the pleadings alone. Appellant refers us to the order denying relief, which states the following: The Court finds that neither the petition filed on August 29, 2000, nor any attachments provide the Court with adequate facts to support (1) an allegation that the circumstances have materially and substantially changed since the rendition of the Divorce Decree and the support payments should be decreased until the child is eighteen years of age; (2) an allegation that the support payments are not in substantial conformity with the guidelines in Chapter 154 of the Texas Family Code, and the requested decrease would be in the best interest of the child. While that portion of the order does appear to address only appellant’s petition and any attachments, the written findings of fact and conclusions of law filed by the trial court indicate that it did not ignore the evidence presented at trial. Findings of fact 10, 11, and 12 all state the “evidence” was insufficient to support appellant’s allegations. Because appellant did not attach any evidence to his petition to modify, the “evidence” referred to in the findings of fact and conclusions of law could only have been that evidence presented at trial. In the absence of any other indications that the trial court ignored the trial evidence, we will presume the regularity of the proceeding below. See generally In re B.D., 16 S.W.3d 77, 80 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (using the presumption of regularity to support a recitation in the judgment). Accordingly, we will presume that the trial court did not ignore the evidence presented at trial. Material and Substantial Change in Circumstances We now consider, in light of the evidence presented at trial, whether the trial court abused its discretion in not modifying the amount of child support. The burden was on appellant at the trial court to show that circumstances “materially and substantially changed since the date of the order’s rendition.” Tex. Fam. Code Ann. § 156.401(a)(1) (Vernon 2002). When reviewing whether the circumstances of a parent or child have materially and substantially changed, the reviewing court should look at the circumstances between the date of the original decree and the date of the motion to modify. See Starck v. Nelson, 878 S.W.2d 302, 307 (Tex. App.—Corpus Christi 1994, no writ). Short term slumps in parental income are not sufficient to support modification of a child support order. Watkins v. Austin, 590 S.W.2d 830, 832 (Tex. Civ. App.—Dallas 1979, no writ). A court may take a parent’s earning potential into consideration when determining an issue of child support. In re G.J.S., 940 S.W.2d 289, 293 (Tex. App.—San Antonio 1997, no pet.). A trial court has broad discretion in setting the amount of child support, and a child support obligation that is not in compliance with the guidelines does not, by itself, constitute a material and substantial change in circumstances. Cole v. Cole, 882 S.W.2d 90, 92 (Tex. App.—Houston [14th Dist.] 1994, writ denied). After reviewing the record, we cannot say that the trial court abused its discretion when it rejected appellant’s allegations that his own financial circumstances had materially and substantially changed. Appellant filed the petition to modify less than seven months after the original agreed divorce decree. The trial court could have reasonably found that appellant’s financial condition was only a temporary slump. See Watkins, 590 S.W.2d at 832. Further, the evidence showed that appellant was a trial lawyer who had been in practice for 22 years, and had become board certified since the time of divorce. The trial court could have reasonably found that appellant’s financial conditions had not materially and substantially changed because of appellant’s high earning potential. See In re G.J.S., 940 S.W.2d at 293. Likewise, appellant’s allegations that his child support payments are approximately 60% above the statutory guidelines after appellant’s alleged reduced income is taken into account do not necessarily indicate that a material and substantial change in appellant’s financial condition has occurred. See Cole, 882 S.W.2d at 92. Accordingly, we hold that the trial court did not abuse its discretion in determining that appellant had not proved a material and substantial change in his financial circumstances that warranted a reduction in child support payments. Appellant also contends that the circumstances of the child have materially and substantially changed. During the trial, appellant testified that the trust fund set up for the child had been substantially reduced. Appellant testified during the trial that, as part of the modification, he wanted each parent to regularly pay a sum of money into the trust so that it would not be depleted. We cannot say that the trial court acted without reference to the law when it declined to modify either the amount of appellant’s child support obligations, or the method of payment, based upon the change in value of the child’s trust. The testimony at trial indicated that the money in the trust was being used for education purposes, and the trial court could have determined the reduction in the trust’s value was forseeable at the time of the agreed divorce decree, and, thus, was not a material and substantial change in circumstance. Accordingly, we hold that the trial court did not err in declining to modify either the amount of child support to be paid, or how the support was to be paid. We overrule issue one. Attorney’s Fees In his second issue, appellant argues that the trial court abused its discretion in awarding excessive attorney’s fees in the amount of $16,202.50 to appellee, and in setting the post-judgment interest rate at 12% per annum. The Family Code allows the trial court to award attorney’s fees in suits affecting the parent-child relationship. Tex. Fam. Code Ann. § 106.002 (Vernon 2002). A trial court’s award of attorney’s fees is reviewed for an abuse of discretion. Tropoli v. Markantonis, 740 S.W.2d 563, 565 (Tex. App.—Houston [1st Dist.] 1987, no writ). To support of a request for reasonable attorney’s fees, testimony should be given regarding the hours spent on the case, the nature of preparation, complexity of the case, experience of the attorney, and the prevailing hourly rates. Goudeau v. Marquez, 830 S.W.2d 681, 683 (Tex. App.—Houston [1st Dist.] 1992, no writ). Sworn testimony from an attorney representing a party in a suit, concerning an award of attorney’s fees, is considered expert testimony. Nguyen Ngoc Giao v. Smith & Lamm, P.C., 714 S.W.2d 144, 148 (Tex. App.—Houston [1st Dist.] 1986, no writ). Appellant argues that appellee did not adequately prove the amount of services rendered or the value of those services. Appellant specifically contends that the invoices and the contract between appellee and her attorneys were heavily redacted, so as to provide minimal information about the services rendered, and the rate of $450.00 per hour that was charged by one of appellee’s attorneys was unreasonably high. Appellee’s attorney, J. Lindsey Short, testified that he was an attorney who was licensed to practice law in the state of Texas, and that he was familiar with the people who had worked on appellee’s case and the entries they had made when they documented how many hours they had worked and what services they had performed. Short further testified as to the rates charged by the different attorneys on the case, and testified that the fees were reasonable, necessary, usual, and customary. The court was provided with invoices from appellee’s firm, and the rates charged by the attorneys at the firm. Short further testified as to extra costs that were incurred because of appellant’s attempt to have the trial court judge recused. We also note that while the rate chart indicated that Short’s rate was $450.00 per hour, the invoices showed that two other attorneys who substantially participated in the case were billed at rates less than $200.00 per hour. After reviewing the evidence at trial, we hold that the trial court did not abuse its discretion in awarding $16,202.50 in attorney’s fees. The trial court could have believed Short’s testimony as to the reasonableness of the attorney’s fees, and we will not disturb the trial court’s ruling. With regard to the trial court’s order that set the post-judgment interest rate at 12% per annum, appellee concedes that the proper post-judgment interest rate should be 10% per annum. See Tex. Fin. Code Ann. § 304.003(c)(2) (Vernon Supp. 2003). Accordingly, the decree will be modified to set the post-judgment interest rate at 10% per annum. We overrule that portion of issue two regarding the recovery of attorney’s fees, and we sustain that portion of issue two regarding the post-judgment interest rate. Motion to Recuse In his third issue, appellant argues that the trial judge should have been recused because of her prejudice against appellant. The Texas Rules of Civil Procedure provide in relevant part that: A judge shall recuse himself in any proceeding in which: (a) his impartiality might be questioned; (b) he has a personal bias or prejudice concerning the subject matter or a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; . . . Tex. R. Civ. P. 18b(2). When a motion to recuse is filed, the judge shall either recuse himself or request the presiding judge of the administrative judicial district to assign a judge to hear such motion. Tex. R. Civ. P. 18a(c). A judges’s ruling on a motion to recuse will be reviewed for an abuse of discretion. Hector v. Thaler, 927 S.W.2d 95, 99 (Tex. App.—Houston [1st Dist.] 1996, writ denied). A party complaining of impartiality or bias must show that the bias was “extrajudicial,” and not based on in-court rulings. Ludlow v. DeBerry, 959 S.W.2d 265, 270 (Tex. App.—Houston [14th Dist.] 1997, no pet.). Remarks from a trial court judge during a trial that are critical, disapproving, or even hostile to the parties, lawyers, or cases, do not support recusal unless they reveal “an opinion deriving from an extrajudicial source,” and they “reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” Ludlow, 959 S.W.2d at 271 (citing Liteky v. U.S., 510 U.S. 540, 554-56, 114 S.Ct. 1147, 1155-57). Appellant first contends that, in an effort to keep the case in her own court, the trial court judge denied the motion to recuse, and did not initially refer the matter to the presiding judge of the administrative district, thereby voiding every action taken after the unauthorized denial of the motion to recuse. Our review of the record does not indicate that the trial court judge attempted to rule on appellant’s motion to recuse. The order in question was titled “order denying recusal,” but the order stated only that the trial court judge “declines to recuse herself from the case.” The trial court judge took no action in the case from the time she signed the order declining to recuse herself to the time the administrative judge denied appellant’s motion to recuse. Further, the rules do not purport to prohibit an order that declines to recuse. Rule 18a(d) begins by stating that, “If the judge declines to recuse himself,” he must forward the motion to recuse to the presiding judge. In this case, the trial court judge did just that: she declined to recuse herself, and she forwarded the motion to recuse to the administrative judge. We hold that the trial court judge’s actions were not prohibited by the rules, and that she was able to properly proceed on the case after appellant’s motion to recuse was denied by the administrative judge. Appellant next contends that, Judge Underwood, the administrative judge who was assigned the motion to recuse, abused his discretion in failing to grant the motion. In his motion, appellant complained that, “the degree of hostility exhibited by the Judge to [appellant] in prior proceedings in this matter establishes a degree of personal bias or prejudice concerning [appellant] sufficient to require the Judge’s recusal . . . .” During the evidentiary hearing before Judge Underwood, appellant testified that the trial court judge had chastised him for attempting to obtain an ex parte temporary order against his wife, and that the trial court judge was irrational, hostile, arrogant, and surly. Appellant also testified that, during a hearing on an agreement regarding visitation arrangements, the trial court judge kept interrupting appellant’s attorney during the questioning of appellant, and made comments to the effect that she believed appellant had previously been in contempt of court. Appellant further testified that when he made a motion to seal documents, the trial court judge had again stated that she thought his conduct earlier in the case had been unacceptable, and made some comments that indicated that she would deny the motion to seal. In addition to providing testimony, appellant also provided Judge Underwood with a copy of his complaint to the Commission on Judicial Conduct. After reviewing the record, including appellant’s complaint to the Commission on Judicial Conduct, we hold that Judge Underwood did not abuse his discretion in determining that appellant had not shown a bias originating from extrajudicial course, or a degree of antagonism or favoritism that would have made fair judgment impossible. Judge Underwood was free to not believe the testimony of appellant. Hector, 927 S.W.2d at 99. Accordingly, we hold that Judge Underwood did not err in denying appellant’s motion to recuse. We overrule issue two. Conclusion We modify the trial court’s decree to reflect a post-judgment interest rate of 10% per annum and, as modified, we afifrm. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.