Dale Louis Meinardus v. Cheryl Lynn Schmidt

cv6-115.meinardus.draft TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-96-00115-CV Dale Louis Meinardus, Appellant v. Cheryl Lynn Schmidt, Appellee FROM THE DISTRICT COURT OF FAYETTE COUNTY, 155TH JUDICIAL DISTRICT NO. 94V-137, HONORABLE DAN R. BECK, JUDGE PRESIDING PER CURIAM This is an appeal from an order modifying a child conservatorship, possession, and support order. By seven points of error, Dale Meinardus complains about the trial court's modification of child support. We will affirm the trial court's order. BACKGROUND Dale and Cheryl were divorced in October 1994 and were named joint managing conservators of their teenage daughter, teenage son, and young son. Pursuant to the custody portion of the divorce decree, the three children were to live with Cheryl. Dale was ordered to pay child support of approximately 30% of his net resources, in accordance with the statutory child support guidelines, and was awarded specified periods of possession. In April 1995, the teenage son went to live with Dale. In May 1995, Dale filed a motion to modify the conservatorship, possession, and support order. The parties agreed that their young son and teenage daughter would continue to reside with Cheryl while their teenage son would live with Dale. After waiving a jury, the only issue before the trial court was the amount of child support, if any, each party would pay. The trial court entered findings of fact and conclusions of law. The trial court found that both parties were almost equally financially able to contribute to the support of their children. The trial court found that Dale had no child care expenses for the teenage son living with him because Cheryl's parents provided many of these services. Additionally, the trial court determined that the average expenses for the teenage daughter living with Cheryl were much higher than the average expenses for the two boys. Regarding child support, the trial court found that applying the statutory child support guidelines would cause a harsh and inequitable result. The trial court ordered that it was in the best interest of the children for each parent to support one child living with them and for Dale to pay support in the amount of $468.68 to Cheryl for one child as long as she had two children residing with her or until certain conditions were met. Further, the trial court ordered that when each party had only one child residing with them neither party was to pay support to the other. Finally, the trial court ordered that if Cheryl had only one child living with her and Dale had none of the three children living with him then Dale was to pay to Cheryl $468.68 monthly as child support until certain conditions were met. On appeal, Dale complains about several aspects of the child support modification. He contends that the trial court erroneously failed to follow the statutory child support guidelines and entered an order that was not in the children's best interest. Additionally, Dale complains that the trial court made erroneous findings of fact and conclusions of law that are not supported by the evidence. Finally, he complains that the trial court erred by refusing to file amended findings of fact and conclusions of law that he properly requested. REQUEST FOR ADDITIONAL FINDINGS By point of error seven, Dale contends that the trial court erred by failing to make amended findings of fact and conclusions of law in accordance with his request. Texas Rule of Civil Procedure 298 requires additional findings of fact and conclusions of law only if they relate to ultimate or controlling issues. See Rafferty v. Finstad, 903 S.W.2d 374, 376 (Tex. App.--Houston [1st Dist.] 1995, writ denied) (citing Associated Tel. Directory Publishers v. Five D's Publishing Co., 849 S.W.2d 894, 901 (Tex. App.--Austin 1993, no writ)). The test for harm is whether the circumstances of the particular case would require an appellant to guess at the reasons for the trial court's decision. Goggins v. Leo, 849 S.W.2d 373, 379 (Tex. App.--Houston [14th Dist.] 1993, no writ). The trial court is not required to make findings and conclusions that relate solely to evidentiary matters, or that are contrary to other previous findings. Rafferty, 903 S.W.2d at 376 (citing Simmons v. Compania Financiera Libano, S.A., 830 S.W.2d 789, 791-92 (Tex. App.--Houston [1st Dist.] 1992, writ denied)). The additional findings Dale requested were either duplicative or contrary to the findings the trial court had already made. The additional findings do not address any issue necessary for the resolution of this cause. The record affirmatively shows that Dale suffered no harm by the court's refusal to enter additional findings of fact and conclusions of law. See Cherne Indus. Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989). We overrule Dale's seventh point of error. EVIDENTIARY FINDINGS By points of error five and six, Dale complains that the following findings by the trial court were not supported by any evidence, or were supported by insufficient evidence: (1) the average expenses for the teenage daughter were higher than the average for the two sons, and (2) the teenage son living with Dale spends a great deal of time and takes many of his meals with Cheryl's parents and that Dale has no child care expenses because Cheryl's parents provide such services. Because this Court applies an abuse of discretion standard when reviewing a child support order, Dale's legal and factual sufficiency points of error are not independent grounds of error but are incorporated into a determination of whether the trial court abused its discretion when determining the child support ordered. Thomas v. Thomas, 895 S.W.2d 895, 896 (Tex. App.--Waco 1995, writ denied) (citing In re Pecht, 874 S.W.2d 797, 800 (Tex. App.--Texarkana 1994, no writ); Mai v. Mai, 853 S.W.2d 615, 618 (Tex. App.--Houston [1st Dist.] 1993, no writ)). The same appellate standards are used to review the legal and factual sufficiency of a trial court's findings of fact as are used to review a jury's findings. Anderson v. City of Seven Points, 806 S.W.2d 791, 794-95 (Tex. 1991). When reviewing a "no evidence claim" we consider only the evidence favorable to the trial court's findings and judgment, and disregard all evidence to the contrary. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). When reviewing a factual sufficiency, or "insufficient evidence" claim we consider, weigh, and examine all of the evidence that supports and that is contrary to the trial court's finding. Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We set aside the finding only if the evidence is so weak as to make the finding clearly wrong and manifestly unjust. Id. In a non-jury trial, the trial court, as fact finder, is the sole judge of the credibility of the witnesses and the weight to be accorded their testimony. Buffalo Sav. & Loan v. Trumix Concrete Co., 641 S.W.2d 650, 653 (Tex. App.--Corpus Christi 1982, no writ). It is within the trial court's province therefore, to consider all of the facts and surrounding circumstances in connection with the testimony of each witness and, as the fact finder, the trial court may accept or reject all or any portion or portions of any witness's testimony. Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.--Houston [1st Dist.] 1992, writ denied); Buffalo Sav. & Loan, 641 S.W.2d at 653. It is not within our province to substitute our judgment about the weight of the testimony for that of the trier of fact. Gomez v. Franco, 677 S.W.2d 231, 236 (Tex. App.--Corpus Christi 1984, no writ). Evidence was admitted regarding the day care expenses for each of the three children as well as the expenses the teenage daughter was incurring due to her many high school and church activities. Sufficient evidence exists to support the two fact findings challenged by Dale. We overrule Dale's points of error five and six. AMOUNT OF CHILD SUPPORT By points of error one through four, Dale contends that the trial court erred in determining the amount of child support he is to pay. Specifically, Dale contends that the trial court erred by not applying the statutory guidelines for child support or, alternatively, erred by not applying the statutory guidelines that are available when there are children in more than one household. Additionally, Dale complains that the child support order is not in the children's best interest. Dale contends that the trial court erred by not requiring Cheryl to pay him any child support for their teenage son living with him. The best interest of the children shall always be the trial court's primary consideration in determining questions of child support. Tex. Fam. Code Ann. §§ 154.122, 154.123 (West 1996); Hammond v. Hammond, 898 S.W.2d 406, 407 (Tex. App.--Fort Worth 1995, no writ). The trial court is free to exercise its best judgment in setting the terms and conditions of child support. White v. Adcock, 666 S.W.2d 222, 225 (Tex. App.--Houston [14th Dist.] 1984, no writ). This exercise of discretion allows the trial court to fashion an order that meets the needs of the children and fits the unique facts of each case. Id. at 225-26. Absent the complaining party showing that the child support order constituted a clear abuse of discretion, this Court may not disturb the trial court's judgment. Rodriguez v. Rodriguez, 860 S.W.2d 414, 415 (Tex. 1993) (citing Hoffman v. Hoffman, 805 S.W.2d 848, 851 (Tex. App.--Corpus Christi 1992, writ denied)); Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.--Houston [1st Dist.] 1993, writ denied). Reversal for an abuse of discretion is justified only when the trial court acted without reference to any guiding rules or principles and trial court's decision was arbitrary and unreasonable. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 233, 236 (Tex. 1991); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). In making this determination, the reviewing court must view the evidence in the light most favorable to the actions of the trial court and indulge every legal presumption in favor of the judgment. Holley, 864 S.W.2d at 706. An abuse of discretion does not exist as long as there is some evidence of a substantive and probative character to support the trial court's decision. Id. The Family Code permits a trial court to render a final determination of support outside the recommended guidelines if other relevant factors justify such a variance. Tex. Fam. Code Ann. § 154.123 (West 1996). In any suit affecting the parent-child relationship in which the amount of child support ordered by the court varies from the amount computed by applying the statutory percentage guidelines as provided in section 154.125 of the Texas Family Code, the court shall find that the application of the child support guidelines would be unjust or inappropriate and shall make several specific findings. See Tex. Fam. Code Ann. § 154.123 (West 1996). The trial court made the findings of fact and conclusions of law necessary as a basis for varying from the statutory child support guidelines. See Tex. Fam. Code Ann. § 154.123 (West 1996). The trial court found that, by applying the statutory guidelines, Dale would pay a net amount of $38.31 to Cheryl for their teenage daughter's support. The trial court concluded that applying the statutory child support guidelines in this cause would cause harsh and inequitable results that would not be in the children's best interest. Considering the evidence presented in light of the trial court's findings we cannot say that the trial court abused its discretion in this cause. We overrule Dale's points of error one through four. CONCLUSION We affirm the trial-court order. Before Chief Justice Carroll, Justices Aboussie and Kidd Affirmed Filed: June 5, 1996 Do Not Publish