in the Interest of Donald Michael Ackel, II, Haley Denah Ackel, and Kye Taylor Ackel, Minor Children

NUMBER 13-98-560-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ DONALD ACKEL , Appellant, v. JEANNINE GOETZ , Appellee. ___________________________________________________________________ On appeal from the 28th District Court of Nueces County, Texas. ____________________________________________________________________ O P I N I O N Before Justices Dorsey, Chavez, and Rodriguez Opinion by Justice Rodriguez Appellant, Donald Ackel, brings this appeal contesting the modification of his child support obligation. Appellant contends the evidence is legally insufficient to support the modification, and prays for a reversal and remand for a determination of the appropriate child support. We reverse and remand. In 1994, appellant and appellee, Jeannine Goetz a/k/a Jeannine Ackel, were divorced in Louisiana. Following the divorce, appellant made child support payments of approximately $500 per month. When appellee and the children moved to Texas, appellant filed a suit affecting parent/child relationship in the 28th District Court in Nueces County, Texas, requesting, among other things, validation of the divorce judgment from Louisiana and modification of the child support payment. In November 1995, the district court validated and adopted the Louisiana judgment and orders. Further, in response to appellant's request for modification of his support payment, the district court signed a temporary order ordering appellee to apply for social security benefits for the minor children.(1) Appellee apparently complied with the order. It further appears from the record that appellant stopped making his direct support payment of $500 after the children began receiving their monthly social security benefits of approximately $700. In June 1997, appellee filed a motion to modify appellant's child support payment asserting that an increase in the payment would be in the best interest of the children and that the circumstances of the children had materially and substantially changed since the rendition of the order of divorce. Following a trial on the motion, appellant was ordered to pay child support in the amount of $1200 per month, with the payment offset by the children's monthly social security benefits of $708. Appellant therefore was required to actually pay $492 per month in child support. Appellant requested findings of fact and conclusions of law pursuant to section 154.130 of the family code. See Tex. Fam. Code Ann. § 154.130 (Vernon 1996). In response, the district court made numerous findings regarding appellant's lifestyle, ownership of assets, possession of large sums of cash and jewelry, and travel. The court also found, based on appellee's testimony, that the present needs of the children were at least $2598 per month. The court's conclusions of law included the following: (1) "[t]he evidence . . . and logical inferences drawn from said evidence, demonstrates . . . [appellant] has the ability to pay the . . . child support assessed against him directly, or in the alternative, [appellant] did not demonstrate that the . . . child support assessed directly against him, after off set . . . is beyond his ability to pay;" and (2) "[t]he amount of child support awarded . . . is in the best interest of the children, and is less than one hundred percent (100%) of the proven needs of the children." In the absence of a record, the trial court's findings are binding on the parties and are accepted as justified by the evidence. See Ybarra v. Newton, 714 S.W.2d 353, 355 (Tex. App.--Corpus Christi 1986, no writ) (citation omitted). However, when, as in this case, the reporter's record appears in the appellate record, findings of fact are not conclusive on appeal. See id. (citations omitted). Findings of fact are binding in the appellate court only if supported by evidence of probative force. See id. (citations omitted). By his first and second issues, appellant contends the child support order was an abuse of discretion, and that the evidence is legally insufficient to support the award. A court's child support order will not be disturbed on appeal unless the complaining party shows that the order constituted a clear abuse of the court's discretion. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); Panozzo v. Panozzo, 904 S.W.2d 780, 785 (Tex. App.--Corpus Christi 1995, no writ). The test for abuse of discretion is whether the court acted arbitrarily or unreasonably, without reference to any guiding rules and principles. See id. Errors premised on evidence insufficiency are not segregable from an abuse of discretion point of error. See Scott v. Younts, 926 S.W.2d 415, 420-21 (Tex. App.--Corpus Christi 1996, writ denied) (citations omitted). Whether there is any evidence to support the court's support order is a relevant consideration in determining if the district court abused its discretion. See id. at 421 (citation omitted). Various guidelines used in regulating the court's discretion appear in chapter 154 of the Texas Family Code. Section 154.121 of chapter 154 provides that "[t]he child support guidelines in [subchapter c] are intended to guide the court in determining an equitable amount of child support." Tex. Fam. Code § 154.121 (Vernon 1996). An amount of child support that complies with the child support guidelines, when the obligor's monthly net resources are $6000 or less, is reasonable and in the best interest of the child. See Tex. Fam. Code § 154.122 (Vernon 1996); Panozzo, 904 S.W.2d at 784. The percentage guideline for three children is thirty percent of the obligor's net resources. See Tex. Fam. Code § 154.125 (Vernon 1996). The family code provides that the court shall calculate net resources by considering all personal service income, interest, dividends, royalty income, self-employment income, net rental income, and "all other income actually being received." See Tex. Fam. Code § 154.062 (Vernon 1996). Appellant asserts that the only evidence introduced by appellee regarding appellant's income or earning capacity for the purpose of calculating child support and regarding the expenses of the appellee and the children was no more than surmise, speculation, and hypothetical conjecture. He contends that the evidence shows that his social security payment of $716 constitutes his sole income. At trial there was no evidence offered regarding appellant's actual income or net resources as defined by the code. There were references to appellant carrying around substantial amounts of money and paying legal fees of more than $25,000. However, the record is silent as to income actually received to provide appellant with these financial resources. We agree with appellant that the only evidence in the record establishing actual income is testimony that appellant receives $716 per month from the federal government in the form of social security benefits. However, other pertinent guidelines exist. The code also provides, "[i]f the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the earning potential of the obligor." Tex. Fam. Code § 154.066 (Vernon 1996). Further, additional relevant factors for the court to consider if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines, include: (1) the age and needs of the child; (2) the ability of the parents to contribute to the support of the child; (3) any financial resources available for the support of the child; (4) the amount of time of possession of and access to a child; (5) whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity; (6) positive or negative cash flow from any real and personal property and assets, including a business and vestments; and (7) any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents. See Tex. Fam. Code § 154.123 (Vernon 1996). Appellant argues that there was no evidence regarding his ability to be gainfully employed or that he was attempting to evade his support obligation by voluntarily remaining unemployed to support a variance from the guidelines. We agree. While the trial court may consider many factors in determining child support, and may determine the support payment based on earning potential rather than actual income because of intentional unemployment or underemployment, we conclude there was no such evidence upon which the district court could have based the $1200 child support payment, or even the $492 portion to be actually paid by appellant after the offset of social security benefits.(2) There are references in the court's record to appellant participating in legalized gambling, and being a licensed horse trainer and breeder; however, there is nothing in the record demonstrating appellant's earning potential as a horse trainer and breeder, or his earning potential in regard to his gambling pursuits. Further, we find nothing in the record to support the proposition that appellant was intentionally unemployed or underemployed. Finally, while appellee testified as to appellant's assets, the testimony reflected her knowledge of the assets at the time of the divorce, not at the time of trial wherein the court modified child support. In response, appellee argues that appellant's child support payment must fit the children's growing needs. Appellant contends the expenses of appellee and children introduced into evidence were no more than speculation, approximations, conjecture and "what ifs." A court may modify a child support order if the circumstances have materially and substantially changed since the date of the order's rendition. See Tex. Fam. Code Ann. § 156.401 (Vernon 1996). In determining whether a modification in child support payments, an increase in this case, is appropriate, the district court should examine the circumstances of the child and parents at the time the prior decree was rendered in relation to the circumstances existing at the time the modification is requested. See S.A.B.S. v. H.B., 767 S.W.2d 860, 861-62 (Tex. App.--Corpus Christi 1989, no writ) (citations omitted). While we acknowledge the children are older, we conclude there is no evidence of the circumstances at the time the prior order was rendered in relationship to the circumstances as they existed at the time of trial, in order for the district court to have appropriately determined whether a change in those circumstances had occurred.(3) Because there is no evidence of actual income other than social security benefits, no evidence to make a determination that appellant's actual income was significantly less than what he could earn because of intentional unemployment or underemployment, and no evidence to support a change in circumstances, we conclude the district court erred in setting child support at $1200 per month for appellant's three children. Issues one and two are sustained. In light of our ruling in connection with appellant's first and second issues on appeal, we need not consider his remaining issue. Tex. R. App. P. 47.1. Accordingly, we REVERSE and REMAND this case to the trial court for a new trial on the issue of monthly child support. NELDA V. RODRIGUEZ Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this 22nd day of June, 2000. 1. At age 63, appellant was eligible for retirement under the social security act; therefore, the minor children were also eligible for social security benefits. 2. For a child support award of $1200 per month, appellant would need to receive a gross income of $6000 per month and a net income of $4000 per month. For an award of approximately $492, the amount to be paid directly by appellant after the offset of social security benefits, appellant would need to receive a gross income of approximately $2050 per month and a net income of approximately $1680 per month. See Tex. Fam. Code § 154.061 (Vernon 1996). 3. We note that the trial exhibit referenced in the reporter's record was not before this Court for our review.