Brazell, Ronnie R. v. Brazell, Ida H.

NUMBER 13-00-067-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI RONNIE R. BRAZELL, Appellant, v. IDA H. BRAZELL, Appellee. On appeal from the 28th District Court of Nueces County, Texas. O P I N I O N Before Chief Justice Valdez and Justices Hinojosa and Rodriguez Opinion by Chief Justice Valdez Appellant Ronnie R. Brazell appeals a decision in the 28th District Court in Nueces County to raise the amount of child support he must pay to his ex-wife, Ida H. Brazell, appellee in this case. Appellant and his ex-wife were divorced on March 26, 1996. Appellant took custody of their older child, appellee the younger child. Appellant paid the expenses for the older child; appellee paid expenses for the younger child. They split the cost of the children's health insurance. On April 24, 1998, the trial court held a hearing dealing with visitation only, after appellee alleged that appellant violently and publicly demeaned their younger child. The trial court issued an order on July 20, 1998 changing visitation. The trial court also raised appellant's requirement for the payment of health insurance due to the fact that the older son had reached the age of the majority on June 18, 1998 -- after the hearing. Appellant was ordered to pay all of the health insurance. The trial court, on its own initiative, and without hearing any evidence, or giving any notice to the parties, stated in the order that there would be no changes to the payment of child support. On October 8, 1998, after the older son who lived with appellant was emancipated, the trial court heard a motion to modify child support. The trial court awarded a higher amount of child support to appellee, but provided no findings of fact or conclusions of law. Appellant appeals the trial court's decision to modify the amount of child support he is required to pay appellee. Appellant organizes his arguments into twelve issues. In his first issue, appellant argues that the trial court erred by not presenting findings of fact or conclusions of law. A party must request findings of fact and conclusions of law no later than ten days after the date of a hearing regarding modification of child support, or must orally make the request in open court during the hearing, unless the trial court's award of child support deviates from the amount computed under the percentage of income guidelines set out in the family code. Tex. Fam. Code Ann. § 154.130 (Vernon 1996).(1) Appellant made no oral request in open court during the hearing for findings of fact or conclusions of law, and his written request was made more than ten days after the date of the hearing. The trial court did not vary from the amount computed by applying the percentage guidelines. See Tex. Fam. Code Ann. § 154.129 (Vernon 1996). Any possible error is therefore not preserved for our review. Even if this issue were preserved for our review, any error is harmless. The test for harm when the trial court has filed no findings of fact or conclusions of law is whether the appellant will be forced to guess the reason or reasons the trial judge ruled against him. City of Los Fresnos v. Gonzalez, 830 S.W.2d 627, 629 (Tex. App.--Corpus Christi 1992, no pet.). It is clear from the record that the only dispositive conclusion the trial court made was that appellant had the earning capacity to pay the increased child support ordered. The facts underlying this conclusion are clearly set out in the record. We overrule appellant's first issue. In his second and third issues, appellant argues that the trial court erred by considering changes in circumstances that occurred prior to the date of the order that changed his visitation privileges. He bases this argument on the fact that the trial court stated in the order regarding visitation privileges that there were no changes in the amount of support he must pay, except that he must pay a greater amount of health insurance for his younger son. A court may not modify a child support order within three years of a prior order regarding child support or a prior modification of child support unless there has been a material or substantial change in circumstances since the time of the prior order. Tex. Fam. Code Ann. § 156.401(a) (Vernon Supp. 2001). In her first amended motion to modify, appellee requested that the trial court look both to the time the visitation order was entered and the time of the divorce. It was within the discretion of the trial court to hear evidence regarding changes in circumstances since the time of the divorce as well as changes in circumstances only since the time of the prior order, but the court could only have based its decision on the changes since the time of the prior order. See id.; See Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex. 1989) (admission of evidence within discretion of trial court). Changes since the prior order include: increased educational expenses, including prospective raises in the cost of private school tuition and the costs of school materials; and, present and future costs for supplies and travel for extracurricular activities, such as tennis, band, and school dances. These expenses also included present and future increased living expenses, including larger amounts of food and new clothes for their growing son, and driver's education and dramatic increases in the cost of car insurance; and increased taxes and insurance costs for their home. See Tex. Fam. Code Ann. § 156.401(a) (Vernon Supp. 2001). We find sufficient evidence in the record to support the trial court's modification of the child support order. We overrule appellant's second and third issues. In appellant's fourth, fifth, sixth and seventh issues, he attacks the factual and legal sufficiency of the evidence that he could pay the higher amount of child support ordered by the trial court. In these issues, appellant argues (1) the trial court should not have found that he was purposefully under-employed, (2) the trial court should have assessed his child support according to the income he reported on his tax returns rather than his earning potential, (3) the trial court failed to consider his debt burden and obligations in determining whether to raise or reduce the amount of child support he must pay, and (4) the trial court had no basis for the numbers it used to calculate his child support. In a bench trial, the trial judge passes on the witness's credibility and the weight given the witness's testimony, and can reject or accept any witness's testimony in whole or in part. See Texas W. Oil & Gas Corp. v. El Paso Gas Trans. Co., 631 S.W.2d 521, 524 (Tex. App.--El Paso 1982, writ ref'd n.r.e.). When we review a legal sufficiency challenge, we consider all the evidence in the record in a light most favorable to the party in whose favor the verdict has been rendered and indulge every reasonable inference in that party's favor. Formosa Plastics Corp. USA v. Presidio Eng'rs and Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). If the finding is supported by probative evidence, then we overrule the point and uphold the finding. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex. 1989). When confronting a factual insufficiency challenge, we overturn findings only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). A parent who is qualified to obtain gainful employment cannot avoid his or her support obligations by voluntarily remaining unemployed. Powell v. Powell, 721 S.W.2d 394, 396 (Tex. App.--Corpus Christi 1986, no writ). A trial court may use a defendant's earning capacity to determine the correct level of child support if he or she is intentionally under-employed. Tex. Fam. Code Ann. § 154.123(5) (Vernon 1996). Appellant testified that referral sources to his law practice have dried up, and that he could not find a job working for someone else. Appellant admitted that he was not advertising his law practice and gave no explanation of any attempt to revive it. His testimony reflected that he is an excellent lawyer with prestigious credentials and twenty-two years legal experience, and that similarly situated attorneys could earn at least $60,000 annually. The trial court received testimony from appellee that even apart from appellant's very heavy burden of debt, he was spending more money than he admitted to having. Appellant further testified that he had accumulated approximately $200,000 in credit card debt on thirty-two credit cards. Only certain taxes, union dues, and health insurance expenses for the child may be deducted before calculating the amount due in child support. Tex. Fam. Code Ann. § 154.062(d) (Vernon 1996). Post-divorce voluntary credit card debt does not shelter a parent from supporting his child. See Cole v. Cole, 882 S.W.2d 90, 94 (Tex. App.--Houston [14th Dist.] 1994, writ denied). We find the evidence legally and factually sufficient to support the trial court's order and overrule appellant's fourth, fifth, sixth and seventh issues. In his eighth issue, appellant argues that the trial court erred by ordering him to pay retroactive child support prior to the earlier of either the date of service of citation upon him, or the date of his appearance in the suit. The family code gives the trial judge discretion to modify child support on a retroactive basis. Tex. Fam. Code Ann. § 156.401(b) (Vernon Supp. 2001). The trial court stated that it would calculate appellant's back child support back to the point when the motion to modify was filed, but actually calculated the child support only back to the date appellant was served. Consequently, it is not necessary to discuss the issue of whether the trial court could properly award child support retroactively back to the point the motion to modify was filed. The family code explicitly allows the trial judge to modify child support back to the point a defendant is served. Id. We therefore overrule appellant's eighth issue. Appellant's ninth issue deals with comments made by the court regarding a letter appellant wrote while appellee was running for district judge. Appellant argues that the trial court erred by considering this letter and the trial court was biased against appellant for having exercised his right to free political expression. The letter was never brought before the court. The trial judge brought it up sua sponte towards the end of the hearing. The trial judge is responsible for general conduct during the trial, and we allow him discretion in expressing himself while he controls the trial, even though he should refrain from verbally confronting or displaying displeasure towards counsel. Pitt v. Bradford Farms, 843 S.W.2d 705, 706 (Tex. App.--Corpus Christi 1992, no writ). To reverse a judgment on the ground of judicial misconduct, we must find judicial impropriety coupled with probable prejudice to the complaining party. Id. We examine the record as a whole to determine whether any impropriety harmed appellant. Id. at 706-07. We have reviewed the entire record and have found a brief comment by the trial judge about appellant's out-of-court behavior. This comment should not have been made at trial. However, the evidence before the court fully supports its decision to modify appellant's child support payments and no harm is shown. See id. We overrule appellant's ninth issue. In his tenth issue, appellant argues that the trial court erred by refusing to abate or lower the payment of child support because he did not have access to his child. "A court may not render an order that conditions the payment of child support on whether a managing conservator allows a possessory conservator to have possession of or access to a child." Tex. Fam. Code Ann. § 154.011 (Vernon 1996). Appellant makes the novel argument that because he is a joint managing conservator, this provision of the family code should not apply. We see no difference in this distinction; the record shows that appellee has primary custody of their younger son and that appellant has chosen not to fully exercise his visitation rights. We overrule appellant's tenth issue. In his eleventh and twelfth issues, appellant argues that the trial court should not have required him to pay appellee's attorney's fees and instead should have required appellee to pay his attorney's fees. We review the trial court's decision to assess attorney's fees in a child custody matter for an abuse of discretion. See D.R. v. J.A.R., 894 S.W.2d 91, 95 (Tex. App.--Fort Worth 1995, writ denied). An abuse of discretion does not occur so long as some evidence of a substantive and probative character exists to support the trial court's decision. Id. The trial court heard evidence regarding the time and labor involved in representing appellee and the value of the interest involved. We see no abuse of discretion. We overrule appellant's eleventh and twelfth issues. We AFFIRM the judgment of the trial court. ___________________ ROGELIO VALDEZ Chief Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 26th day of April, 2001. 1. Cf. Tex R. Civ. P. 296 (twenty day period to request findings of fact and conclusions of law applicable in most circumstances).