Opinion issued July 12, 2012.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00783-CV ——————————— ALEJANDRO MARQUEZ, Appellant V. LORENZA MONCADA AND THE OFFICE OF THE ATTORNEY GENERAL, Appellees
On Appeal from the 310th District Court Harris County, Texas Trial Court Case No. 1019352
OPINION
Alejandro Marquez appeals from a child support order mandating that he
pay current and retroactive child support to Lorenza Moncada, on behalf of their
two minor children. See TEX. FAM. CODE ANN. §§ 233.001–.029 (West 2008 & Supp. 2011). Marquez contends that (1) insufficient evidence supports the trial
court’s determination of child support payments, (2) the trial court erred in denying
his motion to modify, and (3) the trial court erred in failing to make requested
findings of fact. We conclude that legally insufficient evidence supports the trial
court’s calculation of Marquez’s net resources and its corresponding award of
current and retroactive child support payments. Accordingly, we reverse that
portion of the order setting forth Marquez’s child support obligations and remand
to the trial court for further proceedings.
Background
Two children, T.M. and A.M., were born to Marquez and Moncada. In
2007, Marquez and Moncada ceased living together and ended their relationship.
In March 2010, the Office of the Attorney General of Texas (OAG)
petitioned on behalf of T.M. and A.M. to confirm a child support review order
(CSRO) establishing Marquez’s paternity and child support obligations under
Chapter 233 of the Texas Family Code. See id. The CSRO includes findings
regarding paternity, conservatorship, possession and access, health insurance, and
child support. One finding states that Marquez’s net resources per month are
$3,366.99.
Upon filing this suit, the OAG attached an investigative report to its petition
in the trial court that alleged that Marquez’s average monthly gross income is
2 $4,386.00, with corresponding monthly net resources of $3,366.99—an amount
that matches the CSRO finding. The OAG’s report was not authenticated or
admitted into evidence; the report gave no basis for the computation of Marquez’s
net resources. Marquez generally denied the OAG’s petition.
At a hearing to confirm the CSRO, Moncada introduced paternity tests
proving that Marquez is the father of T.M. and A.M. Moncada testified that
Marquez had not paid support on behalf of either child. When questioned about
Marquez’s income, Moncada testified that she did not know what Marquez earned,
nor where he was employed. She did not know if he carried health insurance, had
never seen his pay stubs, and conceded that she had no knowledge of his present
lifestyle. Neither the State nor Moncada introduced documents at the hearing
establishing Marquez’s salary, income, or wages. Nor did Marquez produce any
documents or testimony concerning his income.
The trial court confirmed the non-agreed CSRO. In its order, the trial court
found that Marquez had net resources of $3,366.99 per month and ordered that
twenty-five percent of those resources be paid for child support. The court
awarded $842.00 in current child support each month and retroactive child support
of $41,258.00.
3 Discussion
Marquez contends that the record contains no evidence of his monthly net
resources, and thus the child support order must be reversed.
Standard of Review
We review a trial court’s judgment granting child support under an abuse of
discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per
curiam); Miles v. Peacock, 229 S.W.3d 384, 388 (Tex. App.—Houston [1st Dist.]
2007, no pet.). A trial court abuses its discretion when it acts
arbitrarily, unreasonably, or without reference to any guiding rules and principles.
Worford, 801 S.W.2d at 109; McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex.
App.—Houston [1st Dist.] 1999, no pet.); Holley v. Holley, 864 S.W.2d 703, 706
(Tex. App.—Houston [1st Dist.] 1993, writ denied). In the child-support
context, we do not consider evidentiary sufficiency challenges independently, but
as part of the abuse-of-discretion determination. McGuire, 4 S.W.3d at 387 n.2;
see Newberry v. Bohn-Newberry, 146 S.W.3d 233, 235 (Tex. App.—Houston [14th
Dist.] 2004, no pet.). We use a two-pronged inquiry, considering first whether the
trial court had enough information upon which to exercise its discretion, and, if
so, whether the trial court erred in exercising its discretion based on the evidence.
Moreno v. Perez, 363 S.W.3d 725, 735 (Tex. App.—Houston [1st Dist.] 2011, no
pet.).
4 Analysis
Texas Family Code Chapter 154 governs child support proceedings and sets
forth guidelines to apply in determining an equitable amount of child support. See
TEX. FAM. CODE ANN. §§ 154.001–.309 (West 2008 & Supp. 2011). Chapter 154
instructs that the trial court “shall calculate net resources for the purpose of
determining child support liability as provided by this section.” TEX. FAM. CODE
ANN. § 154.062(a) (West Supp. 2011). “Net resources” includes all wage and
salary income, self-employment income, and all other income actually received.
Id. § 154.062(b). “There must be some evidence of a substantive and probative
character of net resources in order for the court to discharge its duty under section
154.062.” Miles, 229 S.W.3d at 389 (quoting Newberry, 146 S.W.3d at 236)
(internal quotations omitted). In the absence of evidence of the wage and salary
income of a party, a court shall presume that the party has wages or salary equal to
the federal minimum wage for a 40–hour week. TEX. FAM. CODE ANN. § 154.068
(West 2008).
Marquez contends that the trial court lacked sufficient evidence to calculate
his net resources, because no evidence established his income or capability for
earning income. He maintains that, in the absence of such evidence, the trial court
was required to “presume that [he] has wages or salary equal to the federal
minimum wage for a 40-hour week.” Id.
5 We agree that the record reveals no evidence concerning Marquez’s
employment, wages, salary, or income. No documents in evidence demonstrate
Marquez’s monthly salary. Moncada testified that she did not know what Marquez
earned or where he was employed. She had never seen Marquez’s pay stubs and
had no knowledge of his present lifestyle. Marquez did not appear for the trial, and
thus did not testify as to his resources. Because the record contains no evidence of
Marquez’s salary or income, we conclude that there is insufficient evidence to
support the trial court’s finding that Marquez’s had net resources of $3,366.99 per
month, and we therefore reverse its corresponding award of current and retroactive
child support payments. See Miles, 229 S.W.3d at 390.
The OAG responds that its counsel’s unsworn assertions at Marquez’s
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Opinion issued July 12, 2012.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00783-CV ——————————— ALEJANDRO MARQUEZ, Appellant V. LORENZA MONCADA AND THE OFFICE OF THE ATTORNEY GENERAL, Appellees
On Appeal from the 310th District Court Harris County, Texas Trial Court Case No. 1019352
OPINION
Alejandro Marquez appeals from a child support order mandating that he
pay current and retroactive child support to Lorenza Moncada, on behalf of their
two minor children. See TEX. FAM. CODE ANN. §§ 233.001–.029 (West 2008 & Supp. 2011). Marquez contends that (1) insufficient evidence supports the trial
court’s determination of child support payments, (2) the trial court erred in denying
his motion to modify, and (3) the trial court erred in failing to make requested
findings of fact. We conclude that legally insufficient evidence supports the trial
court’s calculation of Marquez’s net resources and its corresponding award of
current and retroactive child support payments. Accordingly, we reverse that
portion of the order setting forth Marquez’s child support obligations and remand
to the trial court for further proceedings.
Background
Two children, T.M. and A.M., were born to Marquez and Moncada. In
2007, Marquez and Moncada ceased living together and ended their relationship.
In March 2010, the Office of the Attorney General of Texas (OAG)
petitioned on behalf of T.M. and A.M. to confirm a child support review order
(CSRO) establishing Marquez’s paternity and child support obligations under
Chapter 233 of the Texas Family Code. See id. The CSRO includes findings
regarding paternity, conservatorship, possession and access, health insurance, and
child support. One finding states that Marquez’s net resources per month are
$3,366.99.
Upon filing this suit, the OAG attached an investigative report to its petition
in the trial court that alleged that Marquez’s average monthly gross income is
2 $4,386.00, with corresponding monthly net resources of $3,366.99—an amount
that matches the CSRO finding. The OAG’s report was not authenticated or
admitted into evidence; the report gave no basis for the computation of Marquez’s
net resources. Marquez generally denied the OAG’s petition.
At a hearing to confirm the CSRO, Moncada introduced paternity tests
proving that Marquez is the father of T.M. and A.M. Moncada testified that
Marquez had not paid support on behalf of either child. When questioned about
Marquez’s income, Moncada testified that she did not know what Marquez earned,
nor where he was employed. She did not know if he carried health insurance, had
never seen his pay stubs, and conceded that she had no knowledge of his present
lifestyle. Neither the State nor Moncada introduced documents at the hearing
establishing Marquez’s salary, income, or wages. Nor did Marquez produce any
documents or testimony concerning his income.
The trial court confirmed the non-agreed CSRO. In its order, the trial court
found that Marquez had net resources of $3,366.99 per month and ordered that
twenty-five percent of those resources be paid for child support. The court
awarded $842.00 in current child support each month and retroactive child support
of $41,258.00.
3 Discussion
Marquez contends that the record contains no evidence of his monthly net
resources, and thus the child support order must be reversed.
Standard of Review
We review a trial court’s judgment granting child support under an abuse of
discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per
curiam); Miles v. Peacock, 229 S.W.3d 384, 388 (Tex. App.—Houston [1st Dist.]
2007, no pet.). A trial court abuses its discretion when it acts
arbitrarily, unreasonably, or without reference to any guiding rules and principles.
Worford, 801 S.W.2d at 109; McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex.
App.—Houston [1st Dist.] 1999, no pet.); Holley v. Holley, 864 S.W.2d 703, 706
(Tex. App.—Houston [1st Dist.] 1993, writ denied). In the child-support
context, we do not consider evidentiary sufficiency challenges independently, but
as part of the abuse-of-discretion determination. McGuire, 4 S.W.3d at 387 n.2;
see Newberry v. Bohn-Newberry, 146 S.W.3d 233, 235 (Tex. App.—Houston [14th
Dist.] 2004, no pet.). We use a two-pronged inquiry, considering first whether the
trial court had enough information upon which to exercise its discretion, and, if
so, whether the trial court erred in exercising its discretion based on the evidence.
Moreno v. Perez, 363 S.W.3d 725, 735 (Tex. App.—Houston [1st Dist.] 2011, no
pet.).
4 Analysis
Texas Family Code Chapter 154 governs child support proceedings and sets
forth guidelines to apply in determining an equitable amount of child support. See
TEX. FAM. CODE ANN. §§ 154.001–.309 (West 2008 & Supp. 2011). Chapter 154
instructs that the trial court “shall calculate net resources for the purpose of
determining child support liability as provided by this section.” TEX. FAM. CODE
ANN. § 154.062(a) (West Supp. 2011). “Net resources” includes all wage and
salary income, self-employment income, and all other income actually received.
Id. § 154.062(b). “There must be some evidence of a substantive and probative
character of net resources in order for the court to discharge its duty under section
154.062.” Miles, 229 S.W.3d at 389 (quoting Newberry, 146 S.W.3d at 236)
(internal quotations omitted). In the absence of evidence of the wage and salary
income of a party, a court shall presume that the party has wages or salary equal to
the federal minimum wage for a 40–hour week. TEX. FAM. CODE ANN. § 154.068
(West 2008).
Marquez contends that the trial court lacked sufficient evidence to calculate
his net resources, because no evidence established his income or capability for
earning income. He maintains that, in the absence of such evidence, the trial court
was required to “presume that [he] has wages or salary equal to the federal
minimum wage for a 40-hour week.” Id.
5 We agree that the record reveals no evidence concerning Marquez’s
employment, wages, salary, or income. No documents in evidence demonstrate
Marquez’s monthly salary. Moncada testified that she did not know what Marquez
earned or where he was employed. She had never seen Marquez’s pay stubs and
had no knowledge of his present lifestyle. Marquez did not appear for the trial, and
thus did not testify as to his resources. Because the record contains no evidence of
Marquez’s salary or income, we conclude that there is insufficient evidence to
support the trial court’s finding that Marquez’s had net resources of $3,366.99 per
month, and we therefore reverse its corresponding award of current and retroactive
child support payments. See Miles, 229 S.W.3d at 390.
The OAG responds that its counsel’s unsworn assertions at Marquez’s
motion for new trial hearing constitute sufficient evidence of Marquez’s wages or
income. At that hearing, the assistant attorney general stated, “There is a
finding . . . on page thirteen of [the Child Support Review Order]. It did say what
his net income was. It’s based upon [the] Texas Workforce Commission.” The
OAG maintains that this Court should treat those statements as testimony under
Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997).
In Banda, the sole issue was whether the parties had orally agreed to extend
a settlement deadline. Id. When the plaintiff’s attorney did not appear at a hearing
on the defendant’s motion to enforce the settlement (but sent his associate in his
6 place), defense counsel’s unsworn statements at the hearing were “the only
available evidence of the oral agreement to extend the deadline.” Id. Because
opposing counsel failed to object to the unsworn statements of fact, the Supreme
Court concluded that they were some evidence of the settlement agreement. Id.
We conclude that Banda is factually inapposite. Here, the purported
testimony was elicited during Marquez’s motion for new trial hearing, not at the
hearing on the OAG’s petition to confirm the CSRO. Thus, unlike Banda, the
purported testimony was not part of the relevant evidentiary hearing. See id. It
came before the court in connection with a later hearing; the court did not consider
it in confirming the CSRO. Also, unlike Banda, the assistant attorney general’s
statements do not consist of factual assertions about a matter for which he appears
to have personal knowledge. See id. The assistant attorney general never
purported to testify to Marquez’s employment, salary, or income such that
opposing counsel would have been put on notice of the need to object. Compare
Banda, 955 S.W.2d at 272 (counsel’s assertions at hearing to enforce settlement
agreement constituted some evidence of agreement where opposing counsel failed
to object to assertions and proffered testimony concerned nature and terms of
settlement), with Gattis v. Duty, 349 S.W.3d 193, 199 n.3 (Tex. App.—Austin
2011, no pet.) (noting that counsel presented argument, not testimony, because
assertions were not factual in nature and were not probative of any fact material to
7 jurisdictional inquiry). Rather, the assistant attorney general attempted to direct
the trial court to evidence—already within the record—that provided a basis for
trial court’s calculation of Marquez’s net resources.
To rectify the error, Marquez requests that we render judgment that he pay
the statutory minimum in child support. He argues that, in the absence of evidence
of his net income, trial court could have presumed that Marquez’s monthly gross
wages were equal to the federal minimum wage for a forty-hour week ($1,256.67)
and awarded child support under the statutory guidelines in accord with that
calculation of his resources. See TEX. FAM. CODE ANN. § 154.068. We decline to
render judgment. It is undisputed that Marquez owes some undetermined amount
in child support, and calculation of Marquez’s net resources is only one step in
determining the amount of his child support obligation. Under the Family
Code, the court must ascertain the number of children before it, determine the
percentage of net resources that the non-custodial parent would pay under the
guidelines and consider whether any additional factors would justify varying from
the guidelines. See id. § 154.121 (“the child support guidelines . . . are intended to
guide the court in determining an equitable amount of child support”); see also id.
§ 154.122 (permitting court to determine that application of guidelines would be
unjust or inappropriate); id. § 154.123 (listing factors for court to consider in
deciding whether to deviate from amount calculated under Family Code
8 guidelines). We therefore remand the case to the trial court for further proceedings
on the determination of Marquez’s net resources and current and retroactive child
support obligations. See Office of Att’y Gen. of Tex. v. Burton, No. 11-0316, 2012
WL 2053321, at *1 (Tex. June 8, 2012) (per curiam) (concluding that no evidence
supported trial court judgment in suit to confirm child support arrearage and
remanding case to trial court for further proceedings); see also Moreno, 363
S.W.3d at 736 (concluding that trial court should have applied minimum wage
presumption to mother and remanding for further proceedings portion of trial court
order setting forth mother’s net resources finding and imposing support
obligation); Miles, 229 S.W.3d at 390–91 (reversing trial court’s calculation of
appellant’s net resources and remanding for further proceedings).
9 Conclusion
We hold that the record contains legally insufficient evidence to support the
trial court’s award of current and retroactive child support. Accordingly, we
reverse that portion of the order setting forth Marquez’s net-resources finding and
imposing his child support obligations, and we remand for further proceedings to
determine Marquez’s net resources. In all other respects, we affirm the order of
the trial court.
Jane Bland Justice
Panel consists of Justices Keyes, Bland, and Sharp.
Justice Sharp, concurring in part and dissenting in part.