Blanco v. Gracia

767 S.W.2d 896, 1989 Tex. App. LEXIS 536, 1989 WL 22594
CourtCourt of Appeals of Texas
DecidedMarch 16, 1989
Docket13-88-080-CV
StatusPublished
Cited by19 cases

This text of 767 S.W.2d 896 (Blanco v. Gracia) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blanco v. Gracia, 767 S.W.2d 896, 1989 Tex. App. LEXIS 536, 1989 WL 22594 (Tex. Ct. App. 1989).

Opinion

OPINION

SEERDEN, Justice.

Appellant complains that the trial court reduced appellee’s child support obligation and increased his visitation privileges. Because the trial court had not filed properly requested findings of fact and conclusions of law, as appellant’s point five demonstrated, we abated the appeal, ordering the trial court to make and file findings and conclusions. They are now filed. Appellant has not shown inability to properly present the appeal caused by the judge’s delay. See Anderson v. Smith, 635 S.W.2d 204, 206 (Tex.App.—Houston [1st Dist.] 1982, no writ). After examining appellant’s complaints in light of the record, including the findings and conclusions, we overrule all of her points and affirm the trial court’s order.

The trial court found as follows: In June, 1986, the trial court signed an order setting child support at $300 a month. At that time, appellee earned about $10.45 an hour. *897 On July 17, 1986, appellee filed a motion to reduce child support, claiming he was unemployed and receiving $203 a week. The court heard the motion on December 22, 1986, and denied it. On February 4, 1987, the Supreme Court of Texas adopted child support guidelines. On April 2, 1987, ap-pellee filed a motion to modify to reduce child support (this suit), claiming earnings of $129.56 per week. It was heard on October 27, 1987, at which time appellee’s net earnings were $125.45 a week, or $552 a month. Appellee provided health insurance for the child a a premium rate of $125 a month. For the support of one child, the guidelines authorize a maximum of $127 a month for an individual with the same net earnings as appellee. Appellee is willing to pay $125 a month. An increase in appel-lee’s visitation and access does not physically or emotionally endanger the child.

By points one and two, appellant claims there was no evidence or insufficient evidence of a material and substantial change in circumstances to support the trial court’s decrease of child support. Tex.Fam.Code Ann. § 14.08(c)(2) (Vernon Supp.1989).

Appellant contends that the evidence should have been limited to the circumstances after the December, 1986, order and complains of the admission of testimony concerning April, 1986.

The trial court could consider the circumstances from the time the previous amount of support was initially ordered to the time of the hearing on the motion in question to determine whether a material and substantial change had occurred. See Phillips v. Phillips, 695 S.W.2d 61, 63-4 (Tex.App.—San Antonio), rev’d and remanded on other grounds, 701 S.W.2d 651 (Tex.1985); Strauss v. Strauss, 619 S.W.2d 18, 19 (Tex.Civ.App.—Corpus Christi 1981, no writ); Moreland v. Moreland, 589 S.W.2d 828, 829 (Tex.Civ.App.—Dallas 1979, writ dism’d); Bradshaw v. Billups, 587 S.W.2d 61, 62 (Tex.Civ.App.—Eastland 1979, no writ).

Our examination of the transcript shows that child support of $300 a month was set in February, 1984. The June, 1986, and December, 1986, orders merely continued the previous level of support. Thus, the trial com*t could consider any circumstances since February, 1984.

We review findings of fact for the sufficiency of the evidence to support them by the same standards we apply in reviewing jury answers to special issues. See Baker v. Baker, 719 S.W.2d 672, 674-75 (Tex.App.—Fort Worth 1986, no writ). In determining “no evidence” points, we consider only the evidence and inferences supporting the findings and disregard all contrary evidence and inferences. Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985); International Armament Corp. v. King, 686 S.W.2d 595, 597 (Tex.1985); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). If any evidence of probative force supports the finding, we must uphold it and overrule the point. In re King’s Estate, 244 S.W.2d at 661-62.

An assertion that evidence is “insufficient” to support a finding can mean that the evidence supporting the finding is so weak or that the evidence to the contrary is so overwhelming that we should set aside the finding and order a new trial. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We consider all of the evidence in making this determination. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986).

It is the prerogative of the fact finder to resolve any contradictions or inconsistencies in the evidence and to judge the credibility of the witnesses and the weight to be given their testimony. Magcobar North American, A Division of Dresser Industries, Inc. v. Grosso Oilfield Services, Inc., 736 S.W.2d 787, 800 (Tex.App.—Corpus Christi 1987), dism’d as moot, 754 S.W.2d 646 (Tex.1988); Jim Walter Homes, Inc. v. Gonzalez, 686 S.W.2d 715, 718 (Tex.App.—San Antonio 1985, writ dism’d). The fact finder can make reasonable inferences and deductions from the direct or circumstantial evidence. Magcobar, 736 S.W.2d at 800; Jim Walter Homes, Inc., 686 S.W.2d at 718; Harrison v. Harrison, 597 S.W.2d 477, 485 (Tex.Civ.App.—Tyler 1980, writ ref’d n.r.e.).

*898 Additionally, we must presume that the trial judge disregarded any improperly received evidence. City of Arlington v. Texas Electric Service Co., 540 S.W.2d 580, 584 (Tex.Civ.App.—Fort Worth 1976, writ ref’d n.r.e.).

Appellee submitted information on his income and expenses, including bank account records and his income tax form, along with his testimony. He testified that his father helped him when he was attending school, that his father died, and that he now must pay rent to his mother. Moreover, given the duration of appellee’s decreased income, the trial court could conclude that the income reduction was not a short-term situation, but a genuine change in circumstances.

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Bluebook (online)
767 S.W.2d 896, 1989 Tex. App. LEXIS 536, 1989 WL 22594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blanco-v-gracia-texapp-1989.