In Re EAS

123 S.W.3d 565, 2003 WL 22462132
CourtCourt of Appeals of Texas
DecidedOctober 30, 2003
Docket08-02-00483-CV
StatusPublished

This text of 123 S.W.3d 565 (In Re EAS) 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
In Re EAS, 123 S.W.3d 565, 2003 WL 22462132 (Tex. Ct. App. 2003).

Opinion

123 S.W.3d 565 (2003)

In the Interest of E.A.S. and B.M.S., Minor Children.

No. 08-02-00483-CV.

Court of Appeals of Texas, El Paso.

October 30, 2003.

*567 Allen R. Stroder, Hirsch & Stroder, L.L.P., Odessa, for Appellant.

William R. Bowden, Odessa, for Appellee.

Before Panel No. 1 LARSEN, ANN CRAWFORD McCLURE, and CHEW, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

This is an appeal from the modification of child support payments. The primary issue for review is whether Kevin Scott was intentionally underemployed. We affirm.

*568 FACTUAL SUMMARY

Although the record does not contain the final decree, Kevin and Rebecca Scott were divorced at some point between February 1996 and February 1999. In February 1999, the trial court modified Kevin's child support obligations, setting support at $750 per month for two children. In November 2000, the support was increased to $874 monthly. Kevin lost his job in April 2001. As part of his severance package, he was to be paid his salary through October. On October 1, Kevin filed suit to decrease support. Following a bench trial in March 2002, the trial court set support at $728 per month.

Kevin has a degree in computer science and had worked for Texas Instruments in Sherman, Texas for over seventeen years when he was laid off. He began his job search in May 2001 and tried to find work throughout Texas and in New York City, Oklahoma, California, and Colorado. He attended several training sessions with employment companies, including courses in interviewing skills and resume writing. He sent out between 1,500 and 2,000 applications which generated only two requests for interviews. One was from a headhunter firm and one was for a teaching position with the San Angelo Independent School District. The position in San Angelo was for a technician rather than a teacher, with a salary of $40,000 to $45,000. Kevin visited numerous companies around Dallas and left resumes and cover letters with the human resources departments.

Also in May 2001, Rebecca told Kevin that her father, Ruben Velasquez, would offer him a job. The job was temporary, required extensive travel on the east coast, did not permit time off, and would not allow Kevin to see his children during their summer vacation. Velasquez testified at trial that the job would pay between $20 to $45 per hour and that his low-end employees earned about $45,000 a year. Kevin never contacted him about the job. Instead, he began working as a part-time teacher for the Sherman Independent School District, where his current wife is employed as an administrator. He is paid a little over $14,000 a year, or $1,171 per month, for twenty hours of work per week. Although he has applied for a full-time position, the district has had no positions available. At the time of the hearing, Kevin was still actively seeking full-time employment and a higher paying position. As part of his teaching certification requirements, Kevin was also taking courses at Texas A & M University in Commerce.

STANDARD OF REVIEW

On appeal, Kevin complains that the trial court abused its discretion in setting child support based upon his intentional underemployment. Indirectly, he challenges the legal and factual sufficiency of the evidence to establish that he is intentionally underemployed. Because these points implicate two different appellate standards of review, we first address the distinctions between them and how they overlap in the family law arena.

A "no evidence" or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact-finding. In the Interest of De La Pena, 999 S.W.2d 521, 532 (Tex.App.-El Paso 1999, no pet.). When reviewing a legal sufficiency complaint, we consider only the evidence and inferences tending to support the trial court's finding, disregarding all contrary evidence and inferences. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001). "Insufficient evidence" or factual insufficiency involves a finding that is so against the great weight and preponderance of the evidence as to be manifestly wrong. Bates v. Tesar, 81 S.W.3d 411, 425 (Tex.App.-El *569 Paso 2002, no pet). The test for factual insufficiency is set forth in In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). In reviewing an issue asserting that a finding is against the great weight and preponderance of the evidence, we must consider all of the evidence, both the evidence which tends to prove the existence of a vital fact, as well as evidence which tends to disprove its existence. It is for the fact finder to determine the weight to be given to the testimony and to resolve any conflicts in the evidence. See Carrasco v. Goatcher, 623 S.W.2d 769, 772 (Tex. App.-El Paso 1981, no writ).

Most orders arising from a suit affecting the parent/child relationship will not be disturbed on appeal unless the complaining party can demonstrate a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); Hodson v. Keiser, 81 S.W.3d 363, 367 (Tex.App.-El Paso 2002, no pet.). In the child support context, an appellant may challenge the sufficiency of the evidence to support a finding of net resources, a finding of the proven needs of the child, a finding of voluntary unemployment or underemployment, or a finding of a material and substantial change in circumstances. Our analysis employs a two-pronged inquiry: (1) Did the trial court have sufficient information upon which to exercise its discretion, and (2) did the trial court err in its application of discretion? Hodson, 81 S.W.3d at 367; Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex.App.-El Paso 1998, no pet.). The traditional sufficiency inquiry applies to the first question. Id. Once we have determined whether sufficient evidence exists, we must then decide whether the trial court made a reasonable decision. In other words, we must conclude that the ruling was neither arbitrary nor unreasonable. Hodson, 81 S.W.3d at 367. The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965); Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959). An abuse of discretion does not occur as long as some evidence of a substantive and probative character supports the trial court's decision. See In the Interest of Gonzalez, 993 S.W.2d 147, 155 (Tex.App.-San Antonio 1999, no pet.); D.R. v. J.A.R., 894 S.W.2d 91, 95 (Tex.App.-Fort Worth 1995, writ denied).

ABSENCE OF FINDINGS OF FACT

As we have noted, Kevin contests the trial court's "finding" that he is intentionally underemployed.

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Bluebook (online)
123 S.W.3d 565, 2003 WL 22462132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-eas-texapp-2003.