In Re JAH

311 S.W.3d 536, 2009 WL 3855954
CourtCourt of Appeals of Texas
DecidedNovember 18, 2009
Docket08-07-00245-CV
StatusPublished

This text of 311 S.W.3d 536 (In Re JAH) 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 JAH, 311 S.W.3d 536, 2009 WL 3855954 (Tex. Ct. App. 2009).

Opinion

311 S.W.3d 536 (2009)

In the Interest of J.A.H. and M.K.H., Children.

No. 08-07-00245-CV.

Court of Appeals of Texas, El Paso.

November 18, 2009.

*539 Frederick Mandell, El Paso, TX, for Appellant.

Jeffrey S. Alley, Windle, Hood, Alley, Norton, Brittain & Jay, LLP, El Paso, TX, for Appellee.

Before CHEW, C.J., McCLURE, and RIVERA, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

This appeal stems from a motion to modify child support. M.S.,[1] the mother of the children, appeals the denial of her motion to increase support. For the reasons that follow, we affirm.

FACTUAL SUMMARY

The parents were divorced on July 7, 2004. With regard to the division of property, the decree required Father to pay Mother the sum of $580,000 in cash. He is also obligated to make monthly payments of $3,500 for ten years such that the total award to Mother amounts to $1,000,000. She also received a recent model Chevrolet Suburban. Father was awarded the marital home in west El Paso. The parties were appointed joint managing conservators of their two children with Mother having possession of the children sixteen days per month while Father has possession fourteen days per month. Under the terms of the decree, Father is obligated to pay $1,500 per month in child support. He also provides several additional benefits:

• health insurance for the children of $262 per month
• unreimbursed medical expenses for the children, averaging $222 per month
• $370 per month into the Texas Tomorrow Fund to finance the children's college education
• all extracurricular expenses for the children such as football and cheerleading uniforms and activity fees
• $11,000 per child per year to a trust for the children which will provide additional funds for the children's college, a first home, or business startup capital

Father also transferred to the children an interest in his business and designated the children as the sole beneficiaries of his estate. All estate taxes will be paid through life insurance.

With the $580,000 cash payment, Mother bought a five bedroom home less than two miles from the marital residence. She was unemployed during the marriage and did *540 not work for a period of time following divorce. She began working as a fund raiser with Court Appointed Special Advocates (CASA) in January 2005, earning $36,000 a year. As of September 2005, she began working as a school teacher for the El Paso Independent School District.

On January 14, 2006, Mother remarried. The couple bought a new home in Horizon City on the far east side of El Paso County the following June. Mother testified she purchased the home because the westside house was too small for the children, lacked a swimming pool, and was located in an unsafe neighborhood. She and her new husband had a child in February 2007.

After the divorce, Mother traded the Suburban for a Lincoln Aviator. She then traded the Aviator for a 2005 Ford Expedition. In June 2006, she purchased another Suburban with a DVD player, wireless headphones, XM satellite radio, and a navigation system.

In July 2006, Mother sought to increase child support based on unspecified material and substantial changes in the circumstances of the children and affected persons. The trial court denied the motion after an evidentiary hearing and this appeal follows.

SUFFICIENCY OF THE EVIDENCE

In her first two issues for review, Mother challenges the sufficiency of the evidence to support the trial court's findings that the circumstances of the children have not materially or substantially changed since the date of divorce and that the needs of the children are being met.

Standard of Review

An order regarding child support 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). While an appellant may challenge the sufficiency of the evidence to support findings of fact, in most circumstances, that is not enough. We must engage in 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? 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.

In considering a legal sufficiency or "no evidence" point, we consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). Even if evidence is undisputed, it is the province of the trier of fact to draw from it whatever inferences it wishes so long as more than one inference is possible. Id. at 821. But if the evidence allows only one inference, neither the trier of fact nor the reviewing court may disregard it. Id. We are also mindful that the trier of fact is the sole judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819. When there is conflicting evidence, it is the province of the trier of fact to resolve such conflicts. Id. at 820. In every circumstance in which a reasonable trier of fact could resolve conflicting evidence either way, the reviewing court must presume it did so in favor of the prevailing party, and disregard the conflicting evidence in its sufficiency review. Id. at 821. If the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then the trier of fact must be allowed to do so. Id. at *541 822. So long as the evidence falls within this zone of reasonable disagreement, we may not substitute our judgment for that of the trier-of-fact. Id. The ultimate test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. Id. at 827.

A factual sufficiency point requires examination of all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951); Worsham Steel Co. v. Arias, 831 S.W.2d 81 (Tex.App.-El Paso 1992, no writ). The reviewing court cannot substitute its conclusions for those of the jury. If there is sufficient competent evidence of probative force to support the finding, it must be sustained. Carrasco v. Goatcher, 623 S.W.2d 769 (Tex.App.-El Paso 1981, no writ). It is not within the province of this court to interfere with the jury's resolution of conflicts in the evidence or to pass on the weight or credibility of the witness's testimony. Benoit v. Wilson, 150 Tex.

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Bluebook (online)
311 S.W.3d 536, 2009 WL 3855954, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jah-texapp-2009.