In Re MPM

161 S.W.3d 650, 2005 WL 418544
CourtCourt of Appeals of Texas
DecidedFebruary 23, 2005
Docket04-04-00264-CV
StatusPublished

This text of 161 S.W.3d 650 (In Re MPM) 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 MPM, 161 S.W.3d 650, 2005 WL 418544 (Tex. Ct. App. 2005).

Opinion

161 S.W.3d 650 (2005)

In the Interest of M.P.M., S.N.M., and J.D.M., Minor Children.

No. 04-04-00264-CV.

Court of Appeals of Texas, San Antonio.

February 23, 2005.

*653 Mark L. Medley, Law Office of Mark L. Medley, P.C., San Antonio, for appellant.

Christine Tharp, Robinson C. Ramsey, Langley & Banack, Inc., San Antonio, for appellee.

Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.

OPINION

Opinion by CATHERINE STONE, Justice.

Delia Monica Maher appeals the trial court's order denying her motion for judgment of child support arrearage and refusing to find Stephen Maher, the appellee, in contempt.[1] Delia raises three issues on appeal. She contends the evidence presented at trial was legally and factually insufficient to support the court's finding that she voluntarily relinquished possession and control of her two oldest children, M.P.M. and S.N.M., to Stephen. Delia also contests the legal and factual sufficiency of the evidence supporting the trial court's finding that Stephen was entitled to a child support offset. Lastly, Delia argues the trial court erred by improperly calculating the offset. In a cross-issue, Stephen requests a judgment against Delia for reimbursement of child support.

FACTUAL AND PROCEDURAL BACKGROUND

Delia and Stephen Maher were divorced in 2001. Pursuant to the divorce decree, Stephen was ordered to pay $1200 a month in child support and provide health insurance for the couple's three children, M.P.M., S.N.M., and J.D.M. Delia and Stephen were appointed joint managing conservators of their children, with Delia retaining primary custody and Stephen entitled to possession during specified periods of time. In July 2002, M.P.M. went to stay with Stephen and continued to reside in his home until the court awarded Stephen primary custody in December 2003.[2] The couple's second oldest child, S.N.M., also resided with Stephen from March 2, 2003 until August 2003. Delia testified at trial that Stephen provided financial support for M.P.M. and S.N.M. while they were residing with him, and that she did not pay Stephen any child support for M.P.M. and S.N.M. Stephen continued to make $1200 child support payments to Delia until April 2003, one month after S.N.M. began living at his residence. Stephen ultimately reduced the amount of child support he was paying, and Delia filed pleadings, requesting the court to grant her a judgment in child support arrears and to hold Stephen in contempt.

As an affirmative defense, Stephen invoked section 157.008 of the Texas Family Code. TEX. FAM.CODE ANN. § 157.008 (Vernon *654 2002) (providing that an obligor may plead as an affirmative defense to a motion for enforcement of child support that the obligee voluntarily relinquished to the obligor actual possession and control of a child). He testified that Delia voluntarily relinquished possession and control of M.P.M. by closing the door in her face, telling M.P.M. she did not live with her anymore, and informing Stephen she did not want M.P.M. to live with her. Delia denied she said these things, and testified she wanted M.P.M. to return. Stephen also testified that Delia voluntarily relinquished possession and control of S.N.M. by asking Stephen to pick up S.N.M. after telling S.N.M. to go live with her father. Delia testified that she wanted the children back, that Stephen kept them from her, and would not let them speak with her on the telephone. Stephen denied that Delia asked for return of the children. Both testified that during the periods of time M.P.M. and S.N.M. resided with Stephen, the children visited and stayed overnight at Delia's home on sporadic occasions. Both children were returned to Stephen's residence after such visits.

To support his affirmative defense, Stephen testified about the time periods each child resided with him, and provided exhibits summarizing his testimony regarding expenses he incurred to support M.P.M. and S.N.M. The trial court determined that Stephen owed $6,443 in child support arrears, and that Delia had voluntarily relinquished possession and control of her two oldest children. The court determined that Stephen retained possession of M.P.M. and S.N.M. for a time period in excess of court-ordered possession and had provided actual support to the children during that time period. See id. § 157.008(a), (b). Stephen testified that he provided $9,898.41 in actual support of M.P.M. and S.N.M., and spent $2,433.17 on medical care during the period of voluntary relinquishment. Because Stephen provided actual support in excess of the arrears, the court offset Delia's claim by $6,443, thus finding Stephen to be current in his support payments. Accordingly, the trial court denied Delia's request for a judgment awarding a child support arrearage and refused to hold Stephen in contempt.

STANDARD OF REVIEW

We review the trial court's child support ruling under an abuse of discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); In Re C.Z.B., 151 S.W.3d 627, 630 (Tex.App.-San Antonio 2004, no pet.). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). "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." Id. at 242. Under the abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds for asserting error. In re Gonzalez, 993 S.W.2d 147, 155 (Tex.App.-San Antonio 1999, no pet.). However, legal and factual sufficiency are relevant factors in assessing whether the trial court abused its discretion. Id.

When reviewing the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the finding, disregarding all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988). Anything more than a scintilla of *655 evidence is legally sufficient to uphold the finding. Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998).

In conducting a factual sufficiency review, we consider and weigh all the evidence in a neutral light, and will sustain a factual sufficiency challenge only if we conclude that the evidence supporting the finding is so weak that the finding is clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

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In the Interest of M.P.M.
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161 S.W.3d 650, 2005 WL 418544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mpm-texapp-2005.