In Re NT

335 S.W.3d 660, 2011 WL 263728
CourtCourt of Appeals of Texas
DecidedJanuary 26, 2011
Docket08-09-00063-CV
StatusPublished

This text of 335 S.W.3d 660 (In Re NT) 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 NT, 335 S.W.3d 660, 2011 WL 263728 (Tex. Ct. App. 2011).

Opinion

335 S.W.3d 660 (2011)

In the Interest of N.T., a child.

No. 08-09-00063-CV.

Court of Appeals of Texas, El Paso.

January 26, 2011.

*662 John Gates, El Paso, 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

GUADALUPE RIVERA, Justice.

Appellant, Omar Thomas, appeals the referring court's determination of child support for his daughter, Natalia Thomas. In six issues on appeal, Appellant complains of the legal and factual sufficiency of the evidence, alleges that the referring court improperly deviated from the statutory child-support guidelines, and contends that the referring court erroneously considered inadmissible testimony. For the following reasons, we affirm.

BACKGROUND

While working as the publications coordinator for the athletic program at the University of Texas at El Paso (UTEP), Appellee, Leah Wayne, met Appellant, a basketball player at UTEP. Although they never married, Appellant and Appellee had a daughter, Natalia. Natalia was born on November 21, 2005, and resided with Appellee. In 2008, Natalia was diagnosed with acute lymphoblastic leukemia, *663 which will require two-and-a-half years of chemotherapy treatment.

Child Support

Appellant made some payments to Appellee for child support; however, the amount and number of those payments were disputed by the parties. According to Appellee, Appellant only gave her $300 in 2005, that payment occurring sometime in September or October. Appellant, on the other hand, testified that he also paid her $200 in November and December of 2005. For 2006, Appellee alleged that Appellant gave her between $1,000 and $1,500 for the entire year, and for 2007, the parties agreed that Appellant paid Appellee $200 each month from February until May.

Appellant's Income

The evidence of Appellant's income was also conflicting. After playing basketball for UTEP, Appellant was drafted by the Continental Basketball League. However, he declined to pursue a position in that league. He also chose not to enter the NBA's developmental league, reasoning that he could make "triple" than the $24,000 cap made by the league's "A" players each year. Appellant wanted to build his resume for a run at the "big money" in the European League.

After Appellant's tryout with the NBA in Seattle, he accepted a player position with the Coca Cola Tigers in the Philippines. Appellant remained with the team for two months—November and December of 2005—and he contended that his total earnings there were $3,500, less a 10 percent agent's fee. Appellant, however, did not present any documentary evidence of that amount because he was paid "under the table." In contrast, Appellee testified that Appellant told her that he received at least $10,000 each month for playing in that league.

Appellant returned to El Paso in January 2006, but in March or April, he moved to Austin to play for the NBA developmental league for three to four weeks. According to Appellant's W-2, he received a total of $2,642.62 for that period. Appellant then went to play for a team in the Dominican Republic. His three weeks there allegedly earned him $2,000, but again, Appellant produced no documentation of those earnings.

Appellant returned to UTEP for the summer of 2006. There, he completed his degree in communications. Then in September 2006, Appellant was contracted to play for a team in Italy. The contract was for an eight-month season, beginning in September 2006 and ending in April 2007. According to Appellant, he earned $1,600 each month, and the team provided him with a furnished two-bedroom apartment, a car, healthcare, and four round-trip plane tickets to the United States. Appellant's contract was renewed for a second season with an alleged increased pay of $1,700 each month, beginning September 2007 and lasting until May 2008. Contending that he made less than minimum wage, Appellant noted that his sister sent him money periodically. However, Appellee testified that Appellant told her that he made between $80,000 and $90,000 in the first season, that he was a "hot commodity," that the team wanted him to stay for a second season, and that he would not take less than $130,000 for the second season.

During the summer months in 2007, Appellant returned to El Paso, but did not work, believing that because he played nine hard months, he was not obligated to work during the summer. Appellant did not do anything else to supplement his income. While in El Paso, he bought a house with his fiancee for $159,125. According to Appellant, his sister contributed $20,000 to the house, which she paid to him *664 in installments of $10,000, $5,000, $3,000, and $2,000.

Procedural History

After Appellee filed her petition to adjudicate paternity and assess child support, the matter was referred to the associate judge. The associate judge recommended that Appellant pay $410 per month in child support, and $3,500 in arrears. Appellee appealed the associate judge's recommendations, asserting that neither the monthly child support nor the arrearage was calculated in accordance with the statutory child-support guidelines. The referring court determined that the application of the guidelines would be unjust or inappropriate in this case, found that Appellant had net resources of $2,200, imputed income to Appellant in the amount of $7,000 per month, and ordered Appellant to pay $1,500 per month in child support and $30,172.94 in arrears. Appellant submitted findings of fact for the court, and the referring court adopted those verbatim.

SUFFICIENCY OF THE EVIDENCE

In Issues One, Three, and Six, Appellant contends that the evidence is legally and factually insufficient to support the referring court's findings. Specifically, Appellant challenges the referring court's determination of net resources in the amount of $2,200 (Issue One), an income imputation of $7,000 per month (Issue Three), and an arrearage amount of $30,172.94 (Issue Six). After reviewing the record, we find the evidence both legally and factually sufficient to support the findings.[1]

Standard of Review

When considering the legal sufficiency of the evidence, we review 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). In so doing, we remain 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. Accordingly, when the evidence is conflicting, it is *665 the province of the trier of fact to resolve the conflict. Id. at 820. Moreover, it is the province of the trier of fact to draw from the undisputed evidence whatever inferences it wishes so long as more than one inference is possible. Id. at 821. However, if the evidence allows only one inference, neither the trier of fact nor the reviewing court may disregard it. Id. "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." In re J.A.H., 311 S.W.3d 536, 540 (Tex.App.-El Paso 2009, no pet.).

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Bluebook (online)
335 S.W.3d 660, 2011 WL 263728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-nt-texapp-2011.