in the Interest of A. M. K.

• Court: Court of Appeals of Texas
• Decided: November 10, 2005
• Docket: 14-03-01308-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed November 10, 2005

Affirmed and Memorandum Opinion filed November 10, 2005.

In The

Fourteenth Court of Appeals

_______________

NO. 14-03-01308-CV

IN THE INTEREST OF A. M. K.

On Appeal from the 314th District Court

Harris County, Texas

Trial Court Cause No. 95‑45441

M E M O R A N D U M   O P I N I O N

Appellant, Andrew C. Kyle, IV, and appellee, Lori Gober, were previously appointed joint managing conservators of their child.  Appellant was ordered to pay child support and maintain medical insurance for the child or pay appellee to maintain the insurance.  Appellee subsequently filed a motion to modify child support and a request for enforcement seeking child support arrearages and medical insurance arrearages.  Following a bench trial, the trial court increased the child support, entered judgment for child support arrearages and medical insurance arrearages, and ordered appellant to pay appellee=s attorney=s fees.  In his original brief, appellant contends the trial court erred by (1) failing to file findings of fact, (2) increasing child support, (3) entering judgment for child support arrearages and medical insurance arrearages, (4) ordering appellant to pay attorney=s fees, (5) admitting evidence, and (6) considering a misrepresentation by appellee=s counsel.  Appellant has also filed a supplemental brief contending (1) he has discovered new evidence showing appellee filed false information in the trial court, and (2) the trial court had no authority to consider appellee=s request for enforcement.^[1]  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

Incomplete Reporter=s Record

As a preliminary matter, the reporter=s record is incomplete because it does not include the exhibits admitted at trial.  If an appellant requests a partial reporter=s record, he must include in the request a statement of the issues to be presented on appeal and will then be limited to those issues.  Tex. R. App. P. 34.6(c)(1).  If the appellant complies with Rule 34.6(c)(1), we must Apresume that the partial reporter=s record designated by the parties constitutes the entire record for purposes of reviewing the stated points or issues.@  Tex. R. App. P. 34.6(c)(4); see Mason v. Our Lady Star of the Sea Catholic Church, 154 S.W.3d 816, 819 (Tex. App.CHouston [14th Dist.] 2005, no pet); London v. London, 94 S.W.3d 139, 143 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  On the other hand, if an appellant appeals with a partial reporter=s record but fails to comply with Rule 34.6(c)(1), we must presume that the omitted portions are relevant and support the trial court=s judgment.  See Mason, 154 S.W.3d at 819; London, 94 S.W.3d at 143; see also Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002).

Here, the record indicates appellant did not file any request for a partial reporter=s record, much less a request that complied with rule 34.6(c)(1).   However, the court reporter has informed us that appellant refused to pay for exhibits to be included in the record.  Therefore, he effectively appeals with an incomplete record but has not complied with rule 34.6(c)(1).  Consequently, we must presume that the missing exhibits are relevant and support the trial court=s judgment.  See Mason, 154 S.W.3d at 819; London, 94 S.W.3d at 143. We will consider appellant=s issues encumbered with this presumption.

Findings of Fact

In his first issue, appellant complains that the trial court did not make findings of fact pursuant to section 154.130(a)(3) of the Texas Family Code.  Section 154.130(a)(3) requires a trial court to make findings if the amount of child support ordered varies from the amount computed by applying the percentage guidelines.  Tex. Fam. Code Ann. ' 154.130(a)(3) (Vernon 2002).  Here, the record reflects the trial court did apply the percentage guidelines.  The trial court made an oral finding that appellant is intentionally underemployed and, thus, determined appellant=s earning potential.  See Tex. Fam. Code Ann. ' 154.066 (Vernon 2002).  The trial court then subtracted taxes and the cost of the child=s medical insurance to determine appellant=s net monthly resources.  See Tex. Fam. Code Ann. ' 154.062 (Vernon 2002).  The court then found that appellant supports one other child and, thus, applied the percentage guidelines for computing support for children in more than one household.  See Tex. Fam. Code Ann. ' 154.129 (Vernon 2002).  Consequently, because the trial court applied the percentage guidelines, it was not required to make findings pursuant to section 154.130(a)(3).^[2]  We overrule appellant=s first issue.

Increased Child Support

In his second issue, appellant contends the trial court erred by increasing his child support obligation.  We review a trial court=s order modifying child support for abuse of discretion.  In re D.S., 76 S.W.3d 512, 516 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  The test for abuse of discretion is whether the court acted arbitrarily or unreasonably without reference to guiding rules and principles.  Id.  Legal and factually sufficiency are not independent grounds of error; rather, they are relevant factors in assessing whether a trial court abused its discretion.  Newberry v. Bohn‑Newberry, 146 S.W.3d 233, 235 (Tex. App.CHouston [14th Dist.] 2004, no pet.).  A trial court does not abuse its discretion where some evidence of probative and substantive character supports its order.  Id. 

            A court may modify a child support order Aif the circumstances of the child or a person affected by the order have materially and substantially changed since the . . . date of the order=s rendition.@  See Tex. Fam. Code Ann. ' 156.401(a)(1) (Vernon Supp. 2005). Here, the trial court found that there had been a Asubstantial and material change in the circumstances@ of appellant, appellee, and/or the child since entry of the original order.  Appellant challenges this finding arguing there is no evidence of the parties= financial circumstances at the time of the original order.  However, because appellant presents an incomplete reporter=s record, we must presume that the omitted evidence supports the trial court=s finding.  See Mason, 154 S.W.3d at 819; London, 94 S.W.3d at 143.  Accordingly, we overrule appellant=s second issue.

Arrearages

In his third issue, appellant contends the trial court erred by entering judgment for child support arrearages and medical insurance arrearages.  We review a trial court=s confirmation of arrearages for abuse of discretion.  See Beck v. Walker, 154 S.W.3d 895, 901 (Tex. App.CDallas 2005, no pet.); Attorney Gen. of Tex. v. Stevens, 84 S.W.3d 720, 722 (Tex. App.CHouston [1st Dist.] 2002, no pet.).

First, appellant argues there is insufficient evidence to support the trial court=s calculation of $4,000 in child support arrearages.  According to appellant, appellee offered one or more exhibits prepared by the Texas Attorney General=s office to prove the amount of arrearages.  Appellant claims the amount reflected on the exhibit(s) was incorrect and did not reflect all of his past payments because a page was missing, the exhibit(s) contained clerical errors, some payments were credited to the wrong account, and some payments were not even credited.  Because the exhibit(s) are not included in the reporter=s record, we cannot determine whether appellant=s complaints are meritorious.  Instead, we must presume that the exhibit(s) and other omitted evidence support the trial court=s calculation of arrearages.  See Mason, 154 S.W.3d at 819; London, 94 S.W.3d at 143.

            Next, appellant asserts there is insufficient evidence to support the judgment for $2,595 in medical insurance arrearages because appellee did not give appellant monthly notice of her request for medical insurance reimbursement as required by the original order, and the amount of the award is incorrect.  Again, we must presume the omitted evidence supports the trial court=s finding that appellee was entitled to medical insurance arrearages and the trial court=s calculation of the amount of arrearages.  See Mason, 154 S.W.3d at 819; London, 94 S.W.3d at 143.

Finally, we note that at trial, appellant agreed to the amounts for child support and medical insurance arrearages which he now challenges.  Nevertheless, appellant contends he was forced to agree to the amounts because the trial court improperly Arushed@ the trial.  In particular, appellant asserts that the trial court determined arrearages without waiting for an Attorney General representative, who would have confirmed additional child support payments, to return from lunch.^[3]  Appellant also asserts that the trial court did not allow appellant an opportunity to call appellee as a witness before determining arrearages.  Therefore, appellant apparently raises additional complaints that the manner in which the trial court conducted the trial resulted in an incorrect calculation of arrearages, and the trial court excluded testimony. 

However, the record reflects that the trial court heard testimony from the only two witnesses offeredCappellant and his wife.  Then, the trial court held a discussion with both counsel during which appellant=s counsel agreed to the amounts of arrearages.^[4]  Appellant did not object to the trial court=s determining arrearages at that time, did not request additional time to call an Attorney General representative or appellee as witnesses, and did not otherwise object to the manner in which the trial court conducted the trial. Accordingly, he has waived these complaints.  See Tex. R. Civ. P. 33.1(a).  We overrule appellant=s third issue.

Attorney=s Fees

In his fourth issue, appellant argues that the trial court erred by ordering him to pay $5,625 in attorney=s fees.  We review an award of attorney=s fees in the nature of child support for abuse of discretion.  See Hardin v. Hardin, 161 S.W.3d 14, 24B25 (Tex. App.CHouston [14th Dist.] 2004, no pet.).

First, appellant contends attorneys= fees may not be awarded when a party prevails on a motion to modify.  Although appellee=s pleading was entitled AMotion to Modify,@ she included a request for enforcement of arrearages.  Irrespective of the title of the pleading, the trial court awarded attorneys= fees with respect to appellee=s request for enforcement.  The Family Code provides that a trial court Ashall@ order a respondent to pay the movant=s reasonable attorney=s fees if it finds the respondent has failed to make child support payments, although the trial court may waive this requirement for Agood cause.@  Tex. Fam. Code Ann. ' 157.167 (Vernon Supp. 2005).  Accordingly, the trial court did not abuse its discretion by awarding attorney=s fees.^[5]

Appellant also suggests there is insufficient evidence to prove the reasonableness of attorney=s fees.  The reasonableness of attorney=s fees is a question of fact to be determined by the trier of fact and must be supported by competent evidence.  Tull v. Tull, 159 S.W.3d 758, 760 (Tex. App.CDallas 2005, no pet.).  There is no abuse of discretion where an award of attorney=s fees is supported by the evidence.  Id.  Appellant contends that appellee=s counsel did not offer an affidavit or his own testimony to prove the fees were reasonable and a Ashorthand rendition@ admitted to prove attorney=s fees was illegible.  The record reflects that the trial court did admit a Ashorthand rendition@ of attorney=s fees.  However, because the Ashorthand rendition@ is not included in the reporter=s record, we cannot determine whether it was legible or whether it proves the reasonableness of the attorney=s fees.  Instead, we must presume the Ashorthand rendition@ and other omitted exhibits support the attorney=s fees award.  See id. at 761 (presuming exhibit introduced to prove attorney=s time on child support/custody case supported award of attorney=s fees because document was omitted from  appellate record and opposing party did not follow rules for submitting incomplete record); see also Mason, 154 S.W.3d at 819; London, 94 S.W.3d at 143.

In addition, appellant complains that he was denied an opportunity to cross-examine appellee=s counsel regarding the Ashorthand rendition.@  However, the record reflects that appellee=s counsel was effectively cross-examined on the only subject requested by appellant. The trial court specifically inquired regarding appellant=s reasons for cross-examination of appellee=s counsel.  Appellant=s counsel responded that he wanted to ask whether the fees were incurred to persuade appellant to voluntarily terminate his parental rights.^[6]  The trial court asked appellee=s counsel for his answer, and appellee=s counsel denied the allegation.  At that point, appellant=s counsel made no further request to cross-examine appellee=s counsel and no objection to the trial court=s determining attorney=s fees without further cross-examination.  Therefore, appellant has waived his complaint.  See Tex. R. Civ. P. 33.1(a).  We overrule appellant=s fourth issue.

Admission of Evidence

In his fifth issue, appellant argues his due process rights were violated by the trial court=s admission of a credit application and pictures of appellant=s house and boat because appellee did not produce them in response to discovery requests, and the pictures were prejudicial.  Assuming these exhibits were admitted, appellant cites no reference in the record where he objected to their admission.  Accordingly, he has waived his complaint.  See Tex. R. Civ. P. 33.1(a).  We overrule appellant=s fifth issue.

Misrepresentation by Appellee=s Counsel

In his sixth issue, appellant contends appellee=s counsel made a misrepresentation regarding a deduction on appellant=s tax return and the trial court considered the misrepresentation when determining the amount of child support.  However, the alleged misrepresentation was merely argument, and argument of counsel is not evidence.  See Kern v. Gleason, 840 S.W.2d 730, 734 (Tex. App.CAmarillo 1992, orig. proceeding).  Thus, appellant has not shown the trial court abused its discretion with respect to the alleged misrepresentation.  We overrule appellant=s sixth issue.

Supplemental Issues

Appellant has filed a supplemental letter brief asserting four issues.  His second and third supplemental issues are actually further argument on his original issues pertaining to child support arrearages and the trial court=s allegedly rushing the trial.  Because we have addressed these arguments, we overrule his second and third supplemental issues.

However, appellant makes new arguments in his first and fourth supplemental issues.^[7]  In his first supplemental issue, appellant suggests he has discovered new evidence showing appellee filed a false AFamily Income Worksheet,@ her income is higher than reflected on the worksheet, and her higher income was relevant to the child support determination.  However, appellant did not preserve error by bringing the newly discovered evidence to the trial court=s attention in his motion for new trial.  See Tex. R. Civ. P. 324(b)(1) (providing that party must file motion for new trial to preserve complaint regarding newly discovered evidence).  Accordingly, we overrule his first supplemental issue.

Finally, in his fourth supplemental issue, appellant contends the trial court had no authority to rule on appellee=s request for enforcement because her pleading was a motion to modify.@^[8]  Again, although appellee=s pleading was entitled AMotion to Modify,@ she included a request for enforcement of arrearages.  We look to the substance, not merely the title, of a pleading to determine its nature  In re J.N.F., 116 S.W.3d 426, 433 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (citing State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980)).  Consequently, because appellant pleaded for enforcement of child support arrearages, the trial court had authority to consider her request.  We overrule appellant=s fourth supplemental issue.

The judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed November 10, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman.

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^[1]  The trial court also ordered appellant to pay arrearages for the child=s uninsured medical expenses, but he does not appeal that ruling.

^[2]  In his reply brief on this issue, appellant argues he was not intentionally underemployed and his income was less than the earning potential found by the trial court.  However, this argument is actually a separate challenge to the trial court=s calculation of his resources, rather than an argument that the trial court failed to apply the percentage guidelines to his resources.  Nonetheless, without a complete reporter=s record, we must presume the omitted evidence supports the trial court=s finding regarding appellant=s intentional underemployment and earning potential.  See Mason, 154 S.W.3d at 819; London, 94 S.W.3d at 143.

^[3]  Appellant makes a different assertion in his supplemental brief.  He suggests that because the trial court rushed the trial, court personnel had to find an Attorney General representative, but the representative was unfamiliar with the case and had incomplete information regarding appellant=s payments.  In any event, he asserts the trial court determined arrearages without complete information from the Attorney General.

^[4]  During the discussion, the primary disputed issue was modification of child support.

^[5]  We note there has been disagreement among appellate courts on whether attorney=s fees may be awarded in a suit for modification.  See Hardin, 161 S.W.3d at 25B27.  However, we recently held that attorney=s fees may be awarded in a suit for modification.  See id.  Regardless, here, the attorney=s fees were ordered with respect to enforcement of arrearages.

^[6]  At trial, appellant suggested appellee filed her motion to persuade appellant to voluntarily terminate his parental rights so the child could be adopted by her stepfather.

^[7]  We have discretion whether to consider new issues raised in a supplemental brief.  See Tex. R. App. P. 38.7; Standard Fruit and Vegetable Co., Inc. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998).  Because we can easily dispose of appellant=s new issues, we will consider them.

^[8]  This issue is different than his original complaint that the trial court could not order attorney=s fees because appellee=s pleading was a motion to modify.  Appellant now suggests the trial court had no authority to consider appellee=s request for enforcement at all because the pleading was a motion to modify.