NUMBER 13-22-00016-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF G.M.K., A CHILD
On appeal from the 267th District Court of Victoria County, Texas.
MEMORANDUM OPINION
Before Justices Tijerina, Silva, and Peña Memorandum Opinion by Justice Silva
Appellant Jared appeals the trial court’s order modifying the parent-child
relationship. 1 By three issues, Jared argues that the trial court erred by denying his
motion to modify his child support obligation to appellee Kathleen because (1) he
provided sufficient evidence to show a material and substantial change in circumstances;
1 We refer to the parties and child by aliases in accordance with the rules of appellate procedure.
See TEX. R. APP. P. 9.8(b)(2), cmt. (2) the trial court applied the incorrect standard for child support modification; and (3) the
trial court did not provide him with a fair and impartial trial because it was biased. We
affirm.
I. BACKGROUND
Jared filed a petition to modify the parent-child relationship, asking the trial court
to provide him with certain independent rights of the child, Gage; begin his periods of
possession from the time school releases; and reduce his child support obligation. The
order that Jared sought to modify established his child support obligations at $1,146 per
month as well as requiring him to maintain health insurance for Gage. 2 Kathleen
answered and generally denied Jared’s allegations.
The trial court entered a temporary order, reducing Jared’s monthly child support
obligation to $923, providing him the independent rights he requested, and modifying
Jared’s periods of possession to begin when Gage’s school releases. After a bench trial,
the trial court adopted the agreed temporary order as its final order. We summarize the
relevant testimony from trial below.
Jared testified that he was no longer working for his previous employer and was
“going on long-term disability,” which would pay him sixty-seven percent of his previous
base salary. Jared explained that he had undergone two hip surgeries in November and
December of 2020 that did not heal correctly, preventing him from returning to work. Jared
stated that his gross income in 2019 was about $134,000, but he did not know what his
The order does not establish Jared’s possession schedule and any order that does was not 2
included in the record before us.
2 net resources were. Jared “guessed” that his net resources for 2019 were $92,000. Jared
further estimated that his gross income for 2020 “[m]ay have cleared a hundred.” When
asked if he was able to work at all, Jared stated, “I have no ability to do the career path
that I’m on right now.” However, Jared subsequently acknowledged that he would be able
to work but did not believe he would be able to earn the amount he previously earned.
On cross examination, Jared agreed that he drives from Harris County to Victoria
and Goliad Counties to visit his children and that he could hypothetically earn income
driving professionally, but he did not have the license or certifications to do so. Jared
explained that his long-term disability insurance had a two-year limit on it. Jared stated
that he possessed a home, a vehicle, and a 401(k) savings plan that held approximately
$130,000. 3
In his closing argument, Jared asked the trial court to set his child support at $651,
“based off [his] current $5,070.81 a month income.” The trial court denied Jared’s
requested modification and entered a final order setting child support at the amount
agreed on by the parties in the temporary order. Jared requested findings of fact and
conclusions of law, which the trial court ultimately entered. This appeal followed.
II. CHILD SUPPORT MODIFICATION
By his first issue, Jared argues the trial court erred by denying his request to modify
child support because he presented sufficient evidence to show a material and substantial
change in circumstances. By his second issue, Jared argues the trial court applied the
incorrect legal standard when considering modifying child support. We consider both
3 Kathleen also testified, but her testimony is not relevant to the disposition of this appeal.
3 issues together.
A. Applicable Law
A trial court may order a parent to financially support the child through the child’s
eighteenth birthday or until high school graduation, whichever is later. TEX. FAM. CODE
ANN. § 154.001(a)(1). A trial court is required to calculate the amount of child support
owed based on a parent’s “net resources.” Id. § 154.062(a). Resources include:
(1) 100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses);
(2) interest, dividends, and royalty income;
(3) self-employment income;
(4) net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including noncash items such as depreciation); and
(5) all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits other than supplemental security income, United States Department of Veterans Affairs disability benefits other than non-service-connected disability pension benefits, as defined by 38 U.S.C. [§] 101(17), unemployment benefits, disability and workers’ compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony.
Id. § 154.062(b). The trial court should then deduct social security taxes, state and federal
income taxes, and expenses for the cost of health insurance, dental insurance, or cash
medical support for the obligor’s child. Id. § 154.062(d)(1)–(5). The remaining amount is
an obligor’s net resources. Id. § 154.062(d). The trial court shall require parties to
“(1) furnish information sufficient to accurately identify that party’s net resources and
ability to pay child support; and (2) produce copies of income tax returns for the past two 4 years, a financial statement, and current pay stubs.” Id. § 154.063.
If the circumstances of the child or a person affected by a child support order have
materially and substantially changed or it has been three years since the prior order and
the amount of support would change by $100 or 20% per month, the trial court may modify
child support. Id. § 156.401(a). “The party requesting the modification bears the burden
to show such a change in circumstances.” In re N.H.N., 580 S.W.3d 440, 445 (Tex. App.—
Houston [14th Dist.] 2019, no pet.).
B. Standard of Review
We review a trial court’s denial to modify child support for an abuse of discretion.
Id. A trial court abuses its discretion when it acts arbitrarily or unreasonably—without
reference to guiding rules and principles. Id. “Under this standard, the legal and factual
sufficiency of the evidence are not independent grounds of error but are merely factors in
determining whether the trial court abused its discretion.” Id. When a trial court fails to
find a material and substantial change, we will find the evidence supporting its conclusion
legally insufficient only if the evidence conclusively established that there has been such
a change. Id. (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per
curiam)). “When considering the factual sufficiency of the evidence of a material and
substantial change of circumstances, we review the entire record to determine whether
the great weight and preponderance of the evidence show that there has been such a
change.” Id. (citing Dow Chem. Co., 46 S.W.3d at 242).
“When the appellate record contains a complete reporter’s record, an appellate
court reviews the trial court’s findings of fact under the same standards for legal and
5 factual sufficiency that govern the review of jury findings.” Reisler v. Reisler, 439 S.W.3d
615, 620 (Tex. App.—Dallas 2014, no pet.). “In an appeal from a bench trial, an appellate
court reviews a trial court’s conclusions of law de novo and will uphold them on appeal if
the judgment of divorce can be sustained on any legal theory supported by the evidence.
Id. at 619 (citing Mays v. Mays, No. 13-05-00558-CV, 2007 WL 776684, at *2 (Tex. App.—
Corpus Christi–Edinburg Mar. 15, 2007, pet. denied) (mem. op.)). “If an appellate court
determines that a conclusion of law is erroneous, but the trial court nevertheless rendered
the proper judgment, the error does not require reversal.” Id. at 619–620 (citing Mays,
2007 WL 776684, at *2).
C. Analysis
Jared challenges several findings of fact for legal and factual sufficiency. Those
findings include “that [Jared] failed to offer sufficient evidence to prove his [g]ross
[m]onthly [r]esources” and “that [Jared] did not present sufficient evidence to accurately
identify his net resources.” 4 While Jared acknowledges that an obligor may provide his
gross monthly resources from which net monthly resources may be calculated, see TEX.
4 The trial court made similar conclusions of law:
2. The Court concludes that the burden of showing a material and substantial change of circumstances was on [Jared].
3. The Court concludes that to show a substantial and material change of circumstances, the moving party must present evidence of the conditions that existed at the time of the order being modified, and the conditions that existed at the time the modification is sought.
....
7. The Court finds and concludes that [Jared] failed to offer sufficient evidence that any change in his circumstances was anything other than a temporary change; failed to offer sufficient evidence to accurately identify his resources and ability to pay child support.
6 FAM. CODE ANN. § 154.061, he argues that “[t]here is no requirement that in a modification
proceeding the obligor provide BOTH.”
Although we agree with Jared that nothing in the family code requires that an
obligor provide both monthly gross and net resources, an obligor who moves to modify
his child support does bear the burden to show the change in circumstances—specifically,
his net monthly resources. See In re N.H.N., 580 S.W.3d at 445. Here, although Jared
testified his pay was reduced to 67% of his base pay, he did not provide clear evidence
of either his gross or net monthly resources. See TEX. FAM. CODE ANN. § 154.063; In re
N.H.N., 580 S.W.3d at 445. Rather, he provided varying amounts of income that he had
received over the last couple of years, ranging from approximately $134,000 per year to
$7,000 per month. In Jared’s closing request to the trial court, he asked that his child
support obligation be based off his “current $5,070.81 a month income, which [he]
believe[d] [would] take [his obligation] down to $651 a month.” Even assuming this
amount had been presented in evidence, it is not clear whether his monthly income
constitutes gross or net resources. See TEX. FAM. CODE ANN. §§ 154.061, 154.062.
Further, Jared failed to produce any evidence of amounts that would be deducted from
his gross resources to establish his net monthly resources, such as health care or dental
coverage for his children. 5 See id. § 154.062(d). Accordingly, we conclude that the trial
court’s finding that Jared failed to present sufficient evidence is supported by the record.
See In re N.H.N., 580 S.W.3d at 445; Reisler, 439 S.W.3d at 620. Jared’s first issue is
5 We note that although the trial court found that Jared had an obligation to support two other minor
children. See TEX. FAM. CODE ANN. § 154.128. As neither party challenges this finding, we are bound by this finding even though there is no evidence to support it. See Tex. Champps Americana, Inc. v. Comerica Bank, 643 S.W.3d 738, 747 (Tex. App.—Dallas 2022, pet. denied).
7 overruled.
By his second issue, Jared argues that the trial court applied the wrong legal
standard when it modified his child support amount. Namely, Jared posits that the trial
court applied the standards relating to contempt proceedings for failure to pay child
support through the following findings:
16. The Court finds that [Jared] did not show that he did not have other assets he could sell or liquidate in order to meet the reduced child support obligation.
17. The Court finds that [Jared] had other assets he could liquidate to meet his child support obligation, specifically a 401k.
21. The Court finds that [Jared] has failed to exercise all reasonable efforts to meet the reduced child support obligation and concludes that the requested modification should be denied.[ 6]
While these findings appear to reflect the affirmative defense to a motion for contempt for
failure to pay child support, see TEX. FAM. CODE ANN. § 157.008(c), we need not address
the findings insofar as they demonstrate that the trial court applied the incorrect standard.
See TEX. R. APP. P. 44.1(a); In re Commitment of Jones, 602 S.W.3d 908, 913–15 (Tex.
2020) (per curiam); Reisler, 439 S.W.3d at 619–20. Here, because we conclude there is
sufficient evidence to support the trial court’s finding that Jared failed to meet his burden,
we cannot say the extraneous findings relating to his assets, rather than his resources,
“probably caused the rendition of an improper judgment.” See TEX. R. APP. P. 44.1(a); In
re Commitment of Jones, 602 S.W.3d at 913–15. Jared’s second issue is overruled.
6 Jared cites other findings of fact and conclusions of law to support his contention, which we find
unnecessary to review as they are not dispositive. See TEX. R. APP. P. 47.4.
8 III. JUDICIAL BIAS
By his third issue, Jared argues the trial court “made multiple remarks and
questioned [Jared] directly in a manner that would lead any reasonable person to
conclude the trial was not conducted in a fair and impartial manner.” Moreover, Jared
argues that “at times the [trial] court was actively advocating against [Jared] and in favor
of [Kathleen], the child’s mother, in a clear breach of its duties as a trial judge.” Kathleen
argues that Jared failed to preserve this issue and, even if it were preserved, the trial
court did not show a deep-seated antagonism such that would require reversal.
A. Complained-of Conduct
Here, some of Jared’s complained-of questions by the trial court may be indicative
of the court’s attempt to elicit information or evidence relating to intentional unemployment
or underemployment See TEX. FAM. CODE ANN. § 154.066(a) (“If the actual income of the
obligor is significantly less than what the obligor could earn because of intentional
unemployment or underemployment, the court may apply the support guidelines to the
earning potential of the obligor.”). For example, the following colloquy occurred after
Kathleen cross-examined Jared on his ability to work:
THE COURT: What have you done to better yourself in these previous years from 2016 so that you just won’t just be someone that’s on the government take?
[Jared]: Actually, I’ve taken quite a few classes and trainings and stuff like that with the company I was with. I was hoping to—
THE COURT: So why didn’t you go and get a truck driver’s license? They make good money. You can drive. You could do that; and that would better your lot, would it not? 9 [Jared]: I already had a good job and a good life and a good financial outlook prior to the injuries, and I don’t know that—
THE COURT: I’m not talking about prior.
[Jared]: No. I don’t know that being a truck driver would help with the hips that are slightly repaired and will need replacement.
THE COURT: Well, I thought we established earlier that you can drive from Houston down to Victoria; you can drive to Goliad; but now if you get in a truck and drive it for money, it’s going to hurt your hips. Does that sound reasonable?
[Jared]: No, sir. There’s a difference from driving a passenger vehicle for a few hours once a week or twice a week—
THE COURT: Finish whatever you want to tell me, please.
[Jared]: Okay. I’m going to college right now to finish—to stay in the same[,] similar line of work. I was looking to get other job promotions within the company.
THE COURT: Whoa, whoa, wait. Wait. You lost me. You’re going to college so you can do similar work. You mean when you graduate from college, you’ll be able to drive a truck without your hips hurting—
[Jared]: No, sir.
THE COURT: —but you can’t now?
[Jared]: I am in an oil field and gas industry.
THE COURT: Well, you just said, “When I finish my college, then I can work what I used to be able to work.”
[Jared]: Similar field, not similar role. It’s a completely different capacity, sir.
THE COURT: “Similar field,” what does that mean?
[Jared]: Right now, I’m working in hydrocarbons and oil field—I
10 mean—not oil field. I’m sorry—oil refineries, chemical fields, chemical plants as an operator.
Jared also points to portions of the record during Kathleen’s testimony, arguing
that it demonstrates the trial court was “advocating” on Kathleen’s behalf. During an
exchange between Jared and Kathleen, Jared asked, “You do realize you’re under oath
today, [Kathleen]?” The trial court intervened:
THE COURT: Ma’am—sir, ask your questions.
[Jared]: Okay.
THE COURT: Don’t try to intimidate her with—
[Jared]: No, sir. I’m just—
THE COURT: I—
[Jared]: Okay. I’m sorry.
THE COURT: Did I ask you if you were under oath when you were testifying that you were staying home and not working?
THE COURT: Well, then, don’t do it to her either.
Jared also complains that the trial court interrupted his questioning of Kathleen without
objection from Kathleen:
THE COURT: Is that a question, or is that a statement?
[Jared]: No, sir. I’m asking if—
THE COURT: No. You didn’t ask a question. You said, “Since now you’re getting less than that, this happens.” Ask her a question.
[Jared]: Okay. So it looks to me like your situation—
11 THE COURT: That’s not a question. That’s a statement, “looks to me like.”
[Jared]: Okay. All right. Okay. Well, I guess after that, then, I don’t have anything else, then, your Honor.
THE COURT: All right.
B. Applicable Law
“All parties have a right to a fair and impartial trial before a neutral judge.” Ellason
v. Ellason, 162 S.W.3d 883, 887 (Tex. App.—Dallas 2005, no pet.) (citing Markowitz v.
Markowitz, 118 S.W.3d 82, 86 (Tex. App.—Houston [14th Dist.] 2003, pet. denied));
Earley v. State, 855 S.W.2d 260, 262 (Tex. App.—Corpus Christi–Edinburg 1993) pet.
dism’d improvidently granted 855 S.W.2d 260 (Tex. Crim App. 1994) (citing Gagnon v.
Scarpelli, 411 U.S. 778, 786 (1973)); see U.S. CONST. amend. XIV; TEX. CONST. art. 1,
§ 13. We presume the trial judge was neutral and detached “in the absence of a clear
showing to the contrary.” Earley, 855 S.W.2d at 262.
“Judicial remarks during the course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or
partiality challenge.” Dow Chem. Co., 46 S.W.3d at 240 (citing Liteky v. United States,
510 U.S. 540, 555 (1994)). “Not establishing bias or partiality are expressions of
impatience, dissatisfaction, annoyance, and even anger. A judge’s ordinary efforts at
courtroom administration—even a stern and short-tempered judge’s ordinary efforts at
courtroom administration—remain immune.” Id. (cleaned up).
The Texas Supreme Court has recognized that “the discretion vested in the trial
court over the conduct of a trial is great.” Id. at 240–41. That discretion permits a trial
court to “intervene to maintain control in the courtroom, to expedite the trial, and to prevent 12 what it considers to be a waste of time.” Id. at 241. “In a bench trial, the judge may
question witnesses to clarify facts on an issue that the judge must decide in fulfilling [his]
role as factfinder.” Sklar v. Sklar, 598 S.W.3d 810, 825 (Tex. App.—Houston [14th Dist.]
2020, no pet.); see Trahan v. Trahan, 732 S.W.2d 113, 115 (Tex. App.—Beaumont 1987,
no writ) (citing Stewart v. State, 438 S.W.2d 560 (Tex. Crim. App. 1969)); see also In re
A.T.M., No. 13-21-00008-CV, 2021 WL 2584402, at *19 (Tex. App.—Corpus Christi–
Edinburg June 24, 2021, no pet.) (mem. op.). However, “a trial judge should not act as an
advocate” for another party. Sklar, 598 S.W.3d at 824.
Although parties are entitled to a fair and unbiased trial under both the United
States and Texas Constitutions, even constitutional complaints may be waived by failure
to preserve a complaint. See In re L.M.I., 119 S.W.3d 707, 710–11 (Tex. 2003) (declining
to consider father’s due process violation claim on appeal where he failed to raise it with
the trial court); In re C.T., 749 S.W.2d 214, 217 (Tex. App.—San Antonio 1988, no writ)
(same).
We recently addressed an identical situation and argument in a parental
termination case. See In re A.T.M., 2021 WL 2584402, at *19. In A.T.M., we noted that
“there is a narrow exception to error-preservation rules for certain ‘fundamental’ errors,
including ‘those instances in which error directly and adversely affects the interest of the
public generally, as that interest is declared by the statutes or Constitution of our State.’”
Id. (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006)). Ultimately,
we concluded that “the claimant bears the burden to explain how any comments made by
13 the trial judge were incurable or would excuse the claimant’s failure to preserve error.” Id.
Similarly, here, Jared failed to object to the trial court’s comments or questions and
does not attempt to argue why they were incurable or would excuse his failure to preserve
error. See In re Commitment of Fontenot, 536 S.W.3d 906, 918 (Tex. App.—Houston [1st
Dist.] 2017, no pet.) (citing Dow Chem. Co., 46 S.W.3d at 241); In re Commitment of
Stuteville, 463 S.W.3d 543, 557 (Tex. App.—Houston [1st Dist.] 2015, pet. denied); see
also In re A.T.M., 2021 WL 2584402, at *19. Moreover, Jared does not argue that
preservation was unnecessary because the error was fundamental. 7 See TEX. R. APP. P.
38.1(i); see also In re A.T.M., 2021 WL 2584402, at *19. However, considering the entire
record, we cannot conclude that the trial court’s questions and interruptions of Jared
demonstrated a “deep-seated favoritism or antagonism that would make fair judgment
impossible,” which would be necessary for this Court to reverse the trial court’s judgment.
See Liteky, 510 U.S. at 555; Dow Chem. Co., 46 S.W.3d at 240–41; see also In re A.T.M.,
2021 WL 2584402, at *19; cf. In re L.S., No. 02-17-00132-CV, 2017 WL 4172584, at *16
(Tex. App.—Fort Worth, Sept. 21, 2017, no pet.) (mem. op.) (“[T]he trial judge’s course
of conduct throughout the entire proceeding showed a deep-seated antagonism for
Father that violated Father’s constitutional right to a fair trial, resulting in a judgment that
neither this court nor the public generally could be confident was not improper.”).
Although the trial court’s choice of words appears to express impatience,
7 Jared argues the appropriate standard of review considers (1) whether the trial court in fact committed a judicial impropriety, and (2) if so, whether the complaining party was probably prejudiced. See, e.g., Metzger v. Sebek, 892 S.W.2d 20, 39 (Tex. App.—Houston [1st Dist.] 1994, writ denied). However, Metzger and other similar cases involve comments made by the trial court in the presence of a jury, not a bench trial. See id.
14 annoyance, or dissatisfaction, the record as a whole demonstrates that the trial court was
merely exercising its discretion over the conduct of a trial and fulfilling its role as a
factfinder. See Dow Chem. Co., 46 S.W.3d at 240 (providing expressions of impatience,
dissatisfaction, annoyance, and even anger do not establish bias or partiality); Sklar, 598
S.W.3d at 825. Jared’s third issue is overruled.
IV. CONCLUSION
We affirm the trial court’s judgment.
CLARISSA SILVA Justice
Delivered and filed on the 10th day of August, 2023.