in the Interest of M.A.B., a Child

• Court: Court of Appeals of Texas
• Decided: April 6, 2006
• Docket: 11-05-00034-CV
• Status: Published

Opinion

Opinion filed April 6, 2006

Opinion filed April 6, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-05-00034-CV

                             IN THE INTEREST OF M.A.B., A CHILD

                                         On Appeal from the 358th District Court

                                                           Ector County, Texas

                                                Trial Court Cause No. D-114,293

                                             M E M O R A N D U M  O P I N I O N

This appeal arises from a suit affecting the parent-child relationship.  We affirm.

The attorney general filed suit against Seferino Lopez Besares, the child=s father, to obtain court-ordered child support payments from him.  An associate judge entered an order on December 1, 2003, which required appellant to pay child support in the amount of $504 per month.  The associate judge based this award on a determination that appellant had monthly net resources of $2,880. 

On December 2, 2003, appellant timely filed a notice of appeal.  See Tex. Fam. Code Ann. ' 201.015(a) (Vernon 2002).  The trial court subsequently entered an order on May 26, 2004, dismissing the case for want of prosecution.  The trial court later reinstated the appeal in an order entered on June 8, 2004.  A hearing on the appeal of the associate judge=s order occurred on January 10, 2005.  The trial court signed an order on January 20, 2005, approving the associate judge=s order entered on December 1, 2003.  Appellant attacks the child support award in a single issue.

                                                               Jurisdictional Issue

The attorney general has raised a preliminary issue concerning the jurisdiction of the trial court to consider appellant=s appeal of the associate judge=s order.  This issue focuses on an event that occurred during the thirteen-day period between the date the trial court dismissed the case for want of prosecution (May 26, 2004) and the date the trial court reinstated the case (June 8, 2004).

The attorney general filed a motion for judgment nunc pro tunc on June 2, 2004, regarding the associate judge=s order entered on December 1, 2003.  The attorney general asserted in the motion that two dates in the associate judge=s order needed to be corrected.  The trial court entered an order on June 2, 2004, which granted the motion for judgment nunc pro tunc.  This order provided in relevant part as follows:

On June 2, 2004, the Court considered the ATTORNEY GENERAL=S OFFICE=S Motion for Judgment Nunc Pro Tunc.

IT IS ORDERED that a Judgment Nunc Pro Tunc be entered as follows:

See Attached.

A corrected copy of the associate judge=s order was attached to the trial court=s order granting the motion for judgment nunc pro tunc. 

The attorney general makes the following assertion regarding the trial court=s order granting the motion for judgment nunc pro tunc:  ABy signing this order, the trial court made the [associate judge=s] recommended order, as changed, the >Judgment Nunc Pro Tunc= of the court.@^[1]  We disagree. 

While a corrected copy of the associate judge=s order is attached to the order granting the motion, there is no language in the order whereby the trial court expressly adopted the associate judge=s order as the order of the trial court.  Absent language to this effect, the trial court=s order granting the motion for judgment nunc pro tunc did not transform the associate judge=s order into an order of the trial court.  The attachment of the corrected associate judge=s order to the order granting the motion for judgment nunc pro tunc simply served as a method for memorializing the correction of the associate judge=s order.

                                              Determination of Child Support Amount

In his sole issue, appellant contends that the trial court miscalculated his monthly net resources to be $2,880.  He essentially challenges the sufficiency of the evidence supporting the trial court=s determination of his average monthly gross resources.  See Tex. Fam. Code Ann. ' 154.061 (Vernon Supp. 2005).

A court=s order of child support will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion.  Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re L.R.P., 98 S.W.3d 312, 313 (Tex. App.CHouston [1st Dist.] 2003, pet. dism=d).  In making this determination, the reviewing court must view the evidence in the light most favorable to the actions of the trial court and indulge every legal presumption in favor of the judgment. Nordstrom v. Nordstrom, 965 S.W.2d 575, 578 (Tex. App.CHouston [1st Dist.] 1997, pet. denied); In re S.B.C., 952 S.W.2d 15, 17-18 (Tex. App.CSan Antonio 1997, no writ). If there is some evidence of a substantive and probative character to support the judgment, the trial court did not abuse its discretion. Nordstrom, 965 S.W.2d at 578; In re S.B.C., 952 S.W.2d at 18.  Under the abuse of discretion standard, legal and factual insufficiency are not independent reversible grounds but are relevant components in assessing whether the trial court abused its discretion. In re L.R.P., 98 S.W.3d at 313.

Appellant argues on appeal that the trial court erred in calculating his net monthly resources to be $2,880 because his oral testimony and tax returns indicate that his annual income never exceeded $10,000.  He testified that he is a self-employed owner/operator of an automobile paint and body shop.  His 2001 tax return listed an adjusted gross income of $7,072, and his 2002 tax return listed an adjusted gross income of $9,196.  Appellant also testified that his income in 2003 was Aabout $10,000.@ However, appellant also testified that he deducted all of his personal expenses as business expenses on his taxes, including his house payments, utilities, and auto expenses.  He testified that Ahis bills@ amounted to $26,000 to $28,000 a year.

The record does not establish that the trial court abused its discretion in determining appellant=s net monthly resources.  In light of appellant=s testimony that he deducted several thousand dollars of his personal expenses as business expenses on his taxes, the trial court was justified in determining that appellant=s actual income was much greater than the adjusted gross income listed on his tax returns.  See Hudson v. Markum, 948 S.W.2d 1, 3-4 (Tex. App.CDallas 1997, writ den=d).  We note in this regard that appellant listed a gross income of $45,978 on Schedule C of his 2002 income tax return.  Appellant=s sole issue is overruled.

                                                               This Court=s Ruling

The trial court=s judgment is affirmed.

TERRY McCALL

JUSTICE

April 6, 2006

Panel consists of: Wright, C.J., and

McCall, J., and Strange, J.

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^[1]The attorney general contends that neither the trial court nor this court has jurisdiction to review the associate judge=s award because appellant did not challenge or appeal the trial court=s order granting the motion for judgment nunc pro tunc.