MODIFIED;REVERSE and REMAND and Opinion Filed November 14, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00744-CV
IN THE INTEREST OF S.M.A. AND N.N.F., CHILDREN
On Appeal from the 303rd Judicial District Court Dallas County, Texas Trial Court Cause No. DF-16-07076
MEMORANDUM OPINION Before Justices Schenck, Reichek, and Goldstein Opinion by Justice Reichek In this appeal, Mother challenges the trial court’s final order in a suit to modify
the parent-child relationship.1 Because we conclude the trial court’s findings of fact
do not support its order, we modify the court’s order to conform to its findings of
fact on the issue of child support, and reverse and remand the court’s order regarding
conservatorship, possession, and the parents’ rights and duties for further
proceedings.
1 The Office of the Attorney General of Texas contends in its brief on appeal that Mother is improperly challenging a temporary order rendered by an associate judge prior to trial. It is clear from the issues brought by Mother that she is challenging the final order rendered by the trial court. Accordingly we conclude the Attorney General’s argument that Mother’s appeal is moot, and we lack jurisdiction to address it, is without merit. Background
Mother and Father are the parents of two minor children, S.M.A and N.N.F.
An agreed order establishing the parent-child relationship was entered on June 22,
2017. In the agreed order, Mother and Father were named joint managing
conservators and Father was ordered to pay $620 per month in child support.
On January 17, 2020, Father filed a petition to modify the parent-child
relationship in which he contended circumstances had materially and substantially
changed. Father requested modification of the conservatorship and termination of
the court-ordered support. Mother filed a counter-petition requesting that Father’s
child support obligation be recalculated, a confirmation of Father’s child support
arrearages, and modifications including the appointment of Mother as sole managing
conservator with the exclusive right to make invasive medical decisions, educational
decisions, and consent to the children’s psychiatric and psychological treatment.
A trial before the court was conducted on April 30, 2021. Father failed to
appear. At the conclusion of the hearing, the court orally announced it was denying
both Mother’s and Father’s requested modifications to conservatorship, possession,
and their rights and duties. The court further confirmed child support arrearages in
the amount of $24,082.48 and increased the monthly amount of child support to be
paid by Father to $1,700. The judge signed an order reflecting those rulings one
month later.
–2– Mother timely requested the trial court to make findings of fact and
conclusions of law. Among the findings and conclusions made by the trial court
were the following:
(1) There was a material and substantial change in circumstance of the parties;
(2) Mother presented permissible, uncontroverted testimony regarding Father’s income and resources;
(3) 25% of Father’s net monthly resources is $2,300;
(4) Child support calculated using the Texas Family Code’s guidelines is presumed to be in the best interest of the children;
(5) The trial court may deviate from the guidelines only if evidence rebuts the presumption that application of the guidelines is in the best interest of the children;
(6) No evidence was presented to overcome or rebut this presumption;
(7) If the amount of child support ordered varies from the amount computed by applying the guidelines, the court is required to make findings, including the specific reasons for the variance;
(8) No findings were made as to the specific reasons the amount of support per month ordered by the court varied from the amount computed by applying the percentage guidelines;
(9) After July 16, 2020, Father disappeared from both the litigation and the children’s lives;
(10) Father was properly cited to appear at trial but failed to do so;
(11) At the time of trial, Father had not seen or spoken to the children in nine months;
–3– (12) Father refused to participate in the custody evaluation;
(13) Father presented no evidence at trial that joint managing conservatorship was in the best interest of the children;
(14) Father presented no evidence that standard possession was in the best interest of the children;
(15) Father presented no evidence that a residency restriction to Dallas County was in the best interest of the children.
Father did not object to the trial court’s findings.
Analysis
I. Child Support
In her first issue, Mother contends the trial court’s order awarding her only
$1,700 per month in child support is not supported by either the trial court’s findings
of fact or the evidence submitted at trial. No party in this case has challenged the
trial court’s findings of fact. Therefore, they are binding on this Court on appeal.
See Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex. App.—
Dallas 1993, writ denied).
Findings of fact are the ultimate determinations of all specific inquiries
necessary to establish conduct or the existence or nonexistence of a relevant matter.
Pac. Emp’rs Ins. Co. v. Brown, 86 S.W.3d 353, 356–57 (Tex. App.—Texarkana
2002, no pet.). The judgment rendered by the trial court must conform to the nature
of the case proved. TEX. R. CIV. P. 301. “When the findings of fact do not support
the judgment, the judgment should either be reformed to conform to the findings, or
–4– if appropriate, it should be reversed.” Brown, 86 S.W.3d at 357; 6 McDonald &
Carlson Tex. Civ. Prac. App. Prac. § 18:14 (2nd ed. 1998 & Supp. 2021).
The guidelines established by the Texas Family Code state that, for two
children, 25% of the obligor’s net monthly resources is presumptively the amount of
child support that is in the best interest of the children. TEX. FAM. CODE ANN.
§ 154.122. The court here found that 25% of Father’s net monthly resources was
$2,300. The court further found that no evidence was presented to rebut the
presumption that application of the 25% guideline was in the children’s best interest.
The court acknowledged that, to vary from the guidelines, it was required to provide
specific reasons to justify the variance. The court did not provide any findings to
support the award of $1,700, but instead stated no findings in support of a variance
were made.
There is no way to reconcile the multiple findings made by the trial court on
the child support issue and the amount of monthly support it ordered. The only
amount of child support supported by the findings is $2,300 per month. Because
the trial court’s unchallenged findings show that $2,300 per month was 25% of
Father’s net monthly resources, and this amount of child support was in the
children’s best interest, we resolve Mother’s first issue in her favor, and modify the
trial court’s order to award Mother $2,300 per month in child support. See In re
E.A.C., 162 S.W.3d 438, 444 (Tex. App.—Dallas 2005, no pet.) (modifying trial
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MODIFIED;REVERSE and REMAND and Opinion Filed November 14, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00744-CV
IN THE INTEREST OF S.M.A. AND N.N.F., CHILDREN
On Appeal from the 303rd Judicial District Court Dallas County, Texas Trial Court Cause No. DF-16-07076
MEMORANDUM OPINION Before Justices Schenck, Reichek, and Goldstein Opinion by Justice Reichek In this appeal, Mother challenges the trial court’s final order in a suit to modify
the parent-child relationship.1 Because we conclude the trial court’s findings of fact
do not support its order, we modify the court’s order to conform to its findings of
fact on the issue of child support, and reverse and remand the court’s order regarding
conservatorship, possession, and the parents’ rights and duties for further
proceedings.
1 The Office of the Attorney General of Texas contends in its brief on appeal that Mother is improperly challenging a temporary order rendered by an associate judge prior to trial. It is clear from the issues brought by Mother that she is challenging the final order rendered by the trial court. Accordingly we conclude the Attorney General’s argument that Mother’s appeal is moot, and we lack jurisdiction to address it, is without merit. Background
Mother and Father are the parents of two minor children, S.M.A and N.N.F.
An agreed order establishing the parent-child relationship was entered on June 22,
2017. In the agreed order, Mother and Father were named joint managing
conservators and Father was ordered to pay $620 per month in child support.
On January 17, 2020, Father filed a petition to modify the parent-child
relationship in which he contended circumstances had materially and substantially
changed. Father requested modification of the conservatorship and termination of
the court-ordered support. Mother filed a counter-petition requesting that Father’s
child support obligation be recalculated, a confirmation of Father’s child support
arrearages, and modifications including the appointment of Mother as sole managing
conservator with the exclusive right to make invasive medical decisions, educational
decisions, and consent to the children’s psychiatric and psychological treatment.
A trial before the court was conducted on April 30, 2021. Father failed to
appear. At the conclusion of the hearing, the court orally announced it was denying
both Mother’s and Father’s requested modifications to conservatorship, possession,
and their rights and duties. The court further confirmed child support arrearages in
the amount of $24,082.48 and increased the monthly amount of child support to be
paid by Father to $1,700. The judge signed an order reflecting those rulings one
month later.
–2– Mother timely requested the trial court to make findings of fact and
conclusions of law. Among the findings and conclusions made by the trial court
were the following:
(1) There was a material and substantial change in circumstance of the parties;
(2) Mother presented permissible, uncontroverted testimony regarding Father’s income and resources;
(3) 25% of Father’s net monthly resources is $2,300;
(4) Child support calculated using the Texas Family Code’s guidelines is presumed to be in the best interest of the children;
(5) The trial court may deviate from the guidelines only if evidence rebuts the presumption that application of the guidelines is in the best interest of the children;
(6) No evidence was presented to overcome or rebut this presumption;
(7) If the amount of child support ordered varies from the amount computed by applying the guidelines, the court is required to make findings, including the specific reasons for the variance;
(8) No findings were made as to the specific reasons the amount of support per month ordered by the court varied from the amount computed by applying the percentage guidelines;
(9) After July 16, 2020, Father disappeared from both the litigation and the children’s lives;
(10) Father was properly cited to appear at trial but failed to do so;
(11) At the time of trial, Father had not seen or spoken to the children in nine months;
–3– (12) Father refused to participate in the custody evaluation;
(13) Father presented no evidence at trial that joint managing conservatorship was in the best interest of the children;
(14) Father presented no evidence that standard possession was in the best interest of the children;
(15) Father presented no evidence that a residency restriction to Dallas County was in the best interest of the children.
Father did not object to the trial court’s findings.
Analysis
I. Child Support
In her first issue, Mother contends the trial court’s order awarding her only
$1,700 per month in child support is not supported by either the trial court’s findings
of fact or the evidence submitted at trial. No party in this case has challenged the
trial court’s findings of fact. Therefore, they are binding on this Court on appeal.
See Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 632 (Tex. App.—
Dallas 1993, writ denied).
Findings of fact are the ultimate determinations of all specific inquiries
necessary to establish conduct or the existence or nonexistence of a relevant matter.
Pac. Emp’rs Ins. Co. v. Brown, 86 S.W.3d 353, 356–57 (Tex. App.—Texarkana
2002, no pet.). The judgment rendered by the trial court must conform to the nature
of the case proved. TEX. R. CIV. P. 301. “When the findings of fact do not support
the judgment, the judgment should either be reformed to conform to the findings, or
–4– if appropriate, it should be reversed.” Brown, 86 S.W.3d at 357; 6 McDonald &
Carlson Tex. Civ. Prac. App. Prac. § 18:14 (2nd ed. 1998 & Supp. 2021).
The guidelines established by the Texas Family Code state that, for two
children, 25% of the obligor’s net monthly resources is presumptively the amount of
child support that is in the best interest of the children. TEX. FAM. CODE ANN.
§ 154.122. The court here found that 25% of Father’s net monthly resources was
$2,300. The court further found that no evidence was presented to rebut the
presumption that application of the 25% guideline was in the children’s best interest.
The court acknowledged that, to vary from the guidelines, it was required to provide
specific reasons to justify the variance. The court did not provide any findings to
support the award of $1,700, but instead stated no findings in support of a variance
were made.
There is no way to reconcile the multiple findings made by the trial court on
the child support issue and the amount of monthly support it ordered. The only
amount of child support supported by the findings is $2,300 per month. Because
the trial court’s unchallenged findings show that $2,300 per month was 25% of
Father’s net monthly resources, and this amount of child support was in the
children’s best interest, we resolve Mother’s first issue in her favor, and modify the
trial court’s order to award Mother $2,300 per month in child support. See In re
E.A.C., 162 S.W.3d 438, 444 (Tex. App.—Dallas 2005, no pet.) (modifying trial
court’s order on child support to conform to findings of fact).
–5– II. Conservatorship, Possession, and Rights and Duties
In her second issue, Mother contends the trial court abused its discretion in
failing to grant her requested modifications to the children’s conservatorship and
possession and to her and Father’s rights and duties as parents. A trial court abuses
its discretion when it acts arbitrarily, unreasonably, or without reference to any
guiding rules or principles. In re K.A.M.S., 583 S.W.3d 335, 341 (Tex. App.—
Houston [14th Dist.] 2019, no pet.). There is no abuse of discretion if there is some
evidence of a substantive and probative character to support the court’s decision. Id.
Mother contends the trial court abused its discretion in denying her requested
modifications because her unrebutted evidence showed that Father had disappeared
from the children’s lives. The trial court’s finding that Father had not seen or spoken
to the children in the nine months prior to trial indicates it found Mother’s evidence
credible. While none of the findings made by the trial court support its decision to
deny Mother’s requested modifications, they also cannot be read as unequivocally
supporting the specific modifications she sought. It is impossible for us to discern
the basis of the trial court’s ruling from the findings it made. Because the trial court’s
findings are disconsonant with its order, and we cannot determine the court’s
reasoning from its findings, we conclude that, in the interest of justice, we must
reverse and remand the court’s order on conservatorship, possession, and the
parents’ rights and duties for further proceedings. See Brown, 86 S.W.3d at 359
–6– (where judgment conflicted with fact findings, appropriate to reverse and remand
for new trial in interest of justice).
Based on the foregoing, we modify the trial court’s order to award Mother
$2,300 per month in child support to be paid by Father. We reverse the portions of
the order addressing conservatorship and possession of the children, and Mother’s
and Father’s rights and duties as parents, and remand those issues to the trial court
for further proceedings.
/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE
210744F.P05
–7– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
IN THE INTEREST OF S.M.A. On Appeal from the 303rd Judicial AND N.N.F., CHILDREN District Court, Dallas County, Texas Trial Court Cause No. DF-16-07076. No. 05-21-00744-CV Opinion delivered by Justice Reichek. Justices Schenck and Goldstein participating.
In accordance with this Court’s opinion of this date, the Modified Order in Suit Affecting the Parent-Child Relationship signed by the trial court on May 26, 2021 is MODIFIED as follows:
It is ORDERED that YERVY AGUILA is obligated to pay and shall pay to TAMICA LATOYA FITZGERALD child support of two thousand three hundred dollars and zero cents ($2,300) per month.
It is further ORDERED that, the portions of the trial court’s order pertaining to conservatorship, possession, and the parent’s rights and duties are REVERSED AND REMANDED for further proceedings.
It is ORDERED that appellant TAMICA LATOYA FITZGERALD recover her costs of this appeal from appellee YERVY AGUILA. .
Judgment entered November 14, 2022.
–8–