Mario Antonio Pavon v. Liliam Janett Hernandez

• Court: Court of Appeals of Texas
• Decided: April 28, 2011
• Docket: 14-10-00059-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed April 28, 2011.

In The

Fourteenth Court of Appeals

NO. 14-10-00059-CV

Mario Antonio Pavon, Appellant

v.

Liliam Janett Hernandez, Appellee

On Appeal from the 257th District Court

Harris County, Texas

Trial Court Cause No. 2008-19281

MEMORANDUM OPINION

This is an appeal from an order in a suit affecting the parent-child relationship.  Challenging the trial court’s child support order, the father (1) questions the standard of review applicable to this case and (2) asserts that the trial court either erred in determining appellant’s available monthly net resources and in setting the amount owed for child support or that the evidence is legally insufficient to support either determination.  We affirm.

Factual and Procedural Background

The Office of the Attorney General of Texas filed a petition to establish the parent-child relationship between appellant Mario Antonio Pavon and two children S.J.P., a minor, and K.P., who already had reached majority by 2008, when the suit was filed.  After ordering and receiving results from blood tests, an associate judge entered an order establishing the parent-child relationship, finding that Pavon is the biological father of the children.  As relevant to this appeal, the associate judge ordered Pavon to pay appellee Liliam Janett Hernandez, the children’s mother, monthly child support. 

Pavon requested a de novo hearing to review the findings pertaining to the amount of monthly child support, among other things.  The record reflects that Pavon, K.P., and Hernandez testified at this hearing.  The trial court ordered Pavon to pay Hernandez $665 each month for child support for S.J.P., noting that Pavon had $3,800 available in monthly net resources.  Pavon challenges the trial court’s finding as to his monthly net resources and the monthly child-support award.

Standard of Review

A trial court’s order setting or modifying child support is reviewed under an abuse-of-discretion standard.  Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam).  The test for abuse of discretion is whether the trial court acted arbitrarily or unreasonably, that is, without reference to guiding rules and principles.  Id.  In making this determination, we must view the evidence in the light most favorable to the trial court’s rulings and indulge every legal presumption in favor of the judgment.  Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ denied).  We do not treat allegations of legal and factual insufficiency as independent grounds of error in this context because the appropriate standard of review is abuse of discretion.  Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).  A trial court abuses its discretion as to legal issues when it fails to analyze or apply the law correctly.  Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).  To the extent Pavon suggests the application of a different standard of review, we find no merit in his arguments and we overrule his first issue.

Child Support

            In his second issue, Pavon claims the trial court abused its discretion in determining that his available monthly net resources were $3,800.  According to Pavon, the record contains no evidence to support the trial court’s implied finding that the sale of his barber shop business in 2009 to his live-in girlfriend was a “sham.”  Pavon claims that the evidence is insufficient as to the trial court’s implied finding, and therefore, as raised in his third issue, the trial court erred in setting his monthly child-support obligation at $665.  Pavon asserts on appeal that the evidence establishes as a matter of law that his available net monthly resources amount to $500.  We may uphold the trial court’s judgment based upon any legal theory supported by the record.  See Worford, 801 S.W.2d at 109.

The amount of a periodic child support payment established by the child-support guidelines contained in the Texas Family Code is presumed to be reasonable and in a child’s best interest.  See Tex. Fam. Code Ann. § 154.122(a) (West 2008).  A trial court “shall calculate net resources for the purpose of determining child support liability.”  Id. § 154.062(a) (West 2008).  A determination of “net resources” includes consideration of all wage and salary income, self-employment income, net rental income, and all other income actually being received.  Id. § 154.062(b). 

Evidence established that Pavon is a licensed barber who, at one time, owned his own business, located on Fulton Street.  Pavon testified that his net earnings for his business were $8,313 in 2008 at one barber shop and $12,899 in 2007 in a different shop.  According to Pavon, he became so ill in 2008 that he was unable to manage his business.  He claimed that in January 2009 he sold a barber shop to his live-in girlfriend for $60,000.  For this transaction he received an initial payment of $5,000, which he put towards medical bills.  No other evidence of the transfer appears in the record.  Pavon testified that, as of trial in August 2009, his only income is a $500 monthly payment he receives from his girlfriend for the sale of his business.  A statement of Pavon’s financial information shows Pavon’s gross monthly income, as of February 2009, as $2,000 and monthly expenses totaling $3,939. 

Pavon testified that he had been unable to work as a result of his medical condition, and that he had sought medical treatment many times in Honduras in 2008.  Although at the time of the hearing, Pavon’s doctor had advised him not to work, Pavon testified that he planned to return to work the following month at the barber shop that he previously had owned.  Pavon testified that he would work five hours each day and earn sixty percent of the income he generated for the business. 

Pavon testified that, as reflected in a 2008 tax return,[1] his business grossed $98,000 and employees were paid $39,870.  Pavon asserts on appeal that in extrapolating these figures over the course of twelve months, the figures amount to roughly $4,800 in monthly net resources.  Based on Pavon’s calculations of these numbers, he asserts the trial court improperly based its determination of net resources on a theory that the sale of his business was a sham and that he is still deriving income from the barber shop.

A child-support obligor qualified to obtain gainful employment cannot avoid a support obligation by voluntarily remaining underemployed or unemployed.  Iliff v. Iliff, No. 09-0753, —S.W.3d—,—, 2011 WL 1446725, at *5 (Tex. Apr. 15, 2011).  Once the parent obligated to pay child support offers proof of his or her current wages, the other parent bears the burden to show that the obligor is intentionally underemployed or unemployed.  Id.  The burden then shifts to the obligor, if necessary, to offer evidence in rebuttal.  Id.  The trial court may consider whether the obligor is attempting to avoid child support by becoming or remaining unemployed or underemployed as a factor in determining child support.  Id. (noting that such evidence may be particularly relevant or dispositive of the matter).  In addition to considering a parent’s duty to support and provide for his or her child, a court also must consider any proffered rebuttal evidence of reasons for an obligor’s intentional unemployment or underemployment, including a parent’s pursuit of his or her own happiness and other reasons that might be in the best interest of the child.  See id. (listing various laudable reasons why a spouse might choose unemployment or underemployment). 

As fact-finder, the trial court had the discretion to disbelieve Pavon’s testimony as to his net resources; the trial court was not required to accept as true Pavon’s testimony of his income and net resources.  See id.  Because the trier of fact is in a better position to determine the candor, demeanor, and credibility of the witnesses, we will not substitute our judgment for that of the trial court.  See id.  By its ruling, the trial court disbelieved Pavon’s testimony that he received only $500 in monthly income from the sale of his business, had no other income or other property from which he derived funds, and was unable to work.  See id.  The trial court reasonably could have concluded that Pavon became intentionally unemployed or underemployed by transferring his business to his live-in girlfriend after the Attorney General filed suit for child support.  See id.

A trial court may apply the support guidelines to a parent-obligor’s earning potential, rather than actual income, if the obligor is intentionally underemployed or unemployed.  See Tex. Fam. Code Ann. § 154.066(a) (West 2008).  The trial court also may assign a reasonable amount of deemed income to income-producing assets that a party has transferred voluntarily or on which earnings have intentionally been reduced.  Id. § 154.067(b) (West 2008).  The trial court reasonably could have found that Pavon voluntarily transferred his business to intentionally reduce his earnings after he was sued for child support.  Likewise, the trial court reasonably could have found that Pavon’s earning potential, as a licensed barber, was commensurate with the 2008 tax return figures.

A trial court may assign a reasonable amount of deemed income attributable to assets that currently do not produce income.  See id. § 154.067(a).  Although Pavon denied owning any other businesses, Pavon’s adult daughter, K.P., testified that Pavon owns two businesses by the same name —“Mario’s Barber Shop.”  One is located on Fulton Street and another is located on Aldine-Bender Road.  Photographs of both establishments were admitted into evidence.  K.P. claimed to have assisted in work at her father’s businesses.  Despite Pavon’s claim that he earned only $500 each month, the trial court reasonably could have concluded that Pavon had other undisclosed financial resources or income.  See Niskar v. Niskar, 136 S.W.3d 749, 759 (Tex. App.—Dallas 2004, no pet.). 

K.P. also testified that Pavon owns two homes and that she had lived in both with Pavon when she was a minor.  K.P. asserted that she would accompany Pavon to collect rental payments for one of the homes.  K.P. testified that she was present when Pavon closed on the purchase of the second home, the home in which he currently lives, and that she witnessed him signing the closing documents.  K.P. also testified that Pavon owns rental property in Honduras.  The trial court could have considered Pavon’s business on Aldine Bender Road and the rental properties, in addition to Pavon’s earnings, when the trial court determined the amount of child support to award.  See Goodson v. Castellanos, 214 S.W.3d 741, 757 (Tex. App.—Austin 2007, pet. denied).  We conclude the record contains sufficient evidence to support the trial court’s finding that Pavon’s net monthly resources were $3,800. 

Viewing the evidence in the light most favorable to the trial court’s judgment and findings, we conclude the trial court did not abuse its discretion in setting Pavon’s child support obligations based on Pavon’s monthly net resources.  We overrule Pavon’s second and third issues. 

            The trial court’s judgment is affirmed.

                                                                        /s/        Kem Thompson Frost

                                                                                    Justice

Panel consists of Justices Anderson, Frost, and Brown.

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[1] Although the record reflects that Pavon filed a tax return with the trial court, it is not a part of the record.