Zajac v. Penkava

924 S.W.2d 405, 1996 Tex. App. LEXIS 1825, 1996 WL 230056
CourtCourt of Appeals of Texas
DecidedMay 8, 1996
Docket04-94-00546-CV
StatusPublished
Cited by22 cases

This text of 924 S.W.2d 405 (Zajac v. Penkava) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zajac v. Penkava, 924 S.W.2d 405, 1996 Tex. App. LEXIS 1825, 1996 WL 230056 (Tex. Ct. App. 1996).

Opinion

DIAL, Justice 1 .

This is an appeal from a divorce suit where the only disputed issue was child support. The trial judge heard evidence and awarded the mother, Jeri Penkava, child support of $3,000 per month. This was based on an interpretation of section 14.055(c) of the Texas Family Code, 2 applicable in situations where the obligor’s net resources exceed $6,000 per month. The court awarded $1800 child support based on the statutory guidelines and an additional amount of $1200 based on the income of the parties and the proven needs of the children.

The father, Robert Zajac, brings eight points of error. He complains of the child support award in excess of the statutory guidelines in section 14.055. He also complains of the failure of the trial judge to file requested findings of fact in the child support order pursuant to section 14.057 of the Texas Family Code. We conclude that the trial judge did not abuse his discretion. We will, therefore, affirm the judgment.

The parties agreed that the mother would be the managing conservator of the three children, and the father would be possessory conservator with standard visitations. Both parents are physicians. The mother only works part-time because of personal health problems.

Evidence was offered by the mother that the husband’s income after taxes the year before the divorce was $153,682 or $12,807 per month. The husband testified that he was currently drawing approximately the same amount as the previous year, and in addition to the draw, he received bonuses. He testified that in the five months preceding the divorce, he had net earnings of $42,-000.

Their accountant testified that the projected net income for the father for the current year would be $10,129 per month, and for the mother $8,327 per month.

The mother testified as to the expenses she was incurring and expected to incur in the future on behalf of the children. She offered, without objection, an exhibit listing anticipated common family expenses and separate expenses for each child. The list included such things as a house payment for a home she had contracted to buy. The home in which she was living was awarded to the father by agreement. The list included cost of a nanny because the wife worked irregular hours. Included also were items for a vacation, travel, Christmas, birthday, music lessons, and other extra-curricular activities. When seventy-five percent of the common family expenses were attributed to the three children, the result was a total monthly expense for the children of $8,380.90.

The mother, who is a pediatrician, testified that all the children attended private schools, which she felt was best for the children. Two of the children had demonstrated learning disabilities. The father testified that he regarded things such as special schooling as luxuries rather than necessities. He stated they were nice things that he gladly provided his children. He complained that he was *408 being removed from the decision-making process where the children’s expenses were concerned. He did not offer rebuttal evidence as to any needs of the children.

The trial court filed findings complying with the requirements in section 14.057(a)(l)(2)(3) and (4) of the Texas Family Code. The trial court found that the net resources of the father were at least $13,000 per month and those of the mother were at least $7,000 per month. The appeal was abated for the trial court to file additional findings. Included in the additional findings was the following:

(5) The Court finds that it is appropriate to apply the percentage guidelines to the first $6,000 of the obligor’s net resources and to allocate additional child support to the obligor. Child support was calculated by applying the percentage guidelines to the first $6,000 of the obligor’s net resources. An additional award of $1200 (or $400 per child) was allocated to the obligor to meet the additional needs of the children as proven by the obligee.

In points of error one through five, the appellant father complains that the trial judge abused his discretion in awarding $3,000 per month in child support and that there was no evidence or insufficient evidence to support the court’s findings.

The standard of review of a trial court’s order of child support is the abuse of discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). The test by which that standard is applied is whether the trial court acted arbitrarily or unreasonably without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). A relevant consideration is the existence of sufficient evidence in the record upon which the trial court could exercise its discretion. Beaumont Bank, N.A v. Butler, 806 S.W.2d 223, 226 (Tex.1991). We do not treat the appellant’s allegations of legal and factual insufficiency of the evidence as independent grounds of error. “Abuse of discretion does not exist as long as there is some evidence of a substantive and probative character to support the decision.” Powell v. Swanson, 893 S.W.2d 161, 163 (Tex.App.—Houston [1st Dist.] 1955, no writ).

The trial was held on June 13, 1994, and judgment was signed July 25, 1994. Therefore, the appeal is governed by section 14.055(e) of the Texas Family Code as amended by the Legislature effective September 1,1993, as follows:

(c) More Than $6,000 Monthly Net Resources
In situations in which the obligor’s net resources exceed $6,000 per month, the court shall presumptively apply the percentage guidelines in Subsection (b) of this section to the first $6,000 of the obligor’s net resources. Without further reference to the percentage recommended by these guidelines, the court may order additional amounts of support as appropriate depending on the income, of the parties and the proven needs of the child. The proper calculation of a child support order that exceeds the presumptive amount established for the first $6,000 of the obligor’s net resources requires that the entire amount of the presumptive award be subtracted from the proven total needs of the child. After the presumptive award is subtracted, the court shall allocate between the parties the responsibility to meet the additional needs of the child according to the circumstances of the parties. However, in no event may the obligor be required to pay more than an amount equal to 100 percent of the proven needs of the child as child support.

(emphasis added). In the 1993 amendment, the Legislature substituted the italicized words for “proven, depending on the needs of the child at the time of the order” in the earlier statute, and added the last three sentences in the section.

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Bluebook (online)
924 S.W.2d 405, 1996 Tex. App. LEXIS 1825, 1996 WL 230056, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zajac-v-penkava-texapp-1996.