                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-09-00010-CV
         ______________________________


      IN THE INTEREST OF K.R.L., A CHILD




    On Appeal from the 71st Judicial District Court
               Harrison County, Texas
              Trial Court No. 07-0371




     Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Carter
                                   MEMORANDUM OPINION

         Michelle Lavender appeals a modification of a child support order and argues that the trial

court abused its discretion in reducing the child support order. We affirm the judgment of the trial

court.

I.       The Divorce Decree

         Sam and Michelle Lavender divorced on July 3, 2007, by an agreed decree of divorce which

provided that Sam would pay child support, divided property, and apportioned responsibility for

debts. As part of that agreement, Sam agreed to pay substantial child support with the agreement

that Michelle would live with the children in the family residence and make payments on the

property and for expenses associated with the residence. From his salary as a deputy sheriff, Sam

was ordered to pay what appears to be the amount established by the child support guidelines

($414.98 beginning October 1, 2007, reduced to $331.58 when the oldest child is no longer eligible

for support). Additionally, he was ordered to pay twenty-five percent of monies received from a trust

fund after he deducted twenty-five percent for taxes.

II.      Motion to Modify Support

         The parties and attorneys appeared before the trial court a year later on Sam's motion to

modify. The evidence was presented in a unique manner. The parties agreed that each side would

present an offer of proof consisting of the attorneys' statements of fact rather than formal proof. The

trial court accepted this procedure and ultimately based factual findings thereon. As this procedure



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was approved at the trial court, there is no complaint on this appeal concerning this conduct. Thus,

we will likewise consider these offers as evidence in the case.

       There is evidence that within a very short period of time, Michelle moved out of the house

with the two children (one of whom has since turned eighteen) and simultaneously stopped making

the payments on the house and its expenses.

       A.      Standard of Review

       The Texas Family Code allows courts to modify child support orders whenever there has

been a material and substantial change in the circumstances of the child, or of a person affected by

a support order. TEX . FAM . CODE ANN . § 156.401(a) (Vernon 2008); Nordstrom v. Nordstrom, 965

S.W.2d 575, 578 (Tex. App.—Houston [1st Dist.] 1997, pet. denied). Therefore, evidence regarding

the parents' or the child's financial circumstances or the child's needs at the time of the divorce and

the time of the modification hearing should be presented to the trial court so that the trial court can

determine that the requisite material and substantial change has occurred.             MacCallum v.

MacCallum, 801 S.W.2d 579 (Tex. App.—Corpus Christi 1990, writ denied).

       Should the requisite changed circumstances appear, the court may then alter the child support

obligation. Farish v. Farish, 921 S.W.2d 538, 541 (Tex. App.—Beaumont 1996, no pet.). A court's

child support order will not be disturbed on appeal unless the complaining party shows that the order

constituted a clear abuse of the court's discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.

1990); In re J.D.D., 242 S.W.3d 916, 919 (Tex. App.—Dallas 2008, pet. denied). The test is



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whether the court acted arbitrarily or unreasonably, without reference to any guiding rules and

principles. Simon v. York Crane & Rigging Co., 739 S.W.2d 793 (Tex. 1987).

        Michelle argues that the trial court committed reversible error by modifying support, and

mentions, though without arguing, that there was no evidence of the party's expenses, or "about the

best interest of the child whose support was at issue." She also complains that the record did not

indicate what child support Sam is now to pay or from which source it should come.

        B.      The Amount of Support

        Taking the arguments in reverse, we note that the order specifies that Sam is to pay $750.00

per month in child support. Michelle seems to argue that the order is ambiguous because that

amount may be in addition to the monthly amount of $498.48 that a separate document (a

withholding directive) states is to be withheld from his salary from the Harrison County Sheriff's

Office. (The reporter's record indicates that the amount being withheld has since been lowered to

$331.58 because one of the children is no longer a minor.) The argument appears to be that the

$750.00 is for child support from a trust from which Sam is paid, in addition to the amount withheld

from his pay from the sheriff's office.

        This is a misreading of the documents. The controlling document is the court's order. That

order states that Sam must pay $750.00 per month in child support. The withholding document

contained in our record is from the prior order, and the fact that it is for less than the monthly total

means only that Sam must make up the difference in ordered support from some other source.



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Although Michelle argues that this is in addition to other money that Sam is required to pay, the

order does not support that position, but in fact directs that any balance due after the withholding is

an obligation of Sam's which he is required to pay.

       C.      Sufficiency of Evidence of Change of Circumstances

       Michelle also argues very briefly that although the parties acknowledged the "back and forth"

residence of the younger child, Sam provided no evidence of the changes in economic circumstances

of any party, that there was no evidence of any party's expenses at the time of divorce or at the time

of trial, and no evidence about the best interest of the child whose support was at issue.

       Section 156.401 of the Texas Family Code allows a court to modify an order that provides

for the support of a child if "the circumstances of the child or a person affected by the order have

materially and substantially changed since . . . the date of the order's rendition." TEX . FAM . CODE

ANN . § 156.401(a)(1)(A). In determining whether a modification of support is necessary, the trial

court is to examine and compare the circumstances of the parents and any minor children at the time

of the initial order, with the circumstances existing at the time modification is sought. In re C.C.J.,

244 S.W.3d 911, 918 (Tex. App.—Dallas 2008, no pet.). The trial court is given broad discretion

in setting child support payments and in modifying those payments. Id.; Nordstrom, 965 S.W.2d at

578. The record must contain both historical and current evidence of the relevant person's financial

circumstances. As courts have pointed out, without both sets of information, the court has nothing




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to compare and cannot determine whether a material and substantial change has occurred. London

v. London, 192 S.W.3d 6, 15 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

       The court in this case made multiple findings:

       1.      The application of the guidelines would be unjust or inappropriate
       2.      The evidence rebuts the presumption that application of the guidelines is in
               the best interest of the child and justifies a variance from the guidelines.
       3       The amount of child support ordered by the Court is justified by the factors
               set forth in section 154.123 of the Texas Family Code.

       The Texas Family Code allows the trial court to deviate from the guidelines for child support

for various reasons after considering relevant factors. TEX . FAM . CODE ANN . § 154.123 (Vernon

2008). Specifically, the court may consider debts or debt service assumed by either party and the

amount of the time of possession and access to the child. TEX . FAM . CODE ANN . § 154.123(b)(4),

(16). Here, the trial court found that Michelle's expenses were lowered by her decision to abandon

the family residence and leave it to the questionable mercy of creditors. The court also noted that

the child spent more than sixty percent of her time with Sam, that healthcare insurance and payment

of the child's medical expenses had been largely assumed by Sam, and that he had assumed over

$1,300.00 per month in debts originally assigned to Michelle.

       The record contains evidence to support these findings. There is evidence that Sam kept the

child nearly two-thirds of the time, that he purchased what was necessary for her, and that Michelle

had, after falling at least two months delinquent in payments on the family residence, moved out.

There is evidence that the payments had been set as they were to allow Michelle to make the



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payments on those properties and on a year-old pickup truck which was repossessed. She now lives

with her boyfriend with minimal or no living expenses, and the natural result of her behavior was

to require Sam to catch up the payments that she had failed to make, as well as keeping the payments

current. (Of course, he could have allowed the property to be foreclosed, but would still be liable

for any deficiency.)

       The trial court entered findings of fact in which several of the relevant factors for deviating

from the standard child support order were considered. However, the trial court did not make a

finding regarding the percentage of net resources actually used in establishing the child support

order. See TEX . FAM . CODE ANN . § 154.130(b) (requiring trial court to enter such a finding if

amount of child support ordered varies from standard guidelines). We have attempted to extrapolate

from the evidence that information. The evidence shows that Sam's trust income for the previous

year was $84,000.00, or an average of $7,000.00 per month. According to the Texas Family Code

chart, that gross amount results in a net resource, after proper deductions, of $5,194.81. His

employer has been ordered to withhold $331.58 per month which, based on twenty percent

withholding for one child, would result in a net resource for his job of approximately $1,650.00

per month. Jointly, his net monthly resources for child support purposes is $6,844.81, twenty percent

of which would be $1,368.96. The trial court ordered him to pay $750.00 per month, or

approximately eleven percent of his net resources. So the deviation appears to be approximately

$619.00 per month, a nine percent deviation. The trial court found that Sam had increased his



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monthly expenses by more than $1,300.00 since the divorce by assuming the house payments and

related debts that Michelle was previously required to pay and that Michelle had in turn substantially

reduced her expenses. This occurred despite the fact that the divorce decree awarded to Michelle

as her sole and separate property the real property described as "335 Whispering Pines, Marshall,

Texas 75672."1

       The evidence of the monetary position of each of the parties now compared to that when the

divorce was granted is sufficient to allow the court to make its ruling and to support its findings. The

trial court did not abuse its discretion by modifying support.

       We affirm the judgment.



                                                 Jack Carter
                                                 Justice

Date Submitted:          June 16, 2009
Date Decided:            June 23, 2009




       1
           At other places in the divorce decree, the home address is shown to be in "Hallsville, Texas,
75650."

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