Affirmed and Opinion Filed June 20, 2016.




                                                     In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas
                                              No. 05-15-00564-CV

                               IN THE INTEREST OF S.D.S.H., A CHILD

                            On Appeal from the 380th Judicial District Court
                                         Collin County, Texas
                                 Trial Court Cause No. 380-50238-07

                                    MEMORANDUM OPINION
                                Before Justices Evans, Schenck, and Richter1
                                         Opinion by Justice Evans
            Father2 appeals from the trial court’s order granting Mother’s petition to modify the

parent-child relationship. In two issues, Father complains the trial court abused its discretion in

excluding from evidence his 2013 income tax return and setting his child support obligation

based on a monthly income of $7000.3 For the reasons that follow, we affirm the trial court

order.




    1
        The Hon. Martin Richter, Justice, Assigned
    2
     Rather than identify appellant and appellee by their full names, we refer to them as “Father” and “Mother”
pursuant to section 109.002(d) of the family code. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014).
    3
      Father’s brief contained a third issue complaining about the trial court’s denial of his motion for new trial
based on newly available evidence. However, Father withdrew this issue in his reply brief. Accordingly, we do not
address this complaint.
                                               BACKGROUND

           Father and Mother are the unmarried parents of a minor child, S.D.S.H. They filed cross-

petitions seeking to modify a SAPCR4 order rendered October 5, 2007.                           The 2007 order

appointed Mother and Father joint managing conservators along with several other family

members, and gave Mother and Father a 50-50 possession schedule. Neither parent was ordered

to pay child support under the 2007 order.

           A hearing was held in August 2014. The trial court heard testimony from both parents

and other witnesses, including a private child custody evaluator/expert consultant. Also admitted

into evidence was the evaluator’s report, a questionnaire Father filled out for the evaluator, and a

student reading log. Father’s 2013 income tax return5 was excluded from evidence after the trial

court sustained Mother’s objection that Father “can’t vouch for its authenticity, it’s incomplete.

He testified at one point that he’s an employee, but now this says he’s self-employed.” At the

conclusion of the hearing, the trial court granted Mother’s modification request. The non-parent

family members were removed as managing conservators, and Mother and Father were

appointed joint managing conservators with Mother having the exclusive right to designate the

primary residence of the child. Father was awarded visitation under a standard possession order

and ordered to pay child support of $1000 per month.

           Pursuant to Father’s request, the trial court filed findings of fact and conclusions of law.

The following findings are relevant to the issues presented by this appeal. As of the date of trial,

Father had not yet established an independent residence for himself, continued to live with his

parents during his weeks of possession of the child, and relied on his parents to parent the child.

Father paid no rent for living at his parents’ home. When Father did not have possession of the

    4
        “Suit Affecting the Parent-Child Relationship.” See TEX. FAM. CODE ANN. § 101.032 (West 2014).
    5
      Father testified that the 2013 tax return was prepared and filed by an accountant less than a week before the
hearing.


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child, he lived rent-free in a home in the Dallas neighborhood of Preston Hollow. Father is a

project manager for Hill Construction Group, a family company that builds multimillion dollar

homes in the Park Cities.6 Hill Construction pays the monthly rent of $2500 for the Preston

Hollow property. Father drives a vehicle that was given to him by his parents and Father does

not pay for the vehicle. He also has an ownership in a boat with a friend that is paid for by Hill

Construction.

          Father completed a parenting questionnaire for the social study evaluator in which he

admitted a gross income of $7000 per month and a net income of $5700 per month.7 Father told

the evaluator in an interview that he made $7000 per month. Father made these statements

before the evaluator recommended a change of custody. Father also testified at trial that he can

obtain money from Hill Construction when he needs it. Although Father testified that the

income listed on the questionnaire only reflected what he made the month he filled it out, the

trial court found his trial testimony not credible. The trial court further found that Father

developed a motive to “fabricate” his testimony of his income at the time of trial. Additionally,

the trial court found Father’s testimony that he made only $1500 to $2000 per month not credible

and determined his monthly income was at least $7000 per month. Based on that monthly

income, the trial court applied the child support guidelines and ordered Father to pay $1000 per

month in child support to Mother. Father filed this appeal.

                                                   ANALYSIS

          We review a trial court’s ruling on child support for a clear abuse of discretion. See

Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). We view the evidence in the light most

favorable to the trial court’s action and indulge every legal presumption in favor of the order.

   6
       There was evidence that Hill Construction is owned by Father’s brother.
   7
       The questionnaire was completed by Father in January 2014.


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See McLane v. McLane, 263 S.W.3d 358, 362 (Tex. App.—Houston [1st Dist.] 2008, pet.

denied). In family law cases involving an abuse of discretion standard of review, legal and

factual insufficiency are not independent grounds for reversible error; but they are relevant

factors when assessing whether the trial court abused its discretion. In re A.B.P., 291 S.W.3d 91,

95 (Tex. App.—Dallas 2009, no pet.).        In determining whether the trial court abused its

discretion because the trial court evidence is insufficient to support its decision, we consider

whether the trial court (1) had sufficient evidence upon which to exercise its discretion and (2)

erred in its exercise of that discretion. See id. Moreover, when determining issues that involve

the best interests of the child, the trial court is in the best position to observe the witnesses’

demeanors and personalities and thus discern forces, powers, and influences not apparent by

merely reading the record. See Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.—Dallas 2004,

no pet.). Where, as here, the trial court made findings of facts and conclusions of law, they have

the same dignity as a jury’s verdict. In re C.H.C., 392 S.W.3d 347, 349–50 (Tex. App.—Dallas

2013, no pet.). And like a jury’s verdict, the findings are reviewable for legal and factual

sufficiency under the same standards. Id.

        We begin our discussion with Father’s second issue in which he complains the trial court

abused its discretion in assessing child support of $1000 per month because the evidence was

legally and factually insufficient to support such an award. Father specifically challenges the

evidentiary sufficiency of the trial court’s finding that he had a monthly gross income of $7000.

       Father argues the questionnaire on which he reported a monthly gross income was $7000

was no evidence to support the trial court’s finding because “no reasonable and fair-minded

person could evaluate the handwritten questionnaire and Father’s testimony about it and

conclude that the income statement in the questionnaire carries probative force.” Father further

asserts that even if the questionnaire was legally sufficient to support the monthly income

                                               –4–
finding, the finding was against the great weight of the evidence in light of his testimony that

(1) he received a substantial bonus just before completing the questionnaire (corroborated by

testimony from his mother), (2) his income fluctuated, and (3) his gross income in 2013 was

$25,000. We disagree.

       Father did not dispute that his response to the questionnaire listed a monthly gross

income of $7000. Instead, he contended the amount listed represented his gross income for the

month of January 2014 only. When Father was asked about his current income, however, he

responded, “I really couldn’t answer that question, because I pay myself when I need money and

it varies.” He indicated that although his gross income for January 2014 may have been $7000,

“there are months that I make $5000 a month.” He further testified that his income in 2013 was

$25,000 and his monthly income for July 2014 was about $1500 to $2000. When asked, “So

you’re making $7000 a month, and you’re living rent free with your brother?” Father responded

“Yes.” Father also provided conflicting testimony on whether he could access money from Hill

Construction, stating alternatively that he pays himself as needed, but could not access more

money from the business because he was not an owner. Although Father testified his brother

writes and signs his paychecks, he later admitted that he had access to the business bank account

to write checks. Father’s testimony suggested he had substantial control over the amount he was

paid every month.

       Giving substantial deference to the trial court’s determinations regarding the weight of

the evidence and credibility of the witnesses, we conclude the evidence was sufficient to support

the trial court's finding that Father’s monthly gross income was $7000. Accordingly, the trial

court did not abuse its discretion in ordering Father to pay monthly child support of $1000. We

resolve Father’s second issue against him.




                                              –5–
       In his first issue, Father contends the trial court abused its discretion in excluding from

evidence his 2013 income tax return. We may not reverse a trial court for an erroneous

evidentiary ruling unless the error probably caused rendition of an improper judgment. See Kia

Motors Corp. v. Ruiz, 432 S.W.3d 865, 883 (Tex. 2014). Even assuming, without deciding, that

the 2013 tax return was erroneously excluded, Father has failed to demonstrate harm from its

exclusion.

       The issue the trial court had to determine was Father’s current monthly gross income.

While a tax return from the previous year may be probative evidence relevant to that issue, it was

not “crucial” as Father contends.      When Father was asked about his current income, he

responded, “I really couldn’t answer that question, because I pay myself when I need money and

it varies.” Father also testified that he probably made $1500 to $2000 in July 2014, but “there

are months that I make $5000.”        From this testimony, it appears that Father could easily

manipulate his monthly income to suit his needs. Thus, it appears Father’s 2013 income as

reflected in a tax return prepared and filed a week before trial would provide little guidance as to

his current monthly income.       Moreover, Father testified that he made $25,000 in 2013.

Consequently, the 2013 tax return substantiating this amount was merely cumulative of the

evidence already before the trial court and would not have added “substantial weight” to his case.

See Bohmfalk v. Linwood, 742 S.W.2d 518, 521(Tex. App.—Dallas 1987, no writ) (decisive

factor for harm is whether excluded evidence that was cumulative of other evidence would add

substantial weight to complainant’s case). We resolve Father’s first issue against him.




                                                –6–
                                      CONCLUSION

       We affirm the trial court’s order granting Mother’s petition to modify the parent-child

relationship.




                                                   /David Evans/
                                                   DAVID EVANS
                                                   JUSTICE


150564F.P05




                                             –7–
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                         JUDGMENT

IN THE INTEREST OF S.D.S.H., A                        On Appeal from the 380th Judicial District
CHILD,                                                Court, Collin County, Texas
                                                      Trial Court Cause No. 380-50238-07
No. 05-15-00564-CV                                    Opinion delivered by Justice Evans, Justices
                                                      Schenck and Richter participating.

        In accordance with this Court’s opinion of this date, the trial court’s order granting the
petition to modify the parent-child relationship is AFFIRMED.

       It is ORDERED that appellee Jessica Bannecker recover her costs of this appeal from
appellant Stephen Travis Hill.


Judgment entered this 20th day of June, 2016.




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