                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                               NO. 2-09-162-CV


IN THE INTEREST OF E.A.E., O.E.,
C.B.E., C.E., C.E., AND C.E.,
CHILDREN


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          FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY

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                       MEMORANDUM OPINION1
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      This is an appeal from the trial court’s denial of appellant Noble

Ezukanma’s motion to reduce child support for his six children. In four issues,

appellant contends that (1) the trial court abused its discretion by denying his

motion to reduce child support because he had been ―terminated from his

practice, sued for malpractice, and had been unable to generate virtually any

income in his attempt to start his new practice,‖ (2) the evidence is legally and

factually insufficient to support the trial court’s finding that there was not a

      1
       See Tex. R. App. P. 47.4.
material change in appellant’s circumstances warranting a reduction, (3) the

evidence was legally and factually insufficient to support the finding that

reduction of support would not be in the children’s best interest when the child

support was already above statutory guidelines, and (4) appellant conclusively

established a material change in circumstances warranting a reduction.        We

affirm.

                     Factual and Procedural Background

      After appellant and appellee Lawreta Njideka Ezukanma were divorced, in

a subsequent suit to modify the parent-child relationship, the trial court ordered

appellant to pay $5,400 per month in child support on the first day of each month.

In June 2008, the Tarrant County Domestic Relations Office IV-D Child Support

Monitoring Program (DRO) on behalf of appellee the Attorney General of Texas

filed a motion to enforce asking that appellant be held in contempt for failing to

make certain of the ordered payments. The DRO alleged that as of June 9,

2008, appellant’s total cumulative arrearage was $23,044.78.

      Appellant responded to the DRO’s motion by filing a motion to modify the

parent-child relationship, in which he moved the trial court to reduce his child

support payments because of ―changed circumstances.‖ He also subsequently

paid all past due amounts for January through July 2008 in July 2008 and his

payment for August 2008 on August 28, 2008. However, he did not make any

child support payments from September 2008 through February 2009, during the

pendency of the motion to modify.       After a hearing, the trial court denied

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appellant’s requested child support reduction, found him $28,656.58 in arrears

(for the September 2008 through February 2009 child support payments), found

that he willfully and intentionally failed to obey the trial court’s child support order

by failing to make payments on March 1, April 1, and June 1, 2008, and held him

in contempt for 180 days for each violation of the court’s order, with the

sentences to be served concurrently.           Appellant filed a petition for writ of

mandamus and habeas corpus challenging the provisions of the contempt order.

Those petitions are currently pending in cause number 2-09-464-CV.                 This

appeal is from the trial court’s denial of appellant’s motion to reduce child

support.

                                Standard of Review

      We review a trial court’s decision on whether to modify child support for an

abuse of discretion. In re B.S.H., 308 S.W.3d 76, 78 (Tex. App.––Fort Worth

2009, no pet.); In re P.J.H., 25 S.W.3d 402, 405 (Tex. App.––Fort Worth 2000,

no pet.). If there is some probative and substantive evidence to support the

judgment, the trial court did not abuse its discretion. B.S.H., 308 S.W.3d at 78;

P.J.H., 25 S.W.3d at 405. Legal and factual sufficiency of the evidence are

relevant factors in determining whether a trial court has abused its discretion but

are not independent grounds for asserting error. Hardin v. Hardin, 161 S.W.3d

14, 19 (Tex. App.––Houston [14th Dist.] 2004, pet. granted, judgm’t vacated

w.r.m.); In re A.J.J., No. 02-04-00265-CV, 2005 WL 914493, at *1 (Tex. App.––

Fort Worth Apr. 21, 2005, no pet.) (mem. op.). The party seeking to modify a

                                           3
child support order has the burden to prove a material and substantial change in

circumstances. In re C.C.J., 244 S.W.3d 911, 918 (Tex. App.––Dallas 2008, no

pet.); In re Z.B.P., 109 S.W.3d 772, 781 (Tex. App.––Fort Worth 2003, no pet.).

      Findings of fact entered in a case tried to the court have the same force

and dignity as a jury’s answers to jury questions. Anderson v. City of Seven

Points, 806 S.W.2d 791, 794 (Tex. 1991). The trial court’s findings of fact are

reviewable for legal and factual sufficiency of the evidence to support them by

the same standards that are applied in reviewing evidence supporting a jury’s

answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel,

881 S.W.2d 295, 297 (Tex. 1994).

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a

mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence" and

"Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In

determining whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a reasonable

factfinder could and disregard evidence contrary to the finding unless a

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

                                         4
S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005).

      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing

all of the evidence in the record pertinent to that finding, we determine that the

evidence supporting the finding is so weak, or so contrary to the overwhelming

weight of all the evidence, that the answer should be set aside and a new trial

ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on

reh=g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); In re King’s Estate, 150

Tex. 662, 244 S.W.2d 660, 661 (1951).

                                      Analysis

      A trial court may order a child support obligor’s payments modified if,

among other reasons, the obligor’s circumstances ―have materially and

substantially changed‖ since the date of the child support order’s rendition. Tex.

Fam. Code Ann. § 156.401(a) (Vernon 2008); In re A.J.J., 2005 WL 914493, at

*2. Here, appellant challenges the legal and factual sufficiency of the trial court’s

finding that his circumstances had not materially and substantially changed and

the following ancillary findings supporting that finding:

      that credible testimony was offered as to appellant’s ability to work

      additional shifts as an emergency room doctor;

      that appellant had instructed his employers to withhold additional funds

      from his paycheck for taxes and retirement and that this instruction was
                                          5
      made ―to reduce the sum of money available to be withheld for child

      support‖;

      that appellant’s financial statement, which was admitted, showed that on or

      about June 5, 2008, his mortgage payment was $3547 per month, his cash

      flow surplus was $7614 per month, his annual salary was $75,000 per

      month, and his annual commissions were $240,000;

      that a bank statement for Ezukanma Group of Companies 2 for 3/01/08

      through 3/31/08, which was admitted, showed a beginning balance of

      $196,936.36 and an ending balance of $60,779.66;

      that a bank statement for Ezukanma Group of Companies for 4/01/08

      through 4/30/08, which was admitted, showed a beginning balance of

      $60,779.66 and an ending balance of $14,773.62;

      that a bank statement for Ezukanma Group of Companies for 7/01/08

      through 7/31/08, which was admitted, showed a beginning balance of

      $18,621.58 and an ending balance of $2,002.47;

      that ―credible evidence was presented to show that [appellant] is

      intentionally underemployed in an effort to avoid paying child support for

      his six children‖;



      2
       Although the name on the bank statement is listed as ―Ezukanma Group
of Companies, Inc. d/b/a Noble One Properties,‖ appellant’s counsel represented
to the court that the statements were appellant’s, which he had provided in
discovery. There is no evidence that Ezukanma Group of Companies, Inc. is
related to appellant’s former or new physician’s practice group.
                                       6
      that appellant failed to present any evidence that decreasing child support

      would be in the children’s best interest; and

      that a malpractice suit that had been filed against appellant did not show a

      material and substantial change in circumstances because evidence about

      that suit had been offered at the hearing in 2007 when appellant’s child

      support obligation was initially set at $5,400 per month.

   Appellant contends the evidence is legally and factually insufficient to support

the trial court’s finding that he did not prove a material and substantial change in

his circumstances, i.e., there is no evidence that appellant did not suffer a

substantial and material change, or in the alternative, that the trial court’s failure

to so find is against the great weight and preponderance of the evidence. See

City of Keller, 168 S.W.3d at 807, 827; Cropper v. Caterpillar Tractor Co., 754

S.W.2d 646, 651 (Tex. 1988); see Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.

1988).

Applicable Facts

      At the February 2009 hearing on the motion to modify, appellant testified

that although he is a doctor, he was terminated from his nine-year practice

effective May 15, 2008. [rr at 29, 36] The medical group that had previously

employed him paid him net income of $4,273.79 in 2008 3; however, the group



      3
       According to appellant, the practice group deducted substantial sums from
his pay for legal expenses it claimed he owed in connection with a malpractice
suit against him. But the trial court did not allow evidence of the suit and
                                          7
also paid some funds directly for appellant’s child support obligations between

January and June 2008.        According to appellant, four other doctors were

terminated from the practice at the same time and had sued the practice for

unpaid salaries, but appellant had not joined the suit because he could not afford

to pay a lawyer. Appellant admitted that in January 2008, he cashed in his

retirement insurance in the amount of $216,000; he used it to pay bills and child

support, and he invested $21,000 of it in a new physician’s practice group. That

group does hospital consults for physicians with patients in the hospital who have

pulmonary disease.     However, he and the other doctors were subject to a

noncompete agreement with their former practice group, which prohibited them

from practicing within ten miles of their former location on South Adams in Fort

Worth.

      Appellant testified that this noncompete agreement had affected the new

practice’s ability to obtain patients; for instance, they had to turn down a contract

to treat John Peter Smith Hospital patients because that hospital is within the ten

mile radius. Appellant testified that he had received net income from the new

practice group, but the trial court did not allow him to testify about income from

the new practice in detail because he had failed to timely produce paycheck

stubs and monthly profit and loss statements for the practice in discovery.

However, appellant also testified that he did not receive any paychecks from the


subsequent judgment because both predated the August 2007 hearing at which
the trial court set appellant’s child support obligation at $5,400 per month.
                                          8
new practice in 2008.     According to appellant, the new practice was having

trouble with cash flow.    It did not receive any payments from Medicaid or

insurance companies for the first three months it was open; according to

appellant, those were the practice’s only source of income. However, appellant

anticipated that the new practice would begin to generate income.

      Appellant had attempted to obtain work as an emergency room doctor; he

stated that he had filled out applications and signed a contract with Harris, but

the trial court did not allow him to testify about the contract because he had not

provided it in discovery. Appellant testified that he had not paid the mortgage on

his residence since August 2008. According to appellant, he paid $525,000 for

the house, and it had a primary lien of $364,000 and a secondary lien of

$200,000. When asked whether that meant he owed $560,000 on the house,

appellant said yes. He did not think he could sell the house for the amount of

loans he had outstanding on it.

      Appellant testified that he owns a duplex in Wedgewood on which he owes

$116,000, but he said he would not be able to make any money by selling it. He

said that he had rented it ―at one point‖ but that he could not keep it rented. He

also said that the rent did not cover the expenses on the property. Appellant also

had a vehicle, which he had not attempted to sell but for which he could not

make any profit because he owed money on it. He testified that he also had a

401k worth about $60,000 but that he was unable to borrow against it.



                                        9
      Appellant also claimed that he had tried to borrow money from banks and

relatives but was not able to borrow any money. Lawreta testified that appellant

had asked her to loan him money to pay the child support payments that he

missed but that she told him she did not have any money.

      On cross-examination, the Attorney General introduced evidence that

appellant’s income at his former practice had been approximately $30,000 per

month, and that in 2007, he reported $424,864 in income.            Lawreta also

questioned appellant about a personal financial statement he had produced

during discovery. The statement was dated June 5, 2008; at that time, appellant

had failed to pay the monthly $5,400 in March 2008, April 2008, and June 2008.

However, he admitted that the statement showed he had $35,000 in the bank on

June 5, 2008. He also admitted he had a 401k of $89,000 at that time that he

could have cashed out. Appellant admitted that by subtracting liabilities from

assets on the statement he produced in discovery, it showed that as of June 5,

2008, he had a net worth of $195,400. He further admitted that he owned some

land in Nigeria but that he did not know its value.

      The Attorney General introduced evidence that appellant voluntarily

requested that his former practice withhold additional funds from his paycheck for

federal income tax4; however, he denied doing so for the purpose of reducing his


      4
      Appellant denied that he asked for this increase in withholding after the
August 2007 hearing at which the trial court set his $5,400 per month obligation.
He also denied making the request in November or December 2007; he said ―it
was way before then,‖ but he did not remember the exact date.
                                         10
income so that there would not be enough left over to make his child support

payments as ordered. According to appellant, he asked for the reduction on his

accountant’s advice to cover amounts he owed the IRS. 5           But the Attorney

General introduced evidence that appellant received a tax refund of $18,119 for

the 2007 tax year.

       Appellant explained that he owned a part interest in an office building on

South Adams with his business partners. He testified that he still owed about

$56,000 on a loan he had taken out to purchase that interest and that he could

not sell his interest to his other partners or a third party. 6

No Material and Substantial Change in Circumstances

   Financial ability to pay child support depends not solely on earnings but on all

sources of income. In re G.J.S., 940 S.W.2d 289, 293 (Tex. App.––San Antonio

1997, no pet.); Clark v. Jamison, 874 S.W.2d 312, 317 (Tex. App.––Houston

[14th Dist.] 1994, no writ). The court may also take into consideration a parent’s

earning potential in determining a child support question.        In re G.J.S., 940

S.W.2d at 293; In re Striegler, 915 S.W.2d 629, 638 (Tex. App.––Amarillo 1996,


       5
       Appellant did include an $18,000 tax obligation as a liability on his June 5,
2008 financial statement.
       6
       Appellant listed the $56,000 loan on his financial statement as a secured
loan, along with a $200,000 loan that he indicated was secured by his
homestead. When asked why he had not listed the $200,000 second mortgage
on his financial statement, appellant said he must have made a mistake and
inadvertently left it off. However, a careful reading of the statement shows that
appellant did list that loan and also indicated that it was secured by his
homestead.
                                            11
writ denied). Thus, a trial court may properly deny reduction in child support of

an obligor who no longer makes the same level of income but who has assets at

his or her disposal with which to pay child support and who has an earning

capacity greater than what his or her current position pays. See In re G.J.S., 940

S.W.2d at 293.

      Appellant contends that appellees confused his net worth with his ability to

make child support payments.        While it was undisputed that appellant was

terminated from his prior practice, which temporarily reduced his income, the

evidence also showed that appellant had started a new practice and was actively

seeing patients in that practice in the same field in which he had previously been

practicing.   See In re Striegler, 915 S.W.2d at 638 (holding trial court can

consider obligor’s earning potential). The trial court could also have inferred from

appellant’s failure to produce financial information about his new practice in

discovery that he was either intentionally underreporting income from that

practice or that he was trying to conceal that income. See Swate v. Crook, 991

S.W.2d 450, 453 (Tex. App.––Houston [1st Dist.] 1999, pet. denied) (holding that

trial court does not abuse its discretion by refusing to reduce child support

obligation if obligor fails to present evidence of current financial condition at time

of modification hearing), abrogated on other grounds by Smith v. Brown, 51

S.W.3d 376, 381 (Tex. App.––Houston [1st Dist.] 2001, pet. denied); see also

Tex. Fam. Code Ann. § 154.063 (Vernon 2008) (providing that trial court shall

require a party to ―furnish information sufficient to accurately identify that party’s

                                         12
net resources and ability to pay child support,‖ including current pay stubs).

Additionally, the trial court was not obligated to believe appellant’s general

testimony that he had tried to, but could not, generate income from his assets. 7

In re J.D.D., 242 S.W.3d 916, 922 (Tex. App.––Dallas 2008, pet. denied); In re

P.J.H., 25 S.W.3d at 406; cf. In re G.J.S., 940 S.W.2d at 293 (holding that trial

court could consider appellant’s assets in determining to increase appellant’s

child support obligation). Furthermore, contrary to appellant’s contentions, the

evidence did not show that he was unsuccessful in obtaining an emergency room

job; the evidence showed that he had filled out applications and signed a

contract.

      Appellant contends that the $5,400 per month child support is

presumptively not in the children’s best interest because it is ―well beyond‖ the

family code’s child support guidelines and the children’s best interest would not

be served by their father being incarcerated for failure to pay that amount while

trying to develop a new practice.      However, compliance with the statutory

guidelines is discretionary when a trial court is considering whether to modify an

existing child support order. Tex. Fam. Code Ann. § 156.402 (Vernon 2008); In

re G.J.S., 940 S.W.2d at 294; Escue v. Escue, 810 S.W.2d 845, 848 (Tex.

App.—Texarkana 1991, no writ). A child support order that is not in compliance

      7
       The trial court likewise was not required to believe appellant’s testimony
that he asked for additional income tax withholding because he owed the IRS
$18,000 when appellant also admitted that he had received a refund of over
$18,000 for year 2007 taxes.

                                       13
with the guidelines does not by itself establish a material and substantial change

in circumstances. In re G.J.S., 940 S.W.2d at 294. And, faced with evidence

supporting the inference that appellant was attempting to avoid paying his child

support obligation, the trial court could have determined that it was in the

children’s best interest to take action that would impress upon appellant the

importance of paying that obligation as ordered.8

      For these reasons, we conclude and hold that the evidence is both legally

and factually sufficient to support the trial court’s finding that appellant’s

circumstances had not materially and substantially changed 9 and, thus, that the

trial court did not abuse its discretion by denying appellant’s motion to reduce the

monthly amount of his child support payments.

      We overrule all of appellant’s issues.




      8
       After the hearing, the trial court modified the contempt order to require
appellant to serve his jail sentence on only the second and fourth weekends of
each month.
      9
       Because we hold that the evidence is legally and factually sufficient to
support this finding on an ultimate issue, we need not address appellant’s
arguments that the evidence was legally and factually insufficient to support each
of the trial court’s ancillary findings related to that ultimate issue. See Tex. R.
App. P. 47.1; Main Place Custom Homes, Inc. v. Honaker, 192 S.W.3d 604, 625
(Tex. App.––Fort Worth 2006, pet. denied).
                                        14
                              Conclusion

     Having overruled appellant’s four issues, we affirm the trial court’s

judgment.



                                             TERRIE LIVINGSTON
                                             CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DELIVERED: September 16, 2010




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