                                  NO. 07-03-0183-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                NOVEMBER 16, 2005

                         ______________________________

              IN THE INTEREST OF C. F. C. AND M. C. C., CHILDREN
                     _________________________________

            FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                  NO. 55,541-E; HONORABLE ABE LOPEZ, JUDGE
                       _______________________________


Before REAVIS and CAMPBELL, JJ.1


                              MEMORANDUM OPINION


      Lynn Franklin Cowden brings this appeal from an order modifying his child support

and directing payment of attorney’s fees that appellee Caroline Kemper Cowden incurred

in prosecuting the modification action. We affirm.


      At the time of the parties’ divorce in 1998, their substantial assets were divided

pursuant to their agreement,2 appellee receiving the primary residence and cash, and



      1
        Former Chief Justice Phil Johnson was on the panel that heard oral argument. He
did not participate in the decision. Tex. R. App. P. 41.1(b).
      2
          The agreement provided both for division of the community property and
affirmation of the separate property owned by each.
appellant receiving assets including ranch property and mineral interests. The decree

named the parents joint managing conservators of their four minor children with appellee

having the right to establish their primary residence. Appellant was ordered to pay child

support in the amount of $2,100 per month, with reductions when each child attained the

age of eighteen. When the parties’ second child turned eighteen in November 2001, the

support payments were reduced to $1,500 per month.


       Appellee filed an action to modify the support order in July 2002. Her petition

alleged a material change in the circumstances of a person affected by the court’s prior

support order. She sought an unspecified increase in support payments and recovery of

attorney’s fees. At a hearing on the motion, appellee testified an increase in support

payments was warranted by the needs of the children and a substantial increase in

appellant’s income since the divorce. Appellant and appellee’s attorney also testified. The

trial court set support payments at $3,917 and found, in accordance with Section 154.130

of the Family Code, appellant’s monthly net resources are at least $21,192, appellee’s

monthly net resources are $3,855; the support ordered is 18.5 percent of appellant’s net

resources, and the amount of support was based on the proven needs of the children. It

also awarded appellee attorney’s fees of $11,421.58 through trial, and an additional

$10,000 for appeal. The court made findings of fact repeating the findings in its order and,

in additional findings of fact, found the proven needs of the two minor children still at home

are at least $4,576.


       Appellant now presents three issues in challenge of the trial court’s order. He

argues first that the court erred in failing to make requested findings of fact. By his second

                                              2
and third issues, appellant contends the court abused its discretion by increasing his child

support to $3,917 per month, and by awarding attorney’s fees of $11,421.58.


       Appellant’s first issue assigns error to the trial court’s failure to make a requested

finding of fact on the consideration it gave to expenses of the parties’ two older sons who

are over eighteen and attending college away from home. He requested an additional

finding, and amendment of another finding, to include a statement the needs and expenses

of the two older children are not relevant to the issues before the court and should not be

considered in setting child support for the younger children. That request was prompted

by challenged evidence of the older sons’ college expenses and appellant’s failure to

contribute toward those expenses.


       A trial court’s duty to make additional findings extends only to those requested on

ultimate or controlling issues. It need not make findings on issues that are merely

evidentiary. In re Davis, 30 S.W.3d 609, 614 (Tex.App.–Texarkana 2000, no pet.); Hill v.

Hill, 971 S.W.2d 153, 155 (Tex.App.–Amarillo 1998, no pet.). An ultimate or controlling

issue of fact is one that calls for the determination of a fact essential to the cause of action

or defense. Wichita Falls & Ok. Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79, 84

(1940), overruled on other grounds by Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex.

1981); In re Edwards, 79 S.W.3d 88, 94-95 (Tex.App.–Texarkana 2002, no pet.). If the

fact sought is necessary to form the basis of the judgment, then the issue is an ultimate or

controlling one. Pepper, 135 S. W.2d at 84.




                                               3
       An evidentiary issue concerns facts that may be considered by the factfinder in

deciding the controlling issue. In re Edwards, 79 S.W.3d at 95. See Pepper, 135 S.W.2d

at 84 (referring to factual determinations “necessarily embraced in the determination of the

ultimate fact issue”). A requested additional finding asking the court to state the evidence

on which it relied for its original findings was held to be evidentiary and thus not required.

Dura-Stilts Co. v. Zachry, 697 S.W.2d 658, 661 (Tex.App.–Houston [1st Dist.] 1985, writ

ref'd n.r.e.). Appellant’s requests for findings that certain evidence was not relevant to the

issue of the proper level of child support were similarly evidentiary only, and the trial court

did not err by refusing them. We overrule appellant’s first issue.


       In his second issue appellant contends the trial court abused its discretion by

increasing his child support to $3,917 per month. Appellant presents two arguments in

support of the second issue. He first argues the court’s finding that the proven needs of

the children are $4,576 is not supported by sufficient evidence.3 A trial court is given broad

discretion in setting and modifying child support payments, and absent a clear abuse of

discretion, the court's order will not be disturbed on appeal. In re D.S., 76 S.W.3d 512,

516 (Tex.App.–Houston [14th Dist.] 2002, no pet.). In determining whether the trial court’s

decision constitutes an abuse of its discretion, we review the entire record, Mercedes-Benz

Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996), and must view the evidence in

the light most favorable to the trial court’s action and indulge every legal presumption in

favor of the judgment. Nordstrom v. Nordstrom, 965 S.W.2d 575, 578 (Tex.App.–Houston



       3
        The trial court’s findings concerning the monthly net resources of the parties are
not challenged on appeal.

                                              4
[1st Dist.] 1997, pet. denied). Abuse of discretion does not exist as long as there is some

evidence of a substantive and probative character to support the decision. In re C.R.O.,

96 S.W.3d 442, 447 (Tex.App.–Amarillo 2002, pet. denied); Nordstrom, 965 S.W.2d at

578.


       Evidence supporting the trial court’s finding on the needs of the children includes

an exhibit prepared by appellee listing monthly expenses incurred by or attributed to the

children and her testimony concerning that exhibit and other expenses not included in the

document. Appellee testified she derived the figures in the exhibit from her actual

expenses, and the expenses were incurred to fulfill the children’s needs. In summary, the

exhibit listed $2,889 of expenses for 16-year-old Craig and $1,686 for 13-year-old Mary

Caroline.4 The difference between the children was primarily due to the inclusion of

automobile expenses for Craig. $743 of each child’s total was the result of attributing one

third of some household expenses5 to them.


       Appellant points out that appellee’s trial exhibit and testimony provided different

expense figures than her discovery responses, and that the only evidence of the proven

needs of the children came from appellee, an interested witness. What constitutes “needs”

of a child has not been defined by statute or case law, but they are not limited to the bare

necessities of life. When evaluating a child’s needs, courts are to be guided by the



       4
       The two figures total $4,575. The one-dollar difference in that total and the proven
needs recited in the court’s findings is not addressed in the record, and we will ignore it.
       5
       These expenses included utilities, home insurance, property taxes, groceries, and
maintenance.

                                             5
paramount principle of seeking the best interest of the child. Rodriguez v. Rodriguez, 860

S.W.2d 414, 417 (Tex. 1993). Appellee’s credibility and the weight to be given her

testimony concerning the needs of the two children remaining at home were matters for

the trial court’s determination. See In re Gonzalez, 993 S.W.2d 147, 159-60 (Tex.App.–

San Antonio 1999 pet. denied) (managing conservator in best position to explain child’s

needs); Scott v. Younts, 926 S.W.2d 415, 421 (Tex.App.–Corpus Christi 1996, writ denied)

(mother in best position to explain needs of child).


       Appellant also points to testimony at trial that Craig had not driven his car for several

months because shortly after turning 16, he struck a parked car while intoxicated.

Appellant’s assertion on appeal that there is no evidence of any need for the car disregards

appellee’s testimony that the expenses listed on her exhibit reflected the needs of the

children. While appellant testified he wanted his children to earn money to pay for such

things, he did not go so far as to say the car was unnecessary. 6


       Appellant further contends many of the household expenses reflected in appellee’s

evidence, including the utilities, taxes and maintenance, are not needs of the children

because they would be incurred even if the children did not live in the house. He offers no

authority in support of that argument. We do not agree the trial court abused its discretion

by permitting the attribution of such expenses to the children. See Scott, 926 S.W.2d at

419 n.6, 422 (affirming needs that included utilities, home repairs and taxes); Yarbrough

v. Yarbrough, 151 S.W.3d 687, 693 (Tex.App.–Waco 2004, no pet.) (finding of needs


       6
         Appellant wanted Craig to be denied use of the car for at least six months following
the collision. He did not testify the car should be sold.

                                               6
supported “if the [trial] court considered” two-thirds of house expenses as expenses of

children).


       We conclude the trial court’s finding of $4,576 as the proven needs of the children

is supported by evidence of a substantive and probative character.7


       Appellant’s next argument in support of his second issue concerns the trial court’s

allocation of the responsibility to meet the found needs of the children. Section 154.126

of the Family Code is applicable where, as here, an obligor’s net resources exceed $6,000

per month. Tex. Fam. Code. Ann. §154.126 (Vernon 2002). It directs a court to apply the

percentage guidelines of Section 154.125 to the first $6,000 of net resources to determine

a presumptively reasonable amount of support. The statute also authorizes a court to

order additional support based on the income of the parties and the proven needs of the

children. Id. Under subsection (b), the additional amount should be determined by

subtracting the presumptive amount from the proven needs of the child and then allocating

responsibility for meeting the additional needs between the parties according to their

circumstances. Id.


       Applied to these parties, the court was required to subtract the presumptive amount

of support from the first $6,000 of appellant’s net resources, here $1,500, from the proven


       7
         Appellant also argues the trial court’s finding of the children’s needs is so against
the great weight and preponderance of the evidence as to be manifestly unjust. To the
extent this factual sufficiency standard is applicable to review of the trial court’s findings
concerning the proven needs of the children, see C.R.O., 96 S.W.3d at 447, we do not
agree that the record as a whole shows the finding to be manifestly unjust. As noted, the
court’s finding was based on the testimony of the children’s mother concerning her actual
expenses for provision of the children’s needs.

                                              7
total needs of $4,576. The cost of meeting the resulting additional needs is $3,076. The

court was required to allocate responsibility to meet these needs between the parties

“according to the circumstances of the parties.” Tex. Fam. Code Ann. §154.126(b)

(Vernon 2002). The court assigned appellant responsibility for $2,417, or 78.5 percent, of

the additional needs. It assigned $659, or 21.4 percent, of the additional needs to

appellee. The resulting total support obligation of $3,917 is 18.5 percent of appellant’s net

resources, while the $659 assigned to appellee is 17 percent of her net resources. We do

not agree this allocation shows a clear abuse of discretion by the trial court.8


        Appellant also reiterates his position that attribution of a share of household

expenses to the children results in a windfall to appellee and was improper. Having stated

our conclusion the trial court’s treatment of such expenses as needs of the children was

not an abuse of the court’s discretion in this case, we need not further address that issue

here.


        Appellant finally argues additional circumstances of the parties the court should

have considered, including increases in appellee’s income since the divorce, her

inheritance of money and mineral interests, and the cash received by appellee as part of

their property settlement. But the court also had before it evidence of the substantial


        8
         Appellant proposes an alternate allocation of the unmet needs that begins by
calculating the presumptive amount appellee would have been required to pay if she had
been an obligor. He cites the discussion of such a calculation in Nordstrom, 965 S.W.2d
at 581. The court there states the trial court could have utilized such a calculation as a
basis for its decision not to award additional support beyond the obligor’s presumptive
amount. Id. Nordstrom does not suggest that such a calculation is a part of the method
required under Section 154.126(b), and does not provide a basis to conclude the trial court
here abused its discretion by not employing it.

                                             8
property awarded to appellant at divorce, and increases in his income since the divorce.

Consideration of the circumstances of the parties in this well-developed record does not

alter our conclusion the trial court did not abuse its discretion. We overrule appellant’s

second issue.


       Appellant’s third issue assigns error to the award of attorney’s fees in the amount

of $11,421.48.9 He does not dispute the power of a court to award attorney’s fees in an

action of this type. See Tex. Fam. Code Ann. §106.002 (Vernon 2002) (authorizing award

of attorney’s fees under Title 5 of the Family Code, which includes Section 156.401

governing support modification). Appellant does not challenge the testimony of appellee’s

counsel concerning the time expended in preparation and presentation of the action, or the

reasonableness or necessity of the fees charged. His contentions focus on his perceptions

concerning the unfairness of the court’s award of additional support and concerning

appellee’s motive for bringing the modification proceeding.10 The award of attorney’s fees

in a suit affecting the parent-child relationship is discretionary with the trial court. C.R.O.,

96 S.W.3d at 452. Appellant’s contentions do not show an abuse of discretion by the trial

court in the award of attorney’s fees. Norris v. Norris, 56 S.W.3d 333, 346 (Tex.App.–El

Paso 2001, no pet.) (contention that mother who prevailed on her motion to modify should



       9
        This amount was awarded through trial. We do not construe appellant’s challenge
as applicable to the additional amounts awarded for appeal to this court or the Texas
Supreme Court.
       10
          Appellant says appellee brought the modification action to punish him for not
contributing to the college education of the older children. But appellant has not
challenged in this court the existence of the material and substantial change in
circumstances required by Section 156.401.

                                               9
not have prevailed did not demonstrate abuse of discretion in attorney’s fee award). We

overrule appellant’s third issue


         Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.




                                          James T. Campbell
                                              Justice




                                            10
