Opinion issued January 13, 2015




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-13-00875-CV
                           ———————————
                HENRY WILLIAM GROTEWOLD, Appellant
                                        V.
                        JANET KAY MEYER, Appellee


                   On Appeal from the 257th District Court
                            Harris County, Texas
                      Trial Court Case No. 2004-40933


                                  OPINION

      Herny William Grotewold and Janet Kay Meyer each filed a suit to modify

the parent-child relationship. In the course of the proceedings, the trial court

awarded sanctions against Meyer, ordering her to pay certain fees incurred by

Grotewold’s attorney. Following a trial, the trial court made certain modifications
to the prior terms governing the parent-child relationship. In two issues on appeal,

Grotewold argues (1) the trial court miscalculated his monthly child support

obligations and (2) the trial court abused its discretion by denying his motion for

continuance.

      We reverse and render in part and affirm in part.

                                   Background

      Grotewold and Meyer initiated divorce proceedings in 2004. They had one

child together. The divorce was finalized, and child support was set. In 2013,

Grotewold and Meyer each filed suits to modify the parent-child relationship.

They both sought, among other things, a re-evaluation of child support obligations.

      During the course of recent proceedings, Grotewold sought discovery from

Meyer on her mental health. On July 22, 2013, Grotewold filed a document titled

“Motion for Psychological Examination and Evaluation of Janet Meyer, Motion for

Continuance and Motion for Sanctions.” In it, Grotewold identified two grounds

for sanctions but one ground for a continuance. Grotewold sought sanctions for

Meyer’s alleged failure to fully disclose the extent of her medication and

counseling for psychological conditions and sanctions for failing to produce her tax

returns as requested. Grotewold only requested a continuance, however, to obtain

more documentation about her mental health and to subject Meyer to a

psychological evaluation.



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      The trial court granted Grotewold’s motion for sanctions, but did not

identify the ground or grounds upon which the sanction was based. In the same

order, the trial court denied the motion for psychological evaluation and the motion

for continuance.

      After a hearing, the trial court issued an order modifying the parent-child

relationship. In the order, the trial court required Grotewold to pay $1,308.67

monthly in child support. The order acknowledged the guidelines on determining

child support and noted only one variance from the guidelines: basing Grotewold’s

gross annual income on an average from the previous three years. In its findings of

fact, the trial court found that, based on the three-year average, Grotewold’s gross

annual income was $78,520. From this, the trial court determined that Grotewold’s

average gross monthly income was $6,543. The trial court’s order for monthly

child support payments is 20% of Grotewold’s average gross monthly income.

                                  Child Support

      In his first issue, Grotewold argues the trial court miscalculated his monthly

child support obligations.

A.    Standard of Review

      The determination of the amount of child support to be paid is left to the

discretion of the trial court and will not be disturbed on appeal absent a clear

showing of abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.



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1990); In re L.R.P., 98 S.W.3d 312, 313 (Tex. App.—Houston [1st Dist.] 2003,

pet. dism’d). A trial court abuses its discretion when it acts without reference to

any guiding rules and principles.      Worford, 801 S.W.2d at 109; McGuire v.

McGuire, 4 S.W.3d 382, 384 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

      In family law cases, legal and factual sufficiency challenges do not

constitute independent grounds for asserting error, but are relevant factors in

determining whether the trial court abused its discretion. Moore v. Moore, 383

S.W.3d 190, 198 (Tex. App.—Dallas 2012, pet. denied). To determine whether

the trial court abused its discretion because the evidence is legally or factually

insufficient to support the trial court’s decision, we consider whether the trial court

(1) had sufficient evidence upon which to exercise its discretion and (2) erred in its

application of that discretion. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex.

App.—Dallas 2005, pet. denied). We conduct the applicable sufficiency review

when considering the first prong of the test. Id. We then determine whether, based

on the elicited evidence, the trial court made a reasonable decision. Id. A trial

court does not abuse its discretion if there is some evidence of a substantive and

probative character to support the decision. Id.

B.    Analysis

      Appellant argues that the trial court incorrectly calculated his monthly child

support obligations. We agree.



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      The Texas Family Code establishes guidelines for setting monthly child

support obligations in suits affecting the parent-child relationship. See TEX. FAM.

CODE ANN. §§ 154.121–.133 (Vernon 2014). These guidelines are presumptively

reasonable. Id. § 154.122(a). The trial court may vary from the guidelines when

the evidence rebuts the presumption that application of the guidelines is in the best

interest of the child. Id. § 154.123(a). But, in order to do so, the trial court must

justify its variance. Id. In that situation, the trial court is required to make specific

findings supporting the variance. Id. § 154.130(a)(3), (b)(4).

      Determination of child support obligations begins by determining the

relevant parent’s gross resources on an annual basis. See id. § 154.061(a) (Vernon

2014) (requiring, when feasible, to calculate gross income on annual basis),

§ 154.062(b)–(c) (Vernon 2014) (defining resources). An average monthly gross

income is determined from the annual gross income. Id. § 154.061(a). From those

gross resources, certain deductions are made. See id. § 154.062(d) (identifying

deductions from gross resources).       The remaining amount is the parent’s net

resources. See id. § 154.062(a). The Office of the Attorney General is responsible

for annually promulgating charts that compute net monthly income from gross

monthly income.       See id. § 154.061(b) (requiring IV-D agency to annually

promulgate tax charts); see also TEX. FAM. CODE ANN. § 231.001 (Vernon 2014)

(designating Office of the Attorney General as Title IV-D agency in Texas). For a



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single child, the guidelines set child support obligations at 20% of the parent’s net

resources. Id. § 154.125(b).

      The trial court found that Grotewold’s gross annual income was $78,520,

and Grotewold does not dispute this determination. See Vill. Place, Ltd. v. VP

Shopping, LLC, 404 S.W.3d 115, 124 (Tex. App.—Houston [1st Dist.] 2013, no

pet.) (holding unchallenged findings are binding on appeal). As the trial court

determined, this sets Grotewold’s average monthly gross resources at $6,543. See

FAM. § 154.061(a). The trial court then determined that Grotewold’s monthly

child support obligation should be $1,308.67. This is 20% of Grotewold’s gross

monthly resources, not his net monthly resources.          See FAM. § 154.125(b)

(requiring courts to presumptively apply 20% of parent’s net resources to child

support obligation).

      The trial court did not find that a variance is justified.             See id.

§ 154.130(a)(3), (b)(4) (requiring trial court to make specific findings justifying

variance from guidelines). To the contrary, the trial court explicitly found that

child support should be based on that number. Additionally, in its order modifying

the parent-child relationship, the trial court explicitly made findings pursuant to

section 154.130 but did not identify any justifications to vary from the guidelines.

See id. Instead, it determined that the only variance from the guidelines was its

basing Grotewold’s gross annual income on an average from the previous three



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years. Accordingly, we must conclude that the trial court determined that no

evidence overcame the presumption that the guidelines were within the best

interest of the child.

       Based on this, the record reflects that the trial court miscalculated

Grotewold’s child support obligations. The Attorney General’s charts calculating

net monthly resources set Grotewold’s net monthly resources at $4,954.39. See

Office of the Att’y Gen., 2013 Tax Charts, 38 Tex. Reg. 1011 (2013); see also

FAM. § 154.061(b) (requiring IV-D agency to annually promulgate tax charts).

Grotewold and Meyer had one child. Accordingly, Grotewold is obligated to

dedicate 20% of his net monthly resources to child support.               See FAM.

§ 154.125(b). This amounts to $990.88 per month.

       We sustain Grotewold’s first issue.

                                   Continuance

       In his second issue, Grotewold argues the trial court abused its discretion by

denying his motion for continuance.

A.     Standard of Review

       The trial court has broad discretion to deny or grant a motion for

continuance. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); McAleer v.

McAleer, 394 S.W.3d 613, 617 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

“When reviewing a trial court’s order denying a motion for continuance, we



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consider whether the trial court committed a clear abuse of discretion on a case-by-

case basis.” Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex.

2004). A trial court abuses its discretion when it acts in a manner so arbitrary and

unreasonable that it amounts to a clear and prejudicial error of law. Id. We cannot

substitute our judgment for that of the trial court in matters committed to the trial

court’s discretion. McAleer, 394 S.W.3d at 617.

      To determine whether a trial court abused its discretion in denying a motion

for continuance that seeks additional time for discovery, we consider the following

non-exclusive list of factors: “the length of time the case has been on file, the

materiality and purpose of the discovery sought, and whether the party seeking the

continuance has exercised due diligence to obtain the discovery sought.” Joe, 145

S.W.3d at 161.

B.    Analysis

      Grotewold argues that, because it sanctioned Meyer for failing to fully

disclose in her discovery responses the extent of her medication and counseling for

psychological conditions, the trial court abused its discretion by denying his

request for a continuance to obtain more documentation about her mental health

and to subject Meyer to a psychological evaluation. We disagree that the record

establishes that the trial court sanctioned Meyer for failing to disclose matters

concerning her mental health.



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      Grotewold filed a document titled “Motion for Psychological Examination

and Evaluation of Janet Meyer, Motion for Continuance and Motion for

Sanctions.” In it, Grotewold identified two grounds for sanctions but one ground

for a continuance. Grotewold sought sanctions for Meyer’s alleged failure to fully

disclose the extent of her medication and counseling for psychological conditions

and sanctions for failing to produce her tax returns as requested. Grotewold only

requested a continuance, however, to obtain more documentation about her mental

health and to subject Meyer to a psychological evaluation.

      The trial court ordered Meyer to pay Grotewold $1,500 in sanctions but did

not identify what specific action or actions were being sanctioned. A sanctions

order is required to state the particulars of good cause supporting sanctions. TEX.

R. CIV. P. 13. Failing to object to the form of the sanctions order, however, waives

any error. Robson v. Gilbreath, 267 S.W.3d 401, 407 (Tex. App.—Austin 2008, pet.

denied). There is no objection in the record about the form of the sanctions award.

Accordingly, Grotewold has waived any error concerning the order’s failure to

specify what action or actions were being sanctioned. Because the order does not

support Grotewold’s claim that the trial court sanctioned Meyer for failing to

disclose matters concerning her mental health, this cannot be a basis for

determining that the trial court abused its broad discretion by denying Grotewold’s

motion for continuance.



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      We overrule Grotewold’s second issue.

                                   Conclusion

      We reverse the trial court’s calculation of Grotewold’s child support

obligations and render the corrected amount. We affirm the remaining portions of

the judgment.




                                            Laura Carter Higley
                                            Justice

Panel consists of Justices Keyes, Higley, and Brown.




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