      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00108-CV



                                    Charles Norris, Appellant

                                                  v.

                                   Melissa M. Norris, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 395TH JUDICIAL DISTRICT
      NO. 06-1317-F395, HONORABLE MICHAEL JERGINS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Charles Norris appeals from a district court order increasing his child-support

obligations to his ex-wife, appellee Melissa M. Norris. In four issues, Charles asserts that the

district court abused its discretion in determining that a change in circumstances warranted

modification and in setting the amount of his child-support obligation at $885 per month.1 We will

affirm the district court’s modification order.


                                         BACKGROUND

               The marriage of Charles and Melissa was ended by an agreed divorce decree signed

on August 29, 2006. The decree named Melissa sole managing conservator of their only child, M.P.,

and Charles possessory conservator. The decree provided Charles with possession of M.P. “at any

and all times mutually agreed to in advance by the parties,” and Melissa with possession at all




       1
         Given the parties’ common surname, we will identify them by their first names to avoid
confusion.
other times. It did not otherwise specify the parties’ visitation rights and did not require Charles to

pay Melissa child support, but made each party solely responsible for providing food, clothing,

shelter, entertainment, transportation, and other basic necessities for M.P. while the child was in

that party’s actual possession. The decree also obligated Charles to pay half of M.P.’s unreimbursed

medical costs.

                 On August 19, 2009, Melissa filed a motion to modify in which she requested

additional child support, arrearages for additional support imposed retroactively, and attorney’s fees.

At the hearing on the motion, Charles appeared solely through counsel because he was incarcerated

at the time. Melissa presented evidence that she had lost her job in 2008 and had since had to sell

her cars, possessions, and her home in order to make ends meet, while also borrowing money. She

testified that she had received approximately $140,000 from the sale of her house after deducting

taxes and fees, but that amount was “dwindling down pretty quick” as she repaid people from whom

she had borrowed money. After selling her house, according to Melissa, she and M.P. had moved

in with Melissa’s mother, and she was now a full-time student pursuing a business degree without

a current income. In addition to her testimony, Melissa introduced a chart of monthly expenses she

claimed were attributable to her care of M.P., which totaled $2,475.00 per month. Melissa asked

the court to order Charles to pay half of that amount, or $1,237.50 per month, both from that time

forward and for the twenty-seven months in which the case had been pending.

                 Melissa also explained the circumstances under which she had agreed not to obligate

Charles to pay child support under the 2006 divorce decree. According to Melissa, she had been

earning approximately $100,000 annually at the time of their divorce, while Charles had been

working at a restaurant earning about seven dollars per hour. She further asserted that Charles had




                                                  2
been engaging in “erratic,” drug-addicted behavior, that “[m]y child was scared,” and that “I wanted

him out of the house.”

               Melissa further testified that, since the 2006 decree was signed, Charles had only

limited possession of M.P.—i.e., leaving Melissa with the responsibility of funding M.P.’s basic

necessities—and had not seen the child, now thirteen years of age, in over two-and-a-half years. She

also claimed that Charles had never complied with his obligation to pay her half of M.P.’s

unreimbursed medical costs.

               Additionally, Melissa presented evidence that although Charles was currently

incarcerated and had earned limited income prior to that time, he had inherited financial resources

from which he could satisfy a child-support obligation. Under the divorce decree, Charles had

retained as his sole separate property any right, title, and beneficial interest in and to any trust to

which he was a beneficiary. Melissa testified that after Charles’s mother died in 2006, Charles

had inherited between $500,000 and $750,000 that he and his mother had previously held in a

joint trust. Melissa claimed that Charles had told her about this inheritance, showed her bank

statements, and had her review these statements with him when he was incarcerated. She also

testified that she did not believe that the trust was still in place because she had seen trust

documentation or statements and had conversations with Charles’s bank indicating that Charles had

removed the money from the trust.

               Melissa also testified that Charles had well over $500,000 in an Ameritrade account.

Her testimony was based on her review of his Ameritrade statements shown to her on the day of the

hearing, although the statements themselves were not offered into evidence. Melissa explained that

she was not sure if Charles had additional resources, but she asserted that Charles’s parents had other




                                                  3
assets such as insurance policies and IRAs. Melissa claimed that she had a trust statement in her car,

but it also was not offered into evidence.

                Charles’s trial counsel called no witnesses and presented no evidence on his behalf,

although the attorney did cross-examine Melissa regarding her testimony. At the conclusion of

evidence, the district court found that application of the statutory child-support percentage guidelines

would be inappropriate, that departure from the statutory guidelines was in M.P.’s best interest, that

Charles had $3,300 per month in net resources, and that Melissa had no net resources per month.

The district court signed a final order modifying the parties’ divorce decree to order Charles to pay

$885 per month in child support, $9,735 in arrearages based on modified retroactive support for the

prior eleven months, and $4,000 in attorney’s fees. This appeal followed.


                                             ANALYSIS

                Charles brings four issues on appeal. In his fourth issue, he argues that there was

legally and factually insufficient evidence of a material and substantial change in the parties’

circumstances that would permit the court to modify the divorce decree. In his first three issues,

Charles argues that the district court abused its discretion in ordering him to pay monthly child-

support of $885 and retroactive child support of $9,735 because, respectively, (1) those amounts

were not calculated in accordance with the statutory minimum guidelines; (2) the district court,

he asserts, improperly considered Charles’s age in calculating the child support; and (3) there

is no evidence to support the district court’s finding that Charles’s assets produced or could

produce income.2


       2
         In her brief, Melissa also moves to dismiss Charles’s appeal in its entirety based on what
she claims is his failure to comply with the service requirements under the rules of civil or appellate
procedure. We deny the motion.

                                                   4
Standard and scope of review

               When reviewing a modification of a child-support order, we are mindful that the

best interest of the child should be the trial court’s primary consideration. See Tex. Fam. Code Ann.

§ 156.402(b) (West 2008); Hollifield v. Hollifield, 925 S.W.2d 153, 155 (Tex. App.—Austin 1996,

no writ). Trial courts have wide discretion in determining the best interest of the child. Gillespie

v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Hollifield, 925 S.W.2d at 155. Therefore, we will

not disturb a trial court’s order modifying child support unless the complaining party can show a

clear abuse of discretion. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re J.A.J.,

283 S.W.3d 495, 497 (Tex. App.—Beaumont 2009, no pet.); Gonzalez v. Tippit, 167 S.W.3d 536,

544 (Tex. App.—Austin 2005, no pet.). “The test for abuse of discretion is whether the trial court

acted without reference to any guiding rules or principles; in other words, whether the act

was arbitrary or unreasonable.” Worford, 801 S.W.2d at 109. “The mere fact that a trial judge

may decide a matter within his discretionary authority in a different manner than an appellate judge

in a similar circumstance does not demonstrate that an abuse of discretion has occurred.” Downer

v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).

               Under this abuse-of-discretion standard as applied here, legal and factual sufficiency

are not independent grounds of error, but are relevant factors in assessing whether the trial court

abused its discretion. Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex. App.—Austin 1997, no pet.). We

engage in a two-pronged inquiry, determining whether (1) the trial court had sufficient

evidence upon which to exercise its discretion; and (2) the trial court erred in its application of

that discretion. Zeifman v. Michels, 212 S.W.3d 582, 588 (Tex. App.—Austin 2006, pet. denied).




                                                 5
We apply traditional evidentiary-sufficiency review standards when considering the first question,3

and then we consider whether the trial court made a decision, based on the evidence, that was

arbitrary or unreasonable. Id. In making that determination, we view the evidence in the light most

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

In re J.D.D., 242 S.W.3d 916, 920 (Tex. App.—Dallas 2008, pet. denied). As long as some

evidence of a substantive and probative character exists to support the trial court’s order, we will

not substitute our judgment for that of the trial court. See Echols v. Olivarez, 85 S.W.3d 475, 477

(Tex. App.—Austin 2002, no pet.).


Material and substantial change

                We begin by addressing Charles’s fourth issue because it challenges whether the

district court had authority to modify the parties’ original agreed decree and, thus, logically precedes

the other issues. A trial court has the authority to modify an agreed child-support obligation that

differs from the statutory guidelines, like that of Charles and Melissa, only if “the circumstances

of the child or a person affected by the order have materially and substantially changed”

since the rendition of the prior order of child support. See Tex. Fam. Code Ann. § 156.401(a-1)




       3
          When conducting a legal-sufficiency review, we must view the evidence in the light most
favorable to the trial court’s findings, “crediting favorable evidence if reasonable jurors could,
and disregarding contrary evidence unless reasonable jurors could not.” City of Keller v. Wilson,
168 S.W.3d 802, 807 (Tex. 2005). Moreover, we must indulge every reasonable inference that
would support the trial court’s findings. Id. at 822. The ultimate test for legal sufficiency is whether
the evidence at trial would enable reasonable and fair-minded people to reach the verdict under
review. See id. at 827. When reviewing the factual sufficiency of the evidence, we consider and
weigh all of the evidence in the record, and we should set aside the finding only if the evidence
supporting the finding is so weak as to be clearly wrong and manifestly unjust. See Cain v. Bain,
709 S.W.2d 175, 176 (Tex. 1986) (per curiam). We must not merely substitute our judgment for that
of the factfinder. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

                                                   6
(West Supp. 2012).4 The party seeking modification has the burden to establish these elements by

a preponderance of the evidence. See Zeifman, 212 S.W.3d at 589 (addressing modification of

conservatorship).

                Charles argues that the evidence is legally and factually insufficient to support the

district court’s implied finding that the requisite material and substantial change had occurred. He

suggests that because the original decree did not specify the parties’ financial status at the time,

evidence of Melissa’s current financial circumstances did not suffice to establish a material

and substantial change. He also emphasizes that Melissa testified that she currently has some

money left over from the sale of her home and that, in his view, she failed to present evidence

that she was unable to obtain employment. To the extent that Charles is contending that Melissa was

categorically required to show that she has no money, was unable to obtain employment, or that the

decree had to include specific baseline financial information regarding the parties in order to show

a significant and material change in circumstances, we reject those premises. Rather, the proper

focus is whether the evidence Melissa provided concerning her historical and current financial

circumstances, that of Charles, and that of their child was sufficient to enable the district court to

examine and compare the circumstances at the time of the initial order with the circumstances

existing at the time of modification in order to determine whether there had been a material and



       4
           The full text of section 156.401(a-1) is—

       If the parties agree to an order under which the amount of child support differs from
       the amount that would be awarded in accordance with the child support guidelines,
       the court may modify the order only 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) (West Supp. 2012).

                                                  7
substantial change. See In re C.C.J., 244 S.W.3d 911, 917-18 (Tex. App.—Dallas 2008, no pet.)

(citing In re J.R.D., 169 S.W.3d 740, 743-44 (Tex. App.—Austin 2005, pet. denied)). And she

did so here.

               Regarding historical evidence of her financial circumstances, Melissa testified that

at the time of the divorce she was earning approximately $100,000 per year and was living in

her own home with no mortgage payment, though she was required to pay property taxes. As to her

current financial status, she testified that she lost her job in 2008 and remained unemployed. She

testified that she had sold her cars, her home, and other possessions, while also borrowing money

from others. Melissa also testified that since the divorce, Charles had become the sole beneficiary

to a trust worth between $500,000 and $750,000. She also testified to the increased financial needs

of M.P., which included certain new costs, such as academic fees for college entrance exams.

Further, the agreed decree of divorce provided that each party would provide for M.P.’s needs while

he was in that parent’s actual possession. While the decree contemplated a shared arrangement,

Charles was incarcerated after the divorce decree was signed and, consequently, Charles has rarely,

if ever, had possession of M.P. Charles did not dispute any of Melissa’s testimony regarding the

changed circumstances surrounding the parties and their child.

               This evidence is both legally and factually sufficient evidence to support a finding

that circumstances had changed substantially and materially since the rendition of the original decree.

As such, the district court did not abuse its discretion in determining that modification was

warranted.

               We overrule Charles’s fourth issue.




                                                  8
The modification

                Having determined that modification was authorized under the family code, we turn

to Charles’s remaining issues, which challenge the portions of the modification order requiring him

to pay future child support in the amount of $885 per month and arrearages of $9,735 based on

retroactive application of that monthly amount. All three issues concern the district court’s decision

to deviate from the statutory guidelines established by the Legislature for the award of child support.

See Tex. Fam. Code Ann. § 154.122 (West 2008).

                Under these guidelines, the application of which is rebuttably presumed to be in the

child’s best interest, see id. § 154.122(a), trial courts determine the appropriate level of support based

on net resources available, which include the following:


        (1)     100 percent of all wage and salary income and other compensation for
                personal services (including commissions, overtime pay, tips, and bonuses);

        (2)     interest, dividends, and royalty income;

        (3)     self-employment income;

        (4)     net rental income (defined as rent after deducting operating expenses and
                mortgage payments, but not including noncash items such as depreciation);
                and

        (5)     all other income actually being received, including severance pay, retirement
                benefits, pensions, trust income, annuities, capital gains, social security
                benefits other than supplemental security income, unemployment benefits,
                disability and workers’ compensation benefits, interest income from notes
                regardless of the source, gifts and prizes, spousal maintenance, and alimony.


Id. § 154.062(b) (West Supp. 2012).5 Courts must require parties to provide this information to the

court. Id. § 154.063 (West 2008).

        5
          In 2011, the Legislature made certain revisions to the statute that are not implicated by
this appeal. We cite to the most current version of the statute for convenience.

                                                    9
                In the absence of evidence of wage and salary income, courts must presume

that the party has wages or salary equal to the federal minimum wage for a forty-hour week. Id.

§ 154.068 (West 2008); Monroy v. Monroy, No. 03-10-00275-CV, 2011 WL 3890401, at *5

(Tex. App.—Austin Aug. 31, 2011, pet. denied) (mem. op.). Incarceration alone does not

rebut the minimum-wage presumption, and there is no legal presumption that an inmate has

no assets. Monroy, 2011 WL 3890401, at *5 (citing In re M.M., 980 S.W.2d 699, 700-01

(Tex. App.—San Antonio 1998, no pet.)).             Courts consider these resources, then deduct

certain expenses to determine the net monthly resources available. See Tex. Fam. Code Ann.

§§ 154.061-.062 (West 2008 & Supp. 2012). Next, the courts apply an assigned percentage—here,

20%—to the first $7,500 of those net monthly resources. See id. (West Supp. 2012).

                The family code allows courts to deviate from the guidelines in situations where its

application would be “unjust” or “inappropriate” under the circumstances. See id. § 154.122(b). In

determining whether application of the guidelines would be unjust and inappropriate, courts must

consider several issues, including “any financial resources available for the support of the child,” as

well as the “amount of the obligee’s net resources including the earning potential of the obligee if the

actual income of the obligee is significantly less than what the obligee could earn because the obligee

is intentionally unemployed or underemployed and including an increase or decrease in the income

of the obligee or income that may be attributed to the property or assets of the obligee . . . .” Id.

§ 154.123(b) (West 2008). The court may also consider “any other reason consistent with the

best interest of the child, taking into consideration the circumstances of the parties.”             Id.

§ 154.123(b)(17). If a trial court determines that application of the guidelines is not appropriate, the

court must include in its order modifying child support certain statutorily required findings. See id.

§ 154.130(b) (West Supp. 2012).


                                                  10
               The district court made the following findings concerning the basis for its award of

$885 per month in child support:


       1.      The application of the percentage guidelines in this case would be unjust or
               inappropriate.

       2.      The net resources of Charles Perry Norris per month are $3300.00.

       3.      The net resources of Melissa M. Norris per month are $0.

       4.      The percentage applied to the first $7,500 of Charles Perry Norris’s net
               [monthly] resources for child support is 20 percent.

       5.      The specific reasons that the amount of support per month ordered by the
               Court varies from the amount computed by applying the percentage
               guidelines of section 154.125 of the Texas Family Code are: the Court found
               this variation to be in the best interest of the child based upon the anticipated
               resources of Charles Perry Norris, who is determined to be capable of earning
               minimum wage in addition to his net resources.


See id. The import of the district court’s findings is that it awarded monthly child support

representing (1) the application of the statutorily-prescribed percentage of 20% to the $3,300 it found

to be Charles’s net monthly resources, yielding a monthly child-support payment of $660; plus

(2) 20% of $1,125, a figure roughly equal to the after-tax monthly earnings of a person earning the

federal minimum wage ($7.25 per hour) for a forty-hour week, taking the standard deduction

and claiming one personal exemption,6 yielding $225, for a total of $885 per month. Charles’s first

two issues challenge the latter component of the award, and his third issue challenges the former.


       6
           The district court noted that the standard minimum wage child support for one child was,
at that time, $225. This figure is in line with the tax charts promulgated by the attorney general to
assist in calculating an obligor’s net income for child support purposes. See Tex. Fam. Code Ann.
§ 154.061(b) (West 2012). The relevant tax chart is printed in the annotated statutes and prior years’
charts are also available on the attorney general’s website. See Office of the Attorney General
2011 Tax Charts, https://www.oag.state.tx.us/cs/taxcharts/2011taxchart.pdf (last visited Feb. 22,
2013).

                                                  11
        Earning capacity

                Charles’s first two issues are premised on the view that the district court determined

that he was capable of earning more than minimum wage, determined his monthly net resources of

$3,300 based on his earning capacity, and deviated from the guidelines on that basis. This view is

predicated on oral statements that the district court made during the modification hearing. In his first

issue, Charles fixes upon a statement by the district court to the effect that Charles “should be able to

earn, at least, $4,000 a month on top of the minimum wage job using the assets available for him and

any skills that might be available work beyond minimum wage.” Charles perceives this statement

as tantamount to a finding by the district court that he was intentionally unemployed and that this

is why it deviated from the guidelines. Based on that premise, he argues that the district court abused

its discretion in deviating from the guidelines because the evidence showed Charles was currently

incarcerated and had only ever been employed at a minimum-wage or low-wage job, and because

there was no evidence that he had any education, skills, or training to assist him in obtaining

higher paying employment such that he could be considered to be intentionally unemployed or

underemployed. See id. § 154.123(b). Similarly, in his second issue, Charles complains of an oral

statement by the district court that, “[G]iven his age, [Charles] should be able to do better than a

minimum wage job,” and urges that the court improperly used his age to determine his earning

potential or capacity.

                While Charles takes issue with certain oral statements made by the district court

and seems to believe that the $3,300 net resources figure found by the court is based on his

earning potential in light of his age, only the court’s findings of fact and conclusions of law are

material to our review, and they state otherwise. See In re W.E.R., 669 S.W.2d 716, 716 (Tex. 1984)

(per curiam). What the district court found in regard to Charles’s earning potential, as previously


                                                   12
indicated, was that Charles “is determined to be capable of earning minimum wage”—a fact that

Charles does not dispute and which the family code presumes in the absence of other evidence,

see Tex. Fam. Code Ann. § 154.068—and that the deviation from the guidelines was warranted

because Charles could earn these amounts “in addition to his net resources,” necessarily assets other

than a salary because he had no job during his incarceration. The district court made no other

finding relating to earning potential, intentional unemployment, or intentional underemployment

in deviating from the guidelines. And given the district court’s discretion to consider “any other

reason consistent with the best interests of the child, taking into consideration the circumstances of

the parents,” see id. § 154.123(b)(17), and on this record, we cannot say that it abused its discretion

in deviating from the guidelines to award additional monthly child support predicated on Charles’s

capability of earning minimum wage. Accordingly, we overrule Charles’s first and second issues

on appeal.


       Net monthly resources

               In his third issue, Charles challenges the district court’s finding that he has net

monthly resources of $3,300. Charles argues that there is no evidence or insufficient evidence to

support any determination regarding the nature, value, and liquidity of any assets he may have had

in determining his net resources and establishing his child-support obligation.

               Section 154.062 of the family code instructs the district court to calculate net

resources for the purpose of determining child-support liability. Id. § 154.062. There must be some

evidence of a substantive and probative character of net resources in order for this duty to be

discharged. Newberry v. Bohn-Newberry, 146 S.W.3d 233, 236 (Tex. App.—Houston [14th Dist.]

2004, no pet.). When determining the net resources available for child support, the court may assign



                                                  13
a reasonable amount of deemed income attributable to assets that do not currently produce income.

Tex. Fam. Code Ann. § 154.067(a) (West 2008). The court may also assign a reasonable amount

of deemed income to income-producing assets that a party has voluntarily transferred or on which

earnings have intentionally been reduced. Id. § 154.067(b).

               Here, Melissa testified that, after the death of his mother, Charles inherited a trust

worth between $500,000 and $750,000. She also testified that Charles closed his account with the

bank that administered the trust. She further testified that she viewed statements indicating that he

had over $500,000 in an Ameritrade account.

               Charles urges that no trust or Ameritrade statements were introduced into evidence

to support these amounts, and that no representatives from any bank testified to support Melissa’s

assertions. He further complains that Melissa did not specify the date of any statements she saw, or

as to character of the account—whether it was comprised of stocks, bonds, or other funds. He

further contends that there was no testimony regarding the liquidity of the Ameritrade account, and

no testimony that the alleged Ameritrade account belonged solely to Charles.

               While Charles depicts Melissa’s testimony as “nothing more than mere speculation”

about his assets and thus no evidence to support the district court’s findings, we conclude instead

that it was legally sufficient and that his current complaints would have been more appropriate

topics for cross-examination at trial. Melissa’s testimony about the assets was not tested in cross-

examination,7 nor was it controverted with financial records or any other evidence. Melissa’s

uncontroverted testimony was some evidence of a substantive and probative character of Charles’s

net resources. Accordingly, we conclude that there was legally and factually sufficient evidence

       7
         Indeed, it appears from trial counsel’s statements to the court that, in fact, he had the
Ameritrade statements in his possession and was the person who provided them to Melissa in
advance of her testimony.

                                                 14
to support the district court’s order and thus, the district court did not abuse its discretion. See

Newberry, 146 S.W.3d at 236 (uncontroverted testimony that appellant earned $150,000 per year was

some evidence to support child-support award); Monroy, 2011 WL 3890401, at *6 (court did

not abuse discretion in basing child-support award on only evidence in the record—appellee’s

undisputed testimony regarding appellant’s income and proceeds from joint real estate sale); Lozano

v. Lozano, No. 13-08-00536-CV, 2009 WL 4882816, at *9 (Tex. App.—Corpus Christi Dec. 17,

2009, no pet.) (mem. op.) (court did not abuse discretion in relying on appellee’s uncontroverted

testimony regarding appellant’s income to determine child-support award); see also In re N.T.,

335 S.W.3d 660, 666-67 (Tex. App.—El Paso 2011, no pet.) (court did not abuse discretion in

relying on appellee’s testimony concerning appellant’s earnings in determining child-support despite

appellant’s controverting evidence).

               Charles also complains of the district court’s specific conclusion that his assets

provided him with a net monthly income of $3,300. The uncontroverted evidence indicated that

Charles had assets in excess of $500,000. Viewed in the light most favorable to the trial court’s

decision, the court’s determination that those assets could produce $3,300 per month was not

arbitrary or unreasonable. Because some evidence of a substantive and probative character supports

the trial court’s decision, Charles has failed to show reversible error. Accordingly, we overrule

Charles’s third issue.


                                         CONCLUSION

               Having overruled each of Charles’s issues on appeal, we affirm the district court’s

modification order.




                                                15
                                           __________________________________________

                                           Bob Pemberton, Justice

Before Justices Puryear, Pemberton and Field

Affirmed

Filed: February 27, 2013




                                               16
