Opinion filed November 21, 2013




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-11-00330-CV
                                  __________

                     WILLIE ABALOS, JR., Appellant

                                        V.

                  WENDIE CAROL ABALOS, Appellee


                On Appeal from the County Court at Law No. 2
                             Midland County, Texas
                        Trial Court Cause No. FM-50,265



                     MEMORANDUM OPINION
      This appeal arises from a divorce proceeding involving a minor child.
Appellant, Willie Abalos, Jr., raises two issues for our review, both of which are
related to child support. Because we find that the trial court abused its discretion
when it ordered Appellant to pay a total amount of $5,500 in child support, we
reverse and remand in part and affirm in part.
      In his first issue, Appellant argues that the trial court abused its discretion
when it ordered him to pay $2,100 per month to Appellee, Wendie Carol Abalos,
as child support for the parties’ minor child and $3,400 per month to Appellee for
tuition at Evangel House Christian Academy as additional child support.
Appellant argues that the trial court did not follow the child support guidelines
under the Texas Family Code when it set the child support amount. Appellant
asserts in his second issue that the trial court erred when it failed to file its findings
of fact and conclusions of law under the Texas Rules of Civil Procedure and under
the Texas Family Code.
      We will first address Appellant’s second issue. Appellant filed his request
for findings of fact and conclusions of law on October 17, 2011. He requested
findings under TEX. R. CIV. P. 296.             The trial court’s findings of fact and
conclusions of law were due on or about November 7, 2011.                  See TEX. R.
CIV. P. 297. Appellant did not file a proper past-due notice as required under
Rule 297. Although Appellant’s notice of appeal contained a statement that the
findings of fact and conclusions of law had not been filed as of November 11 and
November 14, 2011, the notice did not contain a statement of when the request was
filed or when the findings were due as required by Rule 297. Because Appellant
did not file a proper past-due notice, he has waived his complaint on appeal that
the trial court erred when it failed to file findings of fact and conclusions of law
under Rule 297. Las Vegas Pecan & Cattle Co. v. Zavala Cnty., 682 S.W.2d 254,
255–56 (Tex. 1984).
      In addition to his Rule 297 argument, Appellant also argues that the trial
court was required to make certain findings under the Texas Family Code because
the court deviated from the Code’s child support guidelines. Section 154.130 of
the Texas Family Code requires the trial court to make certain findings when it
renders an order of child support if (1) a party files a written request for findings
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within ten days of the hearing, (2) a party makes an oral request at the hearing, or
(3) the amount of child support ordered by the trial court varies from the amount
calculated when the percentage guidelines are applied. TEX. FAM. CODE ANN.
§ 154.130(a) (West Supp. 2013).
      In situations where the obligor’s net resources exceed $7,500 per month, the
trial court shall apply the percentage guidelines to the first $7,500 of the obligor’s
net resources. Id. § 154.126(a) (West 2008). Appellee agreed that, at a prior
hearing, it was revealed that Appellant made approximately $16,000 to $17,000 a
month.    Appellant did not produce any evidence to the contrary.          Under the
percentage guidelines, child support amount for one child is set at twenty percent
of net monthly resources.      Id. § 154.125(b) (West Supp. 2013).         When the
percentage guidelines are applied to the first $7,500 of Appellant’s net resources,
he is required to pay $1,500 per month in child support. Appellant agreed that he
would pay the maximum amount based on $7,500 of net monthly resources.
Therefore, the amount of $1,500, as calculated under the percentage guidelines, is
not in dispute.
      The amount of additional support awarded by the trial court is, however, in
dispute. Under the Family Code, the trial court may order the payment of child
support in addition to the amount provided in the percentage guidelines depending
on the income of the parties and the proven needs of the child. Id. § 154.126(a).
The percentage guidelines do not apply to the additional amount of child support
awarded. Id. “Because the percentage guidelines do not apply to net monthly
resources exceeding [$7,500], section 154.130 does not apply to child support
awarded from those resources.” Yarbrough v. Yarbrough, 151 S.W.3d 687, 692
(Tex. App.—Waco 2004, no pet.) (citing Hatteberg v. Hatteberg, 933 S.W.2d 522,
528–29 (Tex. App.—Houston [1st Dist.] 1994, no writ.)). Therefore, the trial court
was not required to make certain findings under Section 154.130(a)(3).
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      Furthermore, the final hearing was held on December 6, 2010. Appellant
did not file his request for findings within ten days of the hearing, nor did he make
an oral request for findings at the hearing. Thus, the trial court was also not
required to file findings under Section 154.130(a)(1) or (2). The trial court did not
err when it did not file findings of fact or conclusions of law under the Texas Rules
of Civil Procedure or under the Texas Family Code. We overrule Appellant’s
second issue.
      In his first issue, Appellant asserts that the trial court abused its discretion
when it ordered him to pay a total amount of $5,500 in child support. When the
trial court does not render findings of fact and conclusions of law, we presume that
it made all the necessary findings to support its judgment as long as the record
supports such findings. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990);
Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986).
      The trial court ordered Appellant to pay $2,100 per month in child support to
Appellee. In addition, the trial court ordered Appellant to pay $3,400 per month to
Appellee for tuition payments to Evangel House Christian Academy, where the
minor child resided. The trial court ordered the tuition payments as additional
child support. The cost of tuition at Evangel House was $5,400 per month.
      Under the child support guidelines in the Texas Family Code, the trial court
was required to apply the percentage guidelines to the first $7,500 of Appellant’s
net resources as discussed above. See FAM. § 154.126(a). Depending on the
income of the parties and the proven needs of the child, the trial court was
permitted to order additional amounts of child support as appropriate. Id. “The
proper calculation of a child support order that exceeds the presumptive amount . .
. requires that the entire amount of the presumptive award be subtracted from the
proven total needs of the child.” Id. § 154.126(b). The trial court shall allocate the
remaining amount between the parties according to the parties’ circumstances. Id.
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However, the obligor may not be ordered to pay child support that exceeds 100%
of the proven needs of the child. Id.
       The only monetary figure established at the final hearing for the expenses of
the minor child was $5,400, the cost of tuition at the boarding school. Appellee
testified that she had used the child support money that she received from
Appellant to take the child shopping, to buy her things that she needed, and for
travel expenses; however, Appellee did not provide a monetary amount that was
necessary to cover such expenses.
       Appellee argues that the child support evidence is unclear because the trial
court took judicial notice of all the prior proceedings. She argues that, even though
such proceedings are not a part of the appellate record, it is presumed that the trial
court made the proper findings. We disagree with this assertion. When the trial
court does not file findings of fact and conclusions of law, the trial court is
presumed to have found facts in favor of its judgment if there is evidence to
support the judgment. Allen, 717 S.W.2d at 313. Here, there is no evidence to
support the trial court’s order that Appellant pay an amount of $5,500 per month in
child support. As Appellee points out, the prior proceedings are not before us on
appeal. Furthermore, it was not proper for the trial court to take judicial notice of
the truth of factual statements contained in prior testimony for evidentiary
purposes. Guyton v. Monteau, 332 S.W.3d 687, 692–93 (Tex. App.—Houston
[14th Dist.] 2011, no pet.). In order for testimony from prior hearings to be
considered in the final hearing, the transcripts from the prior hearings must be
properly authenticated and admitted into evidence. Id. at 693. When the trial court
takes improper judicial notice of evidence, the evidence amounts to no evidence at
all. Id.
       Therefore, assuming that boarding school was a proven need of the child, the
total amount required to cover such need was $5,400. No other evidence was
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presented to show the needs of the child. The trial court ordered Appellant to pay a
total amount of $5,500 in child support. This amount was more than 100% of the
proven needs of the child as shown in the evidence. The trial court abused its
discretion when it ordered Appellant to pay for more than 100% of the proven
needs of the child. Appellant’s first issue on appeal is sustained.
      We reverse the trial court’s judgment only insofar as it ordered that
Appellant pay child support in the amount of $2,100 and in the additional amount
of $3,400 per month. We remand the cause to the trial court for it to determine the
proper amount of child support to be paid by Appellant. In all other respects, we
affirm the judgment of the trial court.



                                                     JIM R. WRIGHT
                                                     CHIEF JUSTICE


November 21, 2013
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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