                                                                         ACCEPTED
                                                                     06-15-00001-CV
                                                          SIXTH COURT OF APPEALS
                                                                TEXARKANA, TEXAS
                                                                 5/7/2015 2:28:03 PM
                                                                    DEBBIE AUTREY
                                                                              CLERK

             NO. 06-15-00001-CV

                                                    FILED IN
                                             6th COURT OF APPEALS
                                               TEXARKANA, TEXAS
                                             5/7/2015 2:28:03 PM
     IN THE SIXTH COURT OF APPEALS
                                                 DEBBIE AUTREY
            TEXARKANA, TEXAS                         Clerk




IN THE INTEREST OF C.W.R. AND I.S.R., CHILDREN




      Appeal from the County Court at Law,
Bowie County, Texas; Cause No. 10-D-0452-CCL




            BRIEF OF APPELLEE




                     C. David Glass
                     Texas State Bar No. 24036642
                     dglass@smithweber.com
                     SMITH WEBER, L.L.P.
                     5505 Plaza Drive - P. O. Box 6167
                     Texarkana, TX 75505-5517
                     Telephone: (903)223-5656
                     Facsimile: (903)223-5652

                     Attorney for Appellee
                 IDENTITY OF PARTIES AND COUNSEL


Appellant:                             Appellee:

SCOTT ROBERTSON                        MISTY BROWN

Counsel for Appellant:                 Counsel for Appellee:
Kristian Young                         C. David Glass
kristiand@windstream.net               dglass@smithweber.com
210 North Stateline Avenue             SMITH WEBER, L.L.P.
Texarkana, Arkansas 71854              5505 Plaza Drive / P. O. Box 6167
Tel: (903)277-4008                     Texarkana, Texas 75505-5517
Fax: (870)779-8444                     Tel: (903)223-5656
                                       Fax: (903)223-5652




Trial Court:

Honorable Judge Jeff M. Addison
Bowie County Courthouse
710 James Bowie Drive
New Boston, Texas 75570
Tel: (903) 628-6835
Fax: (903) 628-2217




                                  ii
                                         TABLE OF CONTENTS

Identity of Parties and Counsel ................................................................................. ii

Table of Contents ..................................................................................................... iii

Index of Authorities ................................................................................................... v

Statement of the Case .............................................................................................. vii

Statement Regarding Oral Argument ..................................................................... viii

Issues Presented.........................................................................................................ix

         1.       Whether the trial court erred in denying Appellant’s requested
                  modification when Appellant failed to establish a material and
                  substantial change in circumstances; and
         2.       Whether the trial court erred by any failure to apply the child
                  support guidelines set forth in the Texas Family Code to
                  Appellant’s income following (i) Appellant’s failure to establish a
                  material and substantial change in circumstances; (ii) receiving
                  conflicting evidence as to Appellant’s claims for relief; and (iii)
                  receiving evidence of other relevant factors to include Appellant’s
                  earning potential, income and available resources, provision for
                  healthcare insurance, and other reasons consistent with the best
                  interest of the children.

Statement of Facts ..................................................................................................... 1

Summary of Argument ............................................................................................... 4

Argument & Authority ............................................................................................... 5

         I.       Standard of Review ............................................................................... 5

         II.      Trial Court did not Err in Denying Requested Relief ............................ 8
                  A.        No Material & Substantial Change ............................................. 8

                                                            iii
                   B.        Factors Supporting Denial of Relief............................................ 9
                   C.        Application of Guidelines is Discretionary ............................... 14

         III.      Conclusion ........................................................................................... 15

Prayer ....................................................................................................................... 16

Certificate of Compliance ........................................................................................ 17

Certificate of Service ................................................................................................ 17




                                                               iv
                                    INDEX OF AUTHORITIES


Cases                                                                                                 Page(s)

Coburn v. Moreland, 433 S.W.3d 809
(Tex. App. – Austin 2014, no pet.)............................................................................. 8

In re A.L.E., 279 S.W.3d 424 (Tex. App. – Houston [14th Dist.] 2009, no pet.) ....... 8

In re Barber, 982 S.W.2d 364 (Tex. 1998)(orig. proceeding) ................................... 6

In re E.A.E., 2010 Tex. App. Lexis 7661
(Tex. App. – Ft. Worth Sept. 16, 2010, pet denied) ................................................... 6

In re K.C.B., 2014 Tex. App. Lexis 1512
(Tex. App. – Texarkana, Feb. 12, 2014) ................................................................ 5, 8

In re Z.B.P., 109 S.W.3d 772 (Tex. App. – Fort Worth 2003, no pet.) ..................... 5

Lozano v. Lozano, 2009 Tex. App. Lexis 9620
(Tex. App. – Corpus Christi Dec. 17, 2009, no pet.) ............................................. 5, 6

Renfro Drug Co. v. Lewis, 235 S.W.2d 609 (Tex. 1950) ....................................... 7, 8

Stocker v. Magera, 807 S.W.2d 753
(Tex. App. – Texarkana 1990, writ denied) .............................................................. 7

Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990) ............................................ 5, 7, 8


Statute, Rules and Regulations

TEX. FAM. CODE ANN. §154.066 ................................................................................ 7

TEX. FAM. CODE ANN. §154.067 ................................................................................ 7

TEX. FAM. CODE ANN. §154.123(b) ........................................................................... 7

                                                       v
TEX. FAM. CODE ANN. §156.401(a) ........................................................................... 5

TEX. FAM. CODE ANN. §156.402 ............................................................................ 5, 6




                                                     vi
                           STATEMENT OF THE CASE

       Appellant, Scott Elliott Robertson, (“Robertson”), initiated a modification

proceeding on March 28, 2014, seeking extended standard possession and a reduction

in child support. [C.R. pp. 43-55.] This was the second such modification proceeding

initiated by Robertson subsequent to the entry of the Agreed Final Decree of Divorce.

[Id. at pp. 30-42.] The order sought to be modified was an Order in Suit to Modify

Parent-Child Relationship entered on November 27, 2013, in the first modification

proceeding. [Id. at p. 43, ¶3; see also pp. 30-42.] In response, Appellee, Misty Brown,

(“Brown”), answered Robertson’s motion and filed a motion for enforcement due to

Robertson’s ongoing failure to pay child support. [Id. at pp. 58-74.]

       A hearing was held on December 12, 2014, before the Honorable Judge Jeff M.

Addison. In the Order that followed, Robertson was granted extended standard

possession and his request to modify support was again denied. [C.R. pp. 77-91.] As

to Brown’s enforcement, although the Order did not find Robertson in contempt for his

failures to pay support, a judgment was rendered against Robertson in the amount of

$4,900.00 for child support arrearages. [Id. at pp. 87-88; and R.R. Vol. 1, p. 101, ll. 5-

12.]




                                           vii
              STATEMENT REGARDING ORAL ARGUMENT

      The issues presented to this Court on appeal are not such that oral argument is

necessary. As such, Appellee does not request oral argument.




                                        viii
                             ISSUES PRESENTED

1.   Whether the trial court erred in denying Appellant’s requested modification
     when Appellant failed to establish a material and substantial change in
     circumstances; and

2.   Whether the trial court erred by any failure to apply the child support guidelines
     set forth in the Texas Family Code to Appellant’s income following (i)
     Appellant’s failure to establish a material and substantial change in
     circumstances; (ii) receiving conflicting evidence as to Appellant’s claims for
     relief; and (iii) receiving evidence of other relevant factors to include
     Appellant’s earning potential, income and available resources, provision for
     healthcare insurance, and other reasons consistent with the best interest of the
     children.




                                         ix
                                  STATEMENT OF FACTS

        Robertson and Brown entered into an Agreed Final Decree of Divorce in May

2010. [C.R. pp. 4-29.] Therein, Robertson agreed to pay $1,600.00 per month in child

support as well as twenty-five percent (25%) of any real estate commissions. [Id. at p.

13.] Brown agreed to provide health insurance for the benefit of the children at her

sole cost and expense. [Id. at p. 16-17; see also R.R. Vol. 1, p. 52, l. 22 to p. 53, l. 1.]

        Following the filing of competing motions to modify and motions for

enforcement, an Order in Suit to Modify Parent-Child Relationship issued on

November 27, 2013, hereinafter (“2013 Modification Order”). [C.R. pp. 30-42.]

Therein, the trial court granted in part and denied in part the parties’ requested

modification. [Id. at p. 31.] As for Robertson’s child support obligations, the trial

court granted a judgment in favor of the Attorney General against Robertson in the

amount of $38,319.49 for child support arrearages.1 [Id. at 36.] Additionally, despite

Robertson’s requests to curtail his financial obligations to Brown for the benefit of the

children, the trial court found that “[a]ll other terms of the prior child support order not



1
  The findings of the trial court are in direct contradiction to the assertions made in Robertson’s brief
to this Court. Specifically, there was no finding that the $38,319.49 in arrearages was a “gift” or that
Robertson actually paid the funds directly to Brown. [See Appellant Brief at p. 24.] To the contrary,
there were findings that child support and balances on previous confirmed arrearages or retroactive
child support judgement were not paid. [C.R. p. 36 (emphasis added).] As such, a judgment was
rendered in favor of the intervening Attorney General in the amount of $38,319.49 to be paid as
additional support to Brown at the rate of $500.00 per month beginning October 1, 2013. [Id.]

                                                   1
specifically modified in this order shall remain in full force and effect,” i.e. child

support is not modified in any respect. [C.R. p. 36.]

       Robertson initiated another modification proceeding on March 28, 2014,

approximately four (4) months after entry of the 2013 Modification Order, again

requesting the trial court revisit the possession order and child support. [C.R. pp. 43-

55.]   Therein, Robertson requested modification of the orders pronounced on

September 26, 2013, and memorialized in the 2013 Modification Order. [Id. at p. 43 at

¶3; see also pp. 30-42.] As to his child support obligations, in his March 28, 2014,

Petition to Modify Parent-Child Relationship, Robertson claimed a material and

substantial change during the four (4) month period since the date of the rendition of

the prior order for which he sought modification.2 [Id. at p. 45.]

       Robertson’s Motion to Modify and a Motion for Enforcement filed by Brown

proceeded to trial before the bench on December 12, 2014. [C.R. p. 77.] An Order in

Suit to Modify Parent-Child Relationship and for Judgment on Child Support

followed, hereinafter (“2014 Modification Order”). [Id. at pp. 77-91.] Therein, the

trial court found granting Robertson extended standard possession to be in the best


2
  Despite the assertions made in his brief, the order requested to be modified by Robertson was the
order pronounced on September 26, 2013, and entered on November 27, 2013, and not the “Decree
of Divorce.” [See Appellant Brief at p. 8; see also C.R. 43 at ¶3; and R.R. Vol. 1, p. 9, ll. 11-14.]
As such, the relief pled by Robertson and requested at trial was modification of the 2013
Modification Order. [Id.]

                                                 2
interest of the children. [C.R. p. 78.] As such, the requested relief was granted and the

prior order was modified. As to the requested modification to decrease Robertson’s

child support obligations, the court found insufficient evidence of a material and

substantial change warranting modification of child support. [Id. at p. 87.] Moreover,

the court found the requested modification was not in the best interest of the children.

[Id.] As such, the requested relief to modify child support was denied.

       As for Brown’s enforcement action, the trial court again found Robertson had

failed to make payments for the support of his children as previously ordered. [C.R. p.

88.] The court, however, issued no finding of contempt against Robertson for such

failures. [Id.; see also R.R. Vol. 1, p. 101, ll. 5-12.]




                                             3
                           SUMMARY OF ARGUMENT

      Due to Robertson’s failure to establish a material and substantial change in

circumstances, the trial court did not err in denying the requested relief to reduce his

child support obligations. Moreover, Robertson failed to demonstrate any requirement

and/or failure of the trial court to apply the facts of his case to the child support

guidelines set forth in the Texas Family Code. As such, the order of the trial court

should be, in all things, affirmed.




                                           4
                           ARGUMENT & AUTHORITY

I.     Standard of Review

       A child support order may be modified on a showing the circumstances of a

person affected by the order have “materially and substantially changed” since the

order sought to be modified was signed. TEX. FAM. CODE ANN. §156.401(a). The

movant has the burden to prove by a preponderance of evidence that a material and

substantial change in circumstances has occurred. In re Z.B.P., 109 S.W.3d 772, 781

(Tex. App. – Fort Worth 2003, no pet.). The best interest of the children is always the

paramount consideration. TEX. FAM. CODE ANN. §156.402.

       The trial court is accorded broad discretion in setting and modifying child

support payments and a child support order will not be disturbed on appeal unless a

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

1990). That is, a showing the trial court acted without reference to any guiding rules or

principles, i.e. acted arbitrarily or unreasonably. Id.; see also In the Interest of K.C.B.,

2014 Tex. App. Lexis 1512, *14 (Tex. App. – Texarkana Feb. 12, 2014)(J. Carter).

The evidence is viewed on appeal in the light most favorable to the trial court's action

and every presumption is indulged in favor of the judgment. Lozano v. Lozano, 2009

Tex. App. Lexis 9620, *21 (Tex. App. – Corpus Christi Dec. 17, 2009, no pet.). If

"some probative and substantive evidence supports the trial court's findings, [it] did not


                                             5
abuse its discretion." Lozano at 21-22. A trial court does not abuse its discretion when

it bases its decision on conflicting evidence. In re Barber, 982 S.W.2d 364, 366 (Tex.

1998)(orig. proceeding).

      When a trial court is considering whether to modify an existing child support

order, its compliance with the statutory guidelines is discretionary, not mandatory. In

the Interest of E.A.E., 2010 Tex. App. Lexis 7661, *17 (Tex. App. – Ft. Worth Sept.

16, 2010, pet denied). The Texas Family Code reads as follows, in relevant part:

      (a)    The trial court may consider the child support guidelines . . . to
      determine whether there has been a material and substantial change of
      circumstances . . . that warrants a modification of an existing child
      support order if the modification is in the best interest of the child.

      (b)    If the amount of support contained in the order does not
      substantially conform with the guidelines . . . the court may modify the
      order to substantially conform with the guidelines if the modification is in
      the best interest of the child. A court may consider other relevant
      evidence in addition to the factors listed in the guidelines. TEX. FAM.
      CODE ANN. §156.402 (emphasis added).

A prior order that is not in compliance with the guidelines does not by itself establish a

material and substantial change in circumstances. In the Interest of E.A.E. at *17.

While a court may modify an order to conform to the guidelines, the proponent of the




                                            6
modification must first satisfy his burden of demonstrating a material and substantial

change in circumstances.

      In considering whether to modify a prior child support order, other relevant

factors the trial court may consider include the earning potential of the obligee,

intentional unemployment or underemployment, deemed income attributable to assets

that do not currently produce income, income that may be attributed to the property and

assets of the obligee, provision for healthcare insurance and any other reason consistent

with the best interest of the children. TEX. FAM. CODE ANN. §154.066, 154.067 and

154.123(b). Trial courts are permitted to consider the earning potential of a voluntarily

unemployed or underemployed parent. Stocker v. Magera, 807 S.W.2d 753, 755 n.3

(Tex. App. – Texarkana 1990, writ denied). In situations where the parent’s actual

income is significantly less than he could earn because of intentional

underemployment, the court may apply the child support guidelines to his earning

potential. TEX. FAM. CODE ANN. § 154.066.

      Where, as in this case, no findings of fact or conclusions of law were requested

or filed, it is implied that the trial court made all findings necessary to support its

judgment. Worford v. Stamper, 801 S.W.2d at 109. The appellate court considers

"'only that evidence most favorable to the issue and [disregards] entirely that which is

opposed to it or contradictory in its nature.'" Id; quoting Renfro Drug Co. v. Lewis,


                                           7
235 S.W.2d 609, 613 (Tex. 1950). The judgment must be affirmed if upheld on any

legal theory that finds support in the evidence. Id. Moreover, the appellate court

defers to the trial court to resolve "conflicts in the evidence and to determine the

weight to be given the testimony." In re K.C.B., 2014 Tex. App. Lexis 1512 at *16.

Stated another way, since the trial court is in the best position to “observe and assess

the witnesses’ demeanor and credibility, and to sense the ‘forces, powers, and

influences’ that may not be apparent from merely reading the record on appeal,”

deference is given to the trial court’s judgment in matters involving factual resolutions

and credibility determinations. Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.

– Austin 2014, no pet.); quoting In re A.L.E., 279 S.W.3d 424, 427 (Tex. App. –

Houston [14th Dist.] 2009, no pet.).

II.   Trial Court did not Err in Denying Requested Relief

      A.     No Material & Substantial Change in Circumstances

      In his Petition to Modify Parent-Child Relationship, Robertson asks the trial

court to modify its 2013 Modification Order confirming the amount of support

previously agreed upon by the parties and ordered by the court. [C.R. p. 43 at ¶ 3 –

“The order to be modified is entitled Order in Suit to Modify Parent-Child Relationship

and was rendered on September 26, 2013”; see also R.R. Vol. 1, p. 9, ll. 11-14.] This

Petition to Modify was filed on March 28, 2014, some six (6) months after the prior


                                           8
hearing and four (4) months after entry of the prior order. [C.R. pp. 43-55.] In the

2014 Petition to Modify, Robertson claims a material and substantial change in

circumstances has occurred since the rendition of the 2013 Modification Order. [Id. p.

45 at ¶ 10.]

      Robertson’s claims of a material and substantial change in circumstances are

contrary to the evidence offered to the trial court. He failed to present sufficient

evidence to the court of a material and substantial change in circumstances since the

rendition of the order sought to be modified, i.e. 2013 Modification Order. Moreover,

as Robertson concedes, his purported change in circumstances did not all occur

between the entry of the order which he seeks to modify and the filing of his

modification. [R.R. Vol. 1, p. 28, ll. 13-23; see also Appellant Brief, p. 23.] Rather,

Robertson’s complaint with his financial obligations predates the 2013 Modification

Order and goes back to the agreement reached between the parties in the divorce

proceeding. [Appellant Brief at p. 23.] Due to Robertson’s failure to establish a

material and substantial change in circumstances since the entry of the order to be

modified, the trial court did not err in denying his request to modify support.

      B.       Factors Supporting Denial of Relief

      Nonetheless, assuming Robertson was able to demonstrate a material and

substantial change in circumstance, evidence was presented to the trial court from


                                          9
which it could logically conclude Robertson was intentionally underemployed.

Specifically, Robertson is a self-proclaimed entrepreneur with very flexible business

hours. [R.R. Vol. 1, p. 15, ll. 23-24 and p. 21, ll. 15-16.] He is a licensed commercial

real estate broker with fourteen (14) years of experience in commercial real estate. [Id.

at p. 30, ll. 11-13; p. 31, ll. 9-11; and p. 32, ll. 17-23.] Robertson holds a bachelor

degree in accounting and marketing with hours committed toward earning a Master’s

of Science in Accounting. [Id. at p. 31, ll. 7-8; and p. 33, ll. 10-18.] By his own

admissions Robertson has marketable skills and degrees. [Id. at p. 33, ll. 19-22.]

Despite such, he made a conscious choice not to pursue other or additional modes of

employment. [Id. at p. 51, ll. 18-25.] If Robertson’s story is true, he has consciously

and intentionally chosen not to take advantage of his education, training and

experience to secure earnings commensurate with his earning potential. [Id. at p. 41, ll.

8-22.]

         As a commercial broker, Robertson is able to sell properties. [R.R. Vol. 1, p. 41,

p. 41, ll. 8-14.] As a matter of fact, in the Agreed Final Decree of Divorce, Robertson

agreed that in addition to the payment of $1,600.00 per month in child support, he

would also contribute twenty-five percent (25%) of his gross sales commissions. [C.R.

p. 13.] Despite his qualifications and credentials, however, Robertson claims to have

secured zero sales commissions in 2014. [R.R. Vol. 1, p. 41, ll. 8-22.] Nonetheless,


                                             10
his 2013 federal income tax return still reflects $97,530.00 in income. [R.R. Vol. 2, at

Exhibit P-2.]

       Likewise, evidence was presented of Robertson’s available assets consisting of

both real and personal property from which the trial court could logically conclude

Robertson had sufficient resources to pay support as previously agreed and confirmed

by the court. Specifically, Robertson has an ownership interest in several different

business ventures to include Texarkana Legacy Group, LLC; Rangeland, LLC, a/k/a

State Line Shopping Center (33 1/3% ownership interest); SAP Holdings, LLC (50%

ownership interest); 5108 Holdings, LLC (25% ownership interest); Ark-Tex

Beverage, LLC (25% ownership interest); and Downtown Texarkana, LLC (50%

ownership interest). [R.R. Vol. 1, p. 33, l. 23 to p. 35, l. 16; see also R.R. Vol. 2 at

Exhibit P-2 and P-6.] He also has a twenty-five percent (25%) ownership interest in

5108 Beverage, LLC, a/k/a Villa Liquor Store, a business from which he claims to

receive no income. [Id. at p. 18, ll. 13-15; see also R.R. Vol. 2 at Exhibit P-6

(Schedule K-1).] Robertson does admit that in addition to any income, the various

entities in which he holds an interest possess both real and personal property of value.

[Id. at p. 33, l. 23 to p. 35, l. 16.]

       As to his interest in Downtown Texarkana, LLC, in spite of claiming that he

receives an average of $340.00 per month from this entity, Robertson admits that in the


                                          11
months leading up to the December 2014 hearing he received a check for $1,500.00 in

July, $750.00 in August, and $750.00 in September. [R.R. Vol. 1, p. 46, l. 22 to p. 47,

l. 19.] Despite his obligation to respond to written discovery, Robertson admits to

neither disclosing the name of the bank on which these checks were written nor

producing bank records from this business account. [Id.] This behavior exhibited by

Robertson is consistent with his failure to produce documents relative to his other

business interests as well as his financial accounts. [Id. at p. 43, l. 14 to p. 44, l. 5; p.

56, l. 25 to p. 61, l. 23; p. 76, ll. 14-25; p. 77, l. 19 to p. 80, l. 22; and p. 85, ll. 6-19.] It

is obvious that Robertson’s failure to produce financial records on his various business

ventures was more than a mere coincidence. [Id.; see also p. 56, l. 25 to p. 61, l. 23.]

As a matter of fact, this successful entrepreneur was well aware of the potential effect

the disclosure of financial records would have on his requested relief.

       Brown, who has a finance degree, raised concerns to the trial court as to

Robertson’s less than candid disclosure of earnings, income and assets from his various

business interests. [R.R. Vol. 1, p. 76, ll. 14-25; p. 77, l. 19 to p. 80, l. 22; and p. 85, ll.

6-19; see also p. 43, l. 14 to p. 44, l. 5 and p. 56, l. 25 to p. 61, l. 23 as to Robertson’s

testimony.] Nonetheless, despite Robertson’s obstruction, Brown was also able to

highlight the fact that, contrary to Robertson’s claim of poverty, $102,000.00 was

deposited into his personal bank account over the preceding twelve (12) month period.


                                                12
[R.R. Vol. 1, p. 79, ll. 10-18.] This testimony offered by Brown was uncontroverted

by Robertson.

       After filing his 2014 modification proceeding requesting a decrease in child

support and in the face of his purported dire straits, Robertson nonetheless had a

consistent level of discretionary funds for dining out, leisure and travel. [R.R. Vol. 1,

p. 42, l. 1 to p. 43, l. 5; and p. 79, l. 10 to p. 80, l. 2.] Meanwhile, Brown was

providing health insurance coverage, buying school supplies and school clothes, and

providing for the children’s essential needs. [I.d. at p. 75, ll. 8-12; and p. 85, ll. 2-5;

see also p. 52, ll. 22-23.] The trial judge had a front-row seat to resolve factual

disputes as to the nature and extent of Robertson’s income, earnings and assets, as well

as to judge the credibility of the witnesses. In the end, the court found there was no

material and substantial change in circumstances warranting modification of child

support. Moreover, the court found Robertson’s request not to be in the children’s best

interest.

       In a last ditch effort to gain a toehold, Robertson points this Court to the trial

court’s dicta in the record. Specifically, the court’s statement that in reviewing the

issue of child support, there were “a lot of things to consider” to include the fact

Robertson owns a $350,000.00 residence and drives a $70,000.00 vehicle. [See

Appellant Brief at p. 25; see also R.R. Vol. 1, p. 99, ll. 13-15.] Despite the fact this


                                            13
statement is not a finding of the court in the order on appeal, Robertson nonetheless

seized upon this statement to craft his theme before this Court that “[t]he trial court’s

only justification for not granting modification of child support was based solely on

[Robertson] having two assets specifically mentioned by the trial court,” i.e. the house

and his car. [Appellant Brief at p. 25 (emphasis added).] This assertion is wholly

inconsistent with the evidence presented at trial, the 2014 Modification Order entered

by the court, and the record before this Court on appeal. Due to Robertson’s failure to

establish a material and substantial change in circumstances and in light of the other

relevant factors supporting the current level of child support, the trial court did not err

in denying his requested modification.

      C.     Application of Guidelines is Discretionary

      Robertson is unable to demonstrate any failure of the trial court to apply the

facts of his case to the child support guidelines set forth in the Texas Family Code in

reaching its conclusion to deny the relief requested. Moreover, in a modification

proceeding, application of the guidelines by the court is discretionary not mandatory.

As such, even assuming the court found a material and substantial change in

circumstances, it was not bound to apply the guidelines in assessing the prior child

support order, it was free to consider other relevant factors in reaching its conclusion

and it did not err in denying Robertson’s request to modify support.


                                            14
III.   Conclusion

       Robertson failed to offer sufficient evidence to demonstrate a material and

substantial change in circumstances. Nonetheless, assuming arguendo he did present

evidence sufficient to meet this burden, Robertson has sufficient education, training

and experience to meet his earning potential as well as sufficient resources to satisfy

his obligations to the minor children. Moreover, other relevant factors support the

2014 Modification Order denying Robertson’s request to modify his child support

obligations. At best, conflicting evidence was presented to the trial court and it was

called upon to make factual resolutions and credibility determinations as to Robertson

and his version of the facts.

       By way of this appeal, Robertson now seeks a third bite at the apple. First, as

stated in his brief, despite his assertion of a material and substantial change between

the Agreed Final Decree of Divorce and the first modification proceeding, the trial

court did not disturb the child support order previously agreed upon in its 2013

Modification Order. Notwithstanding failing in this effort to seek a reprieve from his

financial obligations, Robertson failed to appeal the findings of the trial court. Instead,

some four (4) months after the entry of the 2013 Modification Order, Robertson filed

another motion to modify again claiming a material and substantial change in

circumstances. When this effort to curtail his financial obligations likewise failed, he


                                            15
sought review of this Court in yet another effort to secure a downward departure of his

obligation to support the two (2) minor children. Due to Robertson’s ongoing failure

to establish a material and substantial change in circumstances, the trial court did not

err in denying the request to reduce his child support obligations. Moreover, other

relevant factors considered by the court weighed against such relief.

      Any failure of the trial court to apply the child support guidelines set forth in the

Texas Family Code to this modification proceeding was not error. As a matter of fact,

the court was not mandated to apply the guidelines to the facts of this case. Moreover,

the court was free to consider other relevant factors in reaching its determination.

Accordingly, the relief sought by Robertson should be denied.

                                       PRAYER

      WHEREFORE, Appellee, Misty Brown, respectfully requests this Court affirm

the order of the trial court; and for such other and further relief to which she is justly

entitled at law or in equity.




                                           16
                                       Respectfully submitted,

                                       SMITH WEBER, L.L.P.
                                       5505 Plaza Drive - P.O. Box 6167
                                       Texarkana, Texas 75505-6167
                                       TEL: 903.223.5656 / FAX: 903.223.5652

                                        /s/ C. David Glass
                                       C. DAVID GLASS,
                                       Attorney in Charge
                                       Texas State Bar No. 24036642
                                       E-Mail: dglass@smithweber.com

                                       ATTORNEYS FOR APPELLEE,
                                       MISTY BROWN


                      CERTIFICATE OF COMPLIANCE

      In compliance with rules 9.4(i)(2)(B) and (i)(3) of the Texas Rules of Appellate

Procedure, this brief contains 3,675 words.



                         CERTIFICATE OF SERVICE

      A true and correct copy of this document is being served on this the 7th day of

May, 2015, to:

      Kristian Young
      210 North Stateline Avenue
      Suite 502
      Texarkana, Arkansas 71854

                                              /s/ C. David Glass
                                              C. David Glass

                                         17
