                                       NO. 12-11-00025-CV

                          IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

IN THE INTEREST OF J.A.R.,                           §                APPEAL FROM THE 8TH

D.L.R. AND C.M.R.,                                   §                JUDICIAL DISRICT COURT

MINOR CHILDREN                                       §                RAINS COUNTY, TEXAS

                                       MEMORANDUM OPINION
        Anthony Lane Redmon appeals from the trial court’s order increasing his monthly child
support from $425.00 to $1,000.00.                In two issues, Anthony contends the trial court’s
modification of his child support obligation constitutes an abuse of discretion. We affirm.


                                                BACKGROUND
        Anthony and Karen Redmon were married with three children, but were divorced
pursuant to an agreed final divorce decree on September 17, 2008. Under the terms of the
decree, Anthony was obligated to pay Karen $425.00 per month for child support. Anthony’s
child support obligation was less than the child support guidelines amount, but Karen agreed to
the amount.1
        On September 30, 2010, the Office of the Attorney General (OAG) filed a ―Petition for
Confirmation of Non-Agreed Child Support Review Order.‖ The OAG sought to increase
Anthony’s child support obligation to $1,158.00 per month, an amount the OAG believed to be
in line with the child support guidelines. Anthony objected to the increase, and the trial court set
the OAG’s petition for hearing.



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          Specifically, the Agreed Final Decree of Divorce stated, ―[T]he parties have entered into a written
agreement as contained in this decree by virtue of having approved this decree as to both form and substance. . . .
The Court approves the agreement of the parties as contained in this Final Decree of Divorce.‖

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       At the hearing, the OAG sought to prove that the circumstances of Anthony, Karen, and
the children had materially and substantially changed since the date of the agreed final divorce
decree. The evidence presented at the hearing showed that Anthony had received raises since the
date of the divorce decree that increased his wages by $2.90 per hour. Karen had purchased a
larger house to accommodate the children, which caused her expenses to increase. The oldest
child was taking driver’s education and would soon need a vehicle. All three children were
involved, or wanted to be involved, in more extracurricular activities than on the date of the
divorce. The oldest child was in the band and 4-H, the middle child was in 4-H and wanted to
participate in sports, and the youngest wanted to be in 4-H. Karen could not afford another
vehicle, insurance for a teenage boy, or the expenses associated with these extracurricular
activities unless she received increased support from Anthony.
       After hearing the evidence, the trial court found a material and substantial change in
circumstances to support the modification, but also found that child support calculated at the
guidelines amount would be an undue hardship for Anthony. Accordingly, the trial court ordered
that Anthony’s child support obligation be increased to $1,000.00 per month instead of
$1,158.00 as requested by the OAG.
       Anthony requested findings of fact and conclusions of law. The trial court complied with
Anthony’s request.     Anthony then requested amended and additional findings of fact and
conclusions of law. Again, the trial court complied with Anthony’s request. As pertinent to this
appeal, the trial court found that ―[t]hese expenses [described in the trial court’s findings of fact
8 through 12] manifest a material and substantial change in the circumstances of [Karen] and the
children.‖


                                     STANDARDS OF REVIEW
       Anthony contends that the evidence is legally and factually insufficient to support the
trial court’s modification of his child support obligation and therefore the modification order
constitutes an abuse of the trial court’s discretion. This issue implicates two different appellate
standards of review: abuse of discretion and the traditional evidentiary sufficiency standard. See
Lindsey v. Lindsey, 965 S.W.2d 589, 591 (Tex. App.–El Paso 1998, no pet.). Because these
standards overlap here, as they frequently do in family law cases, we apply a hybrid analysis.
Jenkins v. Jenkins, 16 S.W.3d 473, 477 (Tex. App.–El Paso 2000, no pet.).

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Abuse of Discretion
       A trial court has broad discretion in setting or modifying child support payments. In re
A.M.W., 313 S.W.3d 887, 890 (Tex. App.—Dallas 2010, no pet.).               The test for abuse of
discretion is whether the court acted without reference to any guiding rules and principles.
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). Stated another way, a trial court abuses
its discretion when it acts in an arbitrary or unreasonable manner. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). An abuse of discretion does not occur
merely because a trial court may decide a matter within its discretionary authority in a different
manner than an appellate court in a similar circumstance. Id. A trial court’s modification order
is reversed only when it appears from the record as a whole that the trial court abused its
discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). When there is some
evidence of a substantive and probative character to support the trial court’s decision, no abuse
of discretion occurs. In re B.A.W., 311 S.W.3d 544, 550 (Tex. App.–El Paso 2009, no pet.).
Traditional Sufficiency Review
       A trial court’s findings of fact are reviewable for legal and factual sufficiency of the
evidence by the same standards that are applied in reviewing evidence supporting jury findings.
Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). A party who challenges the legal
sufficiency of the evidence to support an issue on which it did not have the burden of proof at
trial must demonstrate on appeal that there is no evidence to support the adverse finding.
Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). When considering a legal sufficiency
challenge after a bench trial, we view the evidence in the light most favorable to the trial court’s
findings, ―crediting favorable evidence if reasonable [fact finders] could, and disregarding
contrary evidence unless reasonable [fact finders] could not.‖ City of Keller v. Wilson, 168
S.W.3d 802, 807 (Tex. 2005). We must indulge every reasonable inference that would support
the trial court’s findings. Id. at 822. ―The final test for legal sufficiency must always be whether
the evidence at trial would enable reasonable and fair-minded people to reach the decision under
review.‖ See id. at 827.
       When considering the factual sufficiency of the evidence to support a finding on which,
as in this case, the appellee had the burden of proof, we examine all of the evidence and ―set

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aside the finding only if it is so contrary to the overwhelming weight of the evidence that it is
clearly wrong and unjust.‖ Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).             We    are   not
permitted to substitute our judgment for that of the fact finder. Golden Eagle Archery, Inc. v.
Jackson, 116 S.W.3d 757, 761-62 (Tex. 2003).
Application in Family Law Cases
       To determine whether the trial court abused its discretion because the evidence is legally
or factually insufficient, we engage in a two-pronged inquiry: (1) Did the trial court have
sufficient information upon which to exercise its discretion; and (2) Did the trial court err in its
application of discretion? In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.–Fort Worth 2002, pet.
denied) (op. on reh’g). The traditional sufficiency review comes into play with regard to the first
question. Lindsey, 965 S.W.2d at 592. We then determine whether, based on the elicited
evidence, the trial court made a reasonable decision–one that was neither arbitrary nor
unreasonable. Id. In this case, Anthony has appropriately raised both prongs of this inquiry.


                                         APPLICABLE LAW
       When the parties agree to an order under which the amount of child support differs from
the amount that would be awarded under the child support guidelines, a trial 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 order’s rendition. TEX. FAM. CODE ANN. § 156.401(a-1)
(West 2008). In determining whether a material and substantial change in circumstances has
occurred, the trial court must compare the financial circumstances of the children and the
affected parties at the time the existing support order was entered with their circumstances at the
time the modification is sought. London v. London, 94 S.W.3d 139, 144 (Tex. App.—Houston
[14th Dist.] 2002, no pet.). The movant bears the burden to show the material and substantial
change. A.M.W., 313 S.W.3d at 891. A trial court’s decision as to whether there has been a
material and substantial change of circumstances is not guided by rigid rules and is fact specific.
Id.
       The purpose of child support is to help a custodial parent maintain an adequate standard
of living for the children. Farish v. Farish, 982 S.W.2d 623, 627 (Tex. App.—Houston [1st
Dist.] 1998, no pet.). The best interest of the children is the trial court’s primary consideration in
determining a child support obligation. McLane v. McLane, 263 S.W.3d 358, 362 (Tex. App.—

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Houston [1st Dist.] 2008, pet. denied). The amount of a child support payment established by
the child support guidelines is presumed reasonable, and an order of support conforming to the
guidelines is presumed in the best interest of the children. TEX. FAM. CODE ANN. § 154.122(a)
(West 2008). But a trial court may deviate from the guidelines if it determines the guidelines are
unjust or inappropriate under the circumstances. Id. §§ 154.122(b). 154.123(a) (West 2008).
Factors for a trial court to consider in determining whether application of the guidelines would
be unjust or inappropriate under the circumstances include the age and needs of the children and
the ability of the parents to contribute to the support of the children. Id. § 154.123(b)(1), (2)
(West 2008).


                        MODIFICATION OF CHILD SUPPORT OBLIGATION
        Anthony argues that the trial court’s modification of his child support obligation
constitutes an abuse of discretion because the evidence is legally and factually insufficient (1) to
prove that the circumstances of the children or a person affected by the order have materially and
substantially changed since the date of the order’s rendition and, alternatively, (2) to support an
increase in his child support obligation from $425.00 per month to $1,000.00 per month. We
address these arguments as two separate issues.
Material and Substantial Change in Circumstances (Issue 1)
       At the hearing on the OAG’s petition, Karen testified that at the time of the divorce, the
children were ages 13, 8, and 7. At the time of the modification hearing, the children were 15,
11, and 9. She also testified that after the divorce, she purchased a larger house, which caused
her expenses to increase. She was also paying for the oldest child to take driver’s education, and
he would soon need a vehicle. When he acquired one, Karen’s automobile insurance would
significantly increase. Also, the children were, or wanted to be, more involved in extracurricular
activities, which also increased Karen’s expenses.
       Anthony argues that Karen did not meet her burden to show the requisite material and
substantial change in circumstances because she did not present evidence of her expenses at the
time of the divorce. In support of his argument, he cites two cases, In the Interest of C.C.J., 244
S.W.3d 911 (Tex. App.–Dallas 2008, no pet.), and London v. London, 94 S.W.3d 139 (Tex.
App.–Houston [14th Dist.] 2002, no pet.).



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       In C.C.J., the mother presented evidence of her current income and living expenses, but
not of her expenses at the time of the divorce. The Dallas court stated that because the trial court
had nothing to compare, it could not have determined whether there had been ―a substantial and
material change of circumstances since the rendition of the prior order.‖ Accordingly, the court
held that the trial court’s finding of ―substantial and material change‖ was not supported by the
record and constituted an abuse of discretion. See C.C.J., 244 S.W.3d at 918. In London, the
mother, ―[a]t most, . . . testified about an interest in a joint venture she received in her divorce,
which was worth about $1,000,000.‖ She testified that she learned on the eve of trial that the
joint venture was not worth anything and that she was counting on that money to assist her in
supporting the children. However, she did not testify that she had been relying on or otherwise
receiving any income from the joint venture. Accordingly, the court held that the trial court
abused its discretion in modifying the child support because there was no evidence of the
financial circumstances of either the mother or her children at the time the support order was
entered. London, 94 S.W.3d at 145.
       In the case at hand, Karen was specifically asked how her expenses had changed since the
divorce. In response, she testified that her housing expenses had increased and also that she had
incurred additional expenses, and expected to incur more, attributable to the children’s increasing
involvement in extracurricular activities. Because her testimony was presented in terms of how
her expenses had changed since the divorce, the facts in this case are distinguishable from those
in C.C.J. and London.      Karen’s testimony provided evidence of a substantive and probative
character to support the trial court’s finding that the expenses she described ―manifest a material
and substantial change in the circumstances of [Karen] and the children.‖            See Brejon v.
Johnson, 314 S.W.3d 26, 32 (Tex. App.–Houston [1st Dist.] 2009, no pet.) (general testimony
about having to spend extra, unforeseen sums on babysitters and of the increased cost of living
legally and factually sufficient to support finding of material and substantial change in
circumstances). Accordingly, we hold that the evidence is legally and factually sufficient to
support the trial court’s finding of material and substantial change. Therefore, the trial court did
not abuse its discretion in determining that there was a material and substantial change in the
circumstances of Karen and the children. Anthony’s first issue is overruled.
Amount of Increase (Issue 2)



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        Anthony also asserts that the evidence is legally and factually insufficient to support the
upward modification of his child support obligation to $1,000.00 per month. He complains that
the trial court ―totally ignore[d] the agreement of the parties and the fact that [he], at the time of
the divorce was making virtually the same income that he is now, save and except the $2.90 per
hour increase.‖
        We first note that Anthony directs us to no authority, and we have been unable to locate
any such authority, supporting that the trial court’s discretion was limited by the agreement
between Anthony and Karen. In fact, the family code provides that once the trial court found a
material and substantial change in circumstances, it had authority to modify the child support
order as in any other case. Compare TEX. FAM. CODE ANN. § 156.401(a)(1) with TEX. FAM.
CODE ANN. § 156.401(a-1). Thus, the trial court was not bound by Anthony and Karen’s
previous agreement, and could utilize the child support guidelines to determine the amount of
child support that was in the best interest of the children. See id. § 154.122(a).
        The record shows that Anthony’s hourly wage at the time of the modification hearing was
$26.42. Based upon this evidence, the trial court calculated that Anthony’s gross weekly wage
was approximately $1,056.00, and his gross monthly wage was approximately $4,224.00. By
referring to the current tax chart and the pertinent statutory table, the trial court found that
Anthony’s monthly net resources were $3,860.92 and that the percentage applied to Anthony’s
net resources for child support was thirty per cent. See TEX. FAM. CODE ANN. §§ 154.129
(alternative method for computing child support for multiple children), 154.061(b) (current tax
chart) (West 2008 & Supp. 2010). Thus, the trial court calculated that Anthony’s monthly child
obligation under the guidelines would be $1,158.00. However, the court departed downward
from the guidelines amount to $1,000.00 because of the burden that adherence to the guidelines
would have imposed on Anthony. See id. §§ 154.122(a), 154.123(a).2
        The testimony that Anthony’s current hourly wage was $26.42 was evidence of a
substantive and probative character from which the trial court could calculate Anthony’s child
support obligation in compliance with the procedure set out in the Texas Family Code. Anthony
calls our attention to his own calculations, which were admitted into evidence, showing that his
$2.90 increase in wages would increase his monthly child support to only $564.50 per month.

        2
           Karen does not complain of the trial court’s exercise of its discretion to set Anthony’s child support
obligation below the guidelines.


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However, the calculations were not made in accordance with the statutory method for calculating
child support. Consequently, the trial court could disregard them. See Nordstrom v. Nordstrom,
965 S.W.2d 575, 581 (Tex. App.–Houston [1st Dist.] 1997, pet. denied) (trial court, as trier of
fact, is sole judge of witness credibility and weight to be given testimony, and may consider all
facts and surrounding circumstances pertaining to testimony and accept or reject all or any part
of testimony). Accordingly, we hold that the evidence is legally and factually sufficient to
support the trial court’s increase of Anthony’s child support obligation to $1,000.00 per month.
Therefore, the trial court did not abuse its discretion in setting Anthony’s child support
obligation at $1,000.00. Anthony’s second issue is overruled.


                                                    DISPOSITION
         Having overruled Anthony’s first and second issues, we affirm the trial court’s order
increasing Anthony’s child support obligation.


                                                                BRIAN T. HOYLE
                                                                    Justice




Opinion delivered August 24, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)


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