                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-09-257-CV


IN THE INTEREST OF C.K.H.
AND K.D.H., CHILDREN


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            FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

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                         MEMORANDUM OPINION 1

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                               I. INTRODUCTION

      Appellant Tony H. appeals the trial court’s order modifying his child

support payments. In two issues, Tony complains that the trial court abused

its discretion by not retroactively applying the modification to his current child

support obligation and by not lowering his future child support obligation. We

will affirm.




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          … See Tex. R. App. P. 47.4.
                              II. BACKGROUND

      Tony, incarcerated since December 2004, filed a motion to modify child

support set at $300 per month in May 2001.         In his pro se petition, filed

September 22, 2008, Tony requested that his child support be reduced to

$0—retroactively applied to the date of his incarceration. The trial court heard

the motion on June 9, 2009. At the hearing, Tony submitted an Affidavit in

Lieu of Personal Appearance in which he requested that his future child support

payments be modified to $200 per month, upon his release from prison,

because of an additional household that includes two additional children born

in 2005 and 2006.

      The trial court entered an order on June 10, 2009, reducing Tony’s

current child support to $0 effective July 1, 2009, and immediately reinstating

his monthly $300 support obligation and arrearage payments upon notifying the

court in writing of his release from the state penitentiary.    After the court

denied his motion to modify judgment on July 7, 2009, Tony timely filed his

notice of appeal.

                                III. ANALYSIS

      A. Standard of Review

      A trial court is given broad discretion in decreasing or increasing child

support payments, and the court’s order will not be disturbed on appeal except

on a showing of a clear abuse of discretion. In re Z.B.P., 109 S.W.3d 772,

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781 (Tex. App.—Fort Worth 2003, no pet.); Reynolds v. Reynolds, 452 S.W.2d

950, 953 (Tex. Civ. App.—Dallas 1970, no writ). The test for an abuse of

discretion is whether the trial court acted without reference to any guiding rules

or principles; that is, whether the act was arbitrary or unreasonable. Worford

v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). Merely because a trial court

may decide a matter within its discretion in a different manner than an appellate

court would in a similar circumstance does not demonstrate that an abuse of

discretion has occurred. Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241–42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986).

      Because no findings of fact or conclusions of law were requested or filed

in this case, we infer that the trial court made all the findings necessary to

support its judgment. Worford, 801 S.W.2d at 109. “In determining whether

some evidence supports the judgment and the implied findings of fact, ‘it is

proper to consider only that evidence most favorable to the issue and to

disregard entirely that which is opposed to it or contradictory in its nature.’”

Id. “The judgment must be affirmed if it can be upheld on any legal theory that

finds support in the evidence.” Id.

     B. Trial Court Has Discretion Not To Retroactively Apply Child Support
Modification

      In his first issue, Tony now contends that the trial court abused its

discretion by not retroactively applying the modified child support to the date


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of citation, October 7, 2008. A trial court is empowered to modify a child

support obligation and may retroactively modify support only as to obligations

accruing after the earlier of the date of service of citation or an appearance by

the respondent.    Tex. Fam. Code Ann. § 156.401(b) (Vernon 2008); In re

Naylor, 160 S.W.3d 292, 294 (Tex. App.—Texarkana 2005, no pet.); Holley

v. Holley, 864 S.W.2d 703, 707 (Tex. App.—Houston [1st Dist.] 1993, writ

denied). However, a trial court has no affirmative duty to modify retroactively,

and setting the effective date of the order is within the court’s broad discretion.

Naylor, 160 S.W.3d at 294; Black v. Bassett, 619 S.W.2d 193, 196 (Tex. Civ.

App.—Texarkana 1981, no writ).

      Here, Tony filed the motion to modify child support in September 2008,

and a hearing on his motion was held in June 2009. Setting the effective date

of the modification to July 1, 2009, was within the discretionary time frame

provided by statute because it was not earlier than either the date of service of

citation or an appearance 2 by Tony. See Tex. Fam. Code Ann. § 156.401;

Naylor, 160 S.W.3d at 294. Because the trial court acted within the range

provided by the family code and did not act arbitrarily or unreasonably, the trial


      2
       … With the trial court’s permission, Tony appeared and testified at the
hearing by Affidavit in Lieu of Personal Appearance. In his Original Motion to
Modify Child Support, Tony asked the trial court “to conduct a hearing on this
motion, receive testimony from Petitioner and Respondent, either in person, via
teleconference, or by affidavit in lieu of personal appearance. Whichever
pleases the court.”

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court did not abuse its discretion in setting the modification date later than the

date of citation.

         Tony also contends the trial court’s delay in conducting his hearing

entitled him to a retroactive child support modification.3     See Tex. R. Jud.

Admin. 7, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. F app. (Vernon

2005). However, even if there was a delay, Tony cites no authority, and we

find none, in support of his entitlement contention. We overrule Tony’s first

issue.

     C. Child Support Guidelines Not Mandatory On Trial Court Modifying
Support Obligation

         In his second issue, Tony contends that the trial court abused its

discretion in not modifying his future child support obligation based on the

Texas Family Code’s minimum wage salary guidelines and in consideration of

his other children and household. See Tex. Fam. Code Ann. §§ 154.068, .128

(Vernon 2008). Tony argues that the trial court should have set his future child

support obligation by applying the minimum wage presumption in section

154.068 of the Texas Family Code. This section states, “In the absence of

evidence of the wage and salary income of a party, the court shall presume that




         3
     … The record reveals Tony submitted an initial request for a hearing on
November 18, 2008.

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the party has wages or salary equal to the federal minimum wage for a 40-hour

week.” Tex. Fam. Code Ann. § 154.068.

      Here, there is evidence of Tony’s wage and salary income at the time of

the original child support order. Tony’s Affidavit In Lieu of Personal Appearance

includes a statement that prior to his incarceration, he was employed at $10.50

per hour and averaged a forty-hour work week. Thus, based on his testimony

about his previous earning ability and income—and in the absence of any

evidence that he is unemployable upon his release from incarceration—there is

at least some evidence to support the trial court’s determination of Tony’s

future child support obligation. See Worford, 801 S.W.2d at 109 (holding that

a court’s order of child support will not be disturbed on appeal unless the

complaining party can show a clear abuse of discretion); see also In re Martin,

881 S.W.2d 531, 536 (Tex. App.—Texarkana 1994, writ denied) (holding that

based on appellant’s testimony about his previous income, and in the absence

of any evidence that he is unemployable, there is at least some evidence to

support the trial court’s setting of child support above the federal minimum

wage guidelines).

      Tony also contends that the trial court should have applied the Texas

Family Code guidelines for multiple families and set his post-incarceration child

support at $200 per month. See Tex. Fam. Code Ann. § 156.406 (Vernon

Supp. 2009); Escue v. Escue, 810 S.W.2d 845, 848 (Tex. App.—Texarkana

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1991, no writ) (holding that once an obligor produces evidence that he is

paying child support under another child support order, the trial court shall

consider that obligation in making its final determination).

      During an obligor’s incarceration, the trial court has the authority to

abate, reduce, or suspend a child support obligation.      See Tex. Fam. Code

§ 156.401(d). In determining whether to modify existing child support orders,

the trial court’s use of child support percentage guidelines is discretionary, not

mandatory. In re R.D., No. 02-04-00165-CV, 2005 WL 503055, at *2 (Tex.

App.—Fort Worth Mar. 3, 2005, no pet.) (mem. op.) (citing Escue, 810 S.W.2d

at 848).

      Tony’s argument fails because his claim relies in large part upon the

mistaken assumption that the court, in a modification proceeding, may only

order child support obligations in strict conformity with the child support

guidelines. The trial court’s adherence to the guidelines during a modification

proceeding is only discretionary. Escue, 810 S.W.2d at 848. On review, we

allow the trial court broad discretion in setting child support payments and in

modifying those payments. Z.B.P., 109 S.W.3d at 781; In re R.D., 2005 WL

503055 at *2.

      Furthermore, a trial court’s determination as to whether a material change

of circumstances has occurred is not guided by rigid rules and is fact specific.

Z.B.P., 109 S.W.3d at 779. Here, the trial court’s order served to abate or

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suspend, rather than permanently modify, Tony’s child support obligation for

the remainder of his incarceration. The trial court reduced Tony’s obligation to

$0 beginning July 1, 2009, until his release from prison. Upon his release, the

previous child support obligation is to resume immediately, including any

arrearage payments.    In the absence of evidence showing a clear abuse of

discretion, the trial court’s decision must be upheld. See Worford, 801 S.W.2d

at 109. We overrule Tony’s second issue.

                              IV. CONCLUSION

      Having overruled both of Tony’s issues, we affirm the trial court’s order.




                                           ANNE GARDNER
                                           JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

DELIVERED: August 31, 2010




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