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In re Marriage of Adamski

Court of Appeals of Texas, Fourteenth District

July 25, 2017

IN THE MATTER OF THE MARRIAGE OF ANDRZEJ ADAMSKI AND OKSANA ADAMSKI

         On Appeal from the 328th District Court Fort Bend County, Texas Trial Court Cause No. 12-DCV-199667

          Panel consists of Justices Christopher, Jamison, and Donovan.

          MEMORANDUM OPINION

          Martha Hill Jamison Justice.

         Andrzej Adamski appeals from the final decree of divorce dissolving his marriage to Oksana Adamski. In three issues, Andrzej contends that the trial court abused its discretion by (1) ordering Andrzej to make monthly child support payments above statutory guidelines, (2) ordering a division of the marital estate and awarding attorney's fees that did not conform to the parties' premarital agreement, and (3) refusing to set aside a default judgment. Because the record does not support Andrzej's contentions, we affirm.

          Background

         Andrzej and Oksana were married in 1999 and have one minor child together. Andrzej filed his Original Petition for divorce in July 2012, and Oksana filed an answer and counter-petition. According to the Final Decree of Divorce, a jury trial was held from May 12 to May 19, 2015, and the trial judge heard remaining issues from October 12 to October 14, 2015.[1] Andrzej was represented by counsel during the jury trial but represented himself during the bench trial. Oksana was represented by counsel throughout the proceedings below.[2] An amicus attorney was also appointed by the court and participated in both phases of the trial. According to Andrzej, he failed to appear on the third day of the bench trial, and the trial court entered a default judgment against him. Andrzej has not filed a reporter's record in this appeal, but the trial court's docket sheet reflects that he failed to show on the third day of the bench trial, which proceeded in his absence.

         On November 13, 2015, Andrzej filed a motion requesting a continuance or, in the alternative, a new trial. In this motion, Andrzej suggested that he had missed the third day of the bench trial due to a medical emergency brought on by the stress of the proceedings. He further alluded to potential physical abuse of the child by the mother. In support, Andrzej attached to the motion photographs of the child with what appears to be a medical walking boot on her foot as well as a police report. According to the record, no hearing on the motion was requested or conducted, and the trial court made no express ruling.

         In its final decree entered February 2, 2016, the trial court, among other things, appointed Andrzej and Oksana as joint managing conservators of their child and named Oksana as the parent with the exclusive right to designate the child's primary residence. The court further ordered that the social security benefits Andrzej receives be transferred to Oksana as custodial parent, and if Andrzej "is not receiving social security disability payments for the child, " the court ordered him to pay child support of $750 per month.[3] The court additionally awarded certain property and accounts to Andrzej and certain property and accounts to Oksana, including, for Oksana, real property in Polk County, Texas. The court further awarded Oksana a judgment of $9, 900 for fraud on the community by Andrzej, and the court ordered Andrzej to pay Oksana's attorney's fees, expenses, and costs incurred in the lawsuit, which the court determined to be $30, 000.

         Child Support

         In his first issue, Andrzej contends that the trial court erred in ordering him to pay above guideline child support without entering the requisite findings in support of the order. Generally, child support is calculated by applying statutory guidelines to the obligor's monthly net resources. See Tex. Fam. Code § 154.062(a); In re Marriage of Butts, 444 S.W.3d 147, 153 (Tex. App.-Houston [14th Dist.] 2014, no pet.). For one child, the guidelines provide that child support should equal twenty percent of the obligor's net resources. Tex. Fam. Code § 154.125(b). The trial court may deviate from the guidelines if evidence rebuts the presumption that application of the guidelines is in the best interest of the child. Id. § 154.123. If the guidelines are not followed, a trial court must make specific findings as to (1) the net resources of the obligor and the obligee, (2) the percentage applied to the obligor's net resources, and (3) if applicable, the specific reasons for the deviation from the guidelines. Id. § 154.130(a)(3), (b); Butts, 444 S.W.3d at 153.

         In support of his contention that the trial court deviated from the statutory guidelines, Andrzej points to his tax returns for the three year period prior to trial, which he had attached to his inventory and appraisement of property filed with the trial court. Andrzej argues that the trial court erred in not using the returns to establish his net resources. As mentioned above, however, the appellate record does not contain a reporter's record for either the jury portion of the trial or the bench proceedings. Consequently, we are unable to tell whether the referenced tax returns were admitted into evidence at trial. We are further unable to determine whether any other evidence regarding Andrzej's net resources was admitted. In the absence of such information, we are unable to determine whether the trial court deviated from the statutory guidelines, and we further cannot say that the trial court erred in failing to make the findings required when a court so deviates. In fact, in the absence of a reporter's record, we presume that the evidence at trial supported the trial court's determination regarding the amount of child support. See, e.g., Allen v. Porter, No. 01-16-00823-CV, 2017 WL 2255751, at *3 (Tex. App.-Houston [1st Dist.] May 23, 2017, no pet. h.) (mem. op.) (and cases cited therein). Because the record does not support Andrzej's contentions, we overrule his first issue.

         Division of Marital Estate and Attorney's Fees

         In his second issue, Andrzej contends that the trial court erred in ordering a division of the marital estate and awarding attorney's fees that did not conform to the parties' premarital agreement. According to Andrzej, the parties entered into a premarital agreement that, among other things, (1) identified real property in Livingston, Texas as his separate property, (2) provided that the couple's joint accounts would be divided equally upon dissolution of the marriage, and (3) contained an agreement that neither party would provide support to the other upon dissolution of the marriage. In support, he cites a copy of a purported agreement filed in the clerk's record. Andrzej asserts that the trial court violated each of these provisions in the final judgment, by (1) awarding the lot in Livingston to Oksana, [4](2) awarding over half of the funds in the joint accounts to Oksana, and (3) ordering Andrzej to pay Oksana's attorney's fees.

         Texas law recognizes the general enforceability of premarital agreements. See generally Tex. Fam. Code §§ 4.001-.010 (Uniform Premarital Agreement Act); Beck v. Beck, 814 S.W.2d 745, 749 (Tex. 1991). Such agreements are presumptively valid but may be determined to be unenforceable if not voluntarily signed or unconscionable. See Tex. Fam. Code § 4.006(a); Sheriff v. Moosa, No. 05-13-01143-CV, 2015 WL 4736564, at *4 (Tex. App.-Dallas ...


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