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In re T.M.

Court of Appeals of Texas, Second District, Fort Worth

August 26, 2019

In the Interest of T.M., a Child

          On Appeal from County Court at Law No. 1 Wichita County, Texas Trial Court No. CCL-761-02-E

          Before Birdwell, Bassel, and Womack, JJ.


          Dabney Bassel Justice.

         I. Introduction

         Appellant D.M. (Father) raises two issues arising out of a suit affecting the parent-child relationship (SAPCR) in which the trial court ordered an increase in Father's monthly child support payment to $1, 710 and ordered Father to pay $16, 630 in child support arrears. Father complains that the trial court abused its discretion by failing to deduct ordinary and necessary business expenses when calculating his self-employment income and that the trial court erred by failing to make findings of fact and conclusions of law. We affirm.

         II. Background

         Father and T.A.M. (Mother) were married in 1994, had two children, and divorced in 2003 pursuant to an agreed final decree of divorce. As part of the divorce decree, Father was ordered to pay Mother $500 per month for child support.

         The clerk's record reflects that Father was frequently behind on child support payments. In 2006, he was ordered to pay $18, 026.82 in arrears. In 2010, he was ordered to pay $19, 431.02 in arrears. In 2015, Father was apparently behind again before the trial court signed an agreed order in which Mother agreed to release Father from arrears that had accrued since 2014.

         Mother and Father had apparently been living together, but in 2017, Mother moved out and filed the underlying SAPCR, seeking to be appointed joint managing conservator of one of their youngest child (T.M.) with the exclusive right to designate T.M.'s primary residence. Mother also sought child support.[1]

         While the SAPCR was pending, Mother filed a motion to compel production and for sanctions. The trial court ordered Father to produce the requested documents, which were necessary to establish his income during the relevant time period. These documents included Father's 2016 and 2017 tax returns and W-2 and 1099 statements.[2] Several months later, Mother filed a motion for further sanctions, and the trial court signed an order in which it stated that Father had failed to comply with producing the previously ordered financial documents. Therefore, the trial court stated it was "deeming, for each month from [Mother's] original filing of her petition through the date of the final hearing, [Father's] net income to be at least $8, 550.00 per month for purposes of establishing child support in this case." As a sanction, the trial court further stated,

[Father] will not be allowed to offer any evidence for the purpose of contradicting the deemed amount of net income per month set out above unless he complies with this order in producing the documents ordered to be produced herein, as well as any documents [Father] is claiming would tend to prove or establish that his income is less than that deemed by the Court.

         At the beginning of the December 14, 2018 final hearing, Mother's counsel asked the trial court to take judicial notice of its prior ruling and argued that the sanctions should remain in place because Father had still not complied with the trial court's prior orders:

[MOTHER'S COUNSEL]: I'd ask the court to take judicial notice of the court's file and in particular the last order on motion to compel and for sanctions in which the court determined it would deem that [Father's] income, net income, was $8, 550 per month and further ordered that he would not be allowed to produce any evidence to dispute that unless and until he provided the documents he was to provide to us so that we could prepare our case to show that his income is, in fact, that high. I think we're at that point. [Father's counsel's] office did send us some documents, but I'll attempt to establish through my client that it's wholly unacceptable in terms of he didn't provide a lot of what he should have. And so we're still shooting in the dark here just going on what we do know. So I really don't think it's fair for us to have to get into a fight about what his income is now with him not here to even answer questions about what his income is now. But with the Court's permission, I'll try to establish he didn't comply with the court's order.

         Father's counsel argued that Father had complied and produced a handwritten list of monthly income from November 2017 through October 2018, some bank statements, a vehicle purchase application, and what appeared to be one page of a social security statement[3]:

[FATHER'S COUNSEL]: Judge, before you make the deemed finding with regard to his income that [Mother's counsel] requests, I believe [Father] complied with your order and complied with your order in a timely manner. I have produced, and I'll put into evidence if need be, the responsive documents, which included lots of invoices, lots of bank records, and a summary of his monthly expenses. I believe [Father] complied with that order to the extent that you should not deem his income.
The trial court stated that it would carry the issue forward without ruling:
THE COURT: Let's do it this way. Let's carry a ruling on that forward. Let's go ahead with the hearing and get the -- I assume [Father's counsel] will put that into evidence to show that he had complied with whatever evidence y'all are going to ...

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