Court of Appeals of Texas, Seventh District, Amarillo
IN THE MATTER OF THE MARRIAGE OF THOMAS EUGENE VICK ANDDIANA LYNN VICK AND IN THE INTEREST OF M.A.V. AND L.L.V., CHILDREN
Appeal from the 12th District Court Walker County, Texas
Trial Court No. D1014800, Honorable Donald Kraemer, Presiding
CAMPBELL and PIRTLE and PARKER, JJ.
T. Campbell Justice.
Diana Vick appeals the trial court's recalculation of her
child support obligation after we reversed and remanded that
issue in In re Marriage of Vick, No. 07-15-00019-CV,
2016 Tex.App. LEXIS 11975 (Tex.App.-Amarillo Nov. 3, 2016, no
pet.) (mem. op.). Finding no abuse of discretion, we will
affirm the order of the trial court.
Vick's former husband, Thomas Vick, filed a suit for
divorce in 2010. Disposition of the issues the parties raised
required four and one-half years and included multiple
hearings and a two-day bench trial, held in December 2011. A
final decree of divorce was signed in September 2014, but was
modified twice during the period of the trial court's
plenary jurisdiction. In her first appeal, we sustained Diana
Vick's challenge concerning the calculation of the amount
of child support she owed and remanded the case only for
recalculation of her child support obligation. 2016 Tex.App.
LEXIS 11975, at *11.
our mandate issued the trial court convened the remanded
portion of the case on April 10, 2017. Diana Vick did not
appear nor was an attorney acting on her behalf present. It
is undisputed that she received notice of the hearing. In
hearing testimony, Thomas Vick agreed with numbers expressed
on an exhibit recording child support paid and arrearages. He
also presented an exhibit consisting of four of Diana
Vick's pay stubs, one from 2010 and three from 2011.
Thomas Vick placed in evidence a worksheet showing Diana
Vick's adjusted net resources available for child support
was $4, 383.92. According to the worksheet this produced a
monthly child support obligation for two children of $1,
095.98 and $876.78 for one child. Before adjourning the
hearing, the court verbally rendered judgment setting Diana
Vick's child support obligation at the time of the
original decree at $1, 095.98 per month with a step-down to
$876.78 after one of the children reached age
December 19, 2017, the trial court signed a "Judgment in
Arrears and Order on Child Support." Therein it,
"FOUND and CONFIRMED that evidence of Respondent, Diana
Lynn Vick's income supporting a child support obligation
in the amount of $1, 091.71 for two (2) children was
presented and admitted unto the Court." The judgment also
confirmed a child-support arrearage of $68, 691.65. Diana
Vick requested findings of fact and conclusions of law but
none were filed and she does not complain of their absence on
appeal. An attorney signed Diana Vick's notice of appeal
and filed an appellate brief on her behalf. Appearing on
appeal pro se, Thomas Vick did not file an appellee's
Vick argues the trial court had insufficient evidence to
calculate her child support obligation and by ordering an
amount of child support abused its discretion.
review a trial court's order setting the amount of an
obligor's child support obligation for an abuse of
discretion. Worford v. Stamper, 801 S.W.2d 108, 109
(Tex. 1990) (per curiam). A trial court abuses its discretion
if it acts without reference to any guiding rules or
principles; that is, if it acts in an arbitrary or
unreasonable manner. Cire v. Cummings, 134 S.W.3d
835, 838-39 (Tex. 2004) (citing Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241, 242 (Tex. 1985)).
an abuse-of-discretion standard, legal and factual
evidentiary insufficiency are not independent grounds of
error, but are instead relevant factors to assess whether the
trial court abused its discretion. Henry v. Henry,
48 S.W.3d 468, 475 (Tex.App.- Houston [14th Dist.] 2001, no
pet.). A trial court abuses its discretion if it rules
without supporting evidence. Ford Motor Co. v.
Garcia, 363 S.W.3d 573, 578 (Tex. 2012) (citing
Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)).
In assessing the legal sufficiency of evidence, we credit
evidence that supports the finding if a reasonable factfinder
could and disregard contrary evidence unless a reasonable
factfinder could not. City of Keller v. Wilson, 168
S.W.3d 802, 827 (Tex. 2005). Evidence is legally sufficient
if it "would enable reasonable and fair-minded people to
reach the verdict under review." Id. To
determine whether evidence is factually sufficient, we
examine all the record evidence and will reverse only if the
evidence supporting the finding is so weak or so against the
overwhelming weight of the evidence that the finding is
clearly wrong and unjust. Crosstex N. Tex. Pipeline, L.P.
v. Gardiner, 505 S.W.3d 580, 615 (Tex. 2016).
Family Code requires a trial court to calculate net resources
in order to determine an obligor's child support
liability. Tex. Fam. Code Ann. § 154.062 (West Supp.
2018). "Resources" includes "100 percent of
all wage and salary income, " self- employment income,
and all other income actually received. Tex. Fam. Code Ann.
§ 154.062(b). To properly make this calculation there
must be some evidence of net resources of a substantive and
probative character. Reagins v. Walker, 524 S.W.3d
757, 761 (Tex.App.-Houston [14th Dist.] 2017, no pet.)
(citing Newberry v. Bohn-Newberry, 146 S.W.3d 233,
236 (Tex.App.-Houston [14th Dist.] 2004, no pet.) and
Holley v. Holley, 864 S.W.2d 703, 706
(Tex.App.-Houston [1st Dist.] 1993, writ denied)); Reyes
v. Reyes, 946 S.W.2d 627, 629 (Tex.App.-Waco 1997, no
writ) ("In determining whether the trial court abused
its discretion in setting a child support order, we will
affirm so long as there is some evidence of a substantive and
probative character to support the trial court's
decision"). When deciding a question of child support,
the best interest of the child is the primary consideration.
Tucker v. Tucker, 908 S.W.2d 530, 532-33
(Tex.App.-San Antonio 1995, writ denied).
evidence we have noted was uncontroverted and sufficient to
permit the trial court to perform the mandated recalculation
of Diana Vick's child support obligation. Diana Vick
further argues the trial court erred by not requiring
production of her income tax returns for the preceding two
years, her financial statement, and her current pay stubs as
required by Family Code section 154.063(b). Tex. Fam. Code
Ann. § 154.063(b) (West 2014). But this argument was not
presented to the trial court and an adverse ruling obtained.
It is therefore not preserved for appellate review.
Tex.R.App.P. 33.1(a). Moreover, because these items were not
made a part of the appellate record through an ...