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In re S.M.H.

Court of Appeals of Texas, Seventh District, Amarillo

November 6, 2019

IN THE INTEREST OF S.M.H. AND C.M.H., CHILDREN

          On Appeal from the County Court at Law No. 2 Randall County, Texas Trial Court No. 72, 906-L2, Honorable Ronnie Walker, Presiding

          Before QUINN, C.J., and PIRTLE and PARKER, JJ.

          MEMORANDUM OPINION

          Brian Quinn Chief Justice

         This appeal involves effort to modify support obligations pertaining to two children and to confirm the existence of arrearages regarding those obligations. The matters were initially referred to an associate judge who conducted an evidentiary hearing on them. The evidence admitted in the hearing consisted of both live testimony and exhibits. Thereafter, the associate judge executed its written order 1) maintaining Father's general monthly child support obligation at $885, 2) increasing Father's monthly "cash medical support" obligation to $300, 3) finding Father to be in arrears with regard to his child support obligation in the amount of $112, and 4) finding Father to be in arrears with regard to his medical support obligation in the amount of $410.88. Father moved the referring court to conduct a de novo hearing, which it did.

         The evidence received by the referring court included live testimony from Mother and the reporter's record of the evidentiary hearing conducted by the associate judge. That reporter's record, however, did not include the exhibits which the associate judge had admitted.[1] Thereafter, the referring court entered its order entitled "Order on Trial De Novo" wherein it "adopted" the associate judge's order "as the Order of this court." Father appealed, asserting three issues. The three were whether "the trial court abuse[d] its discretion when it" 1) "increased the amount of health insurance reimbursement," 2) did "not order[] a decrease in child support," and 3) "granted a child support arrearage judgment against" Father. We affirm.

         Issue Three

         We first address Father's issue about arrearage. His contention that the trial court erred is premised on res judicata. That is, he suggests that any purported arrearage arose from noncompliance with temporary orders executed before entry of the final divorce decree some four years earlier. That final decree allegedly relieved Father from complying with obligations imposed by the previously existing temporary orders. Given that, he believed himself discharged from any arrearage relating to his failure to comply with those temporary orders, and, therefore his liability for those sums could not be re-litigated. We overrule the issue.

         Father acknowledges that the amount of arrearage was reflected within an exhibit the State "attempted to offer" at the associate judge hearing. The exhibit was described by the State as a "copy of the financial activity report in this case." The record of that hearing discloses that the State's effort encompassed more than an attempt to offer the document. In fact, it offered and the trial court admitted it. Nonetheless, the exhibit appears nowhere in the appellate record before us. Nor was it included as part of the reporter's record admitted during the de novo hearing. So, elemental to Father's argument is an exhibit before neither the referring court nor us.

         Where an appellant fails to bring forward a complete record, the reviewing court will conclude that he waived issues dependent upon the missing evidence. Ogbeide v. Limbrick, No. 01-12-00352-CV, 2012 Tex.App. LEXIS 9628, at *5-7 (Tex. App.-Houston [1st Dist.] Nov. 21, 2012, no pet.) (mem. op.). This is so because we cannot review issues depending on the state of the evidence without a complete record. Id. Consequently, Father waived his complaint about the arrearage.

         Issue One

         Next, we address the complaint about the trial court's failure to reduce Father's child support obligation. Father argued that he "had the burden of proof to prove that his circumstances had changed since the rendition of the order to be modified, which he did." That evidence consisted of his testimony about being in bankruptcy from 2013 through 2015 and a copy of his 2016 Federal Income Tax Return. We overrule the issue.

         A trial court may modify a previous child support order if "the circumstances of the child or a person affected by the order have materially and substantially changed" since the date of the order's rendition. Tex. Fam. Code Ann. § 156.401 (a)(1)(A) (West Supp. 2018). To determine whether such a change occurred, a trial court must examine and compare the circumstances existing at the time of the initial order with those existing at the time modification is sought. In re C.C.J., 244 S.W.3d 911, 917 (Tex. App.-Dallas 2008, no pet.). In other words, both historical and current evidence of the relevant person's financial circumstances must appear of record and be compared. London v. London, 192 S.W.3d 6, 15 (Tex. App.-Houston [14th Dist.] 2005, pet. denied). Without evidence depicting the financial circumstances of the party at these relevant times prevents the court from determining that the requisite change occurred. Plowman v. Ugalde, No. 01-14-00851 -CV, 2015 Tex.App. LEXIS 10655, at *10 (Tex. App.-Houston [1st Dist.] Oct. 15, 2015, no pet.) (mem. op.). And, the burden lies with the movant to provide the requisite evidence of his or her historical and current financial situation. Id.

         The appellate record illustrates that the hearing before the associate judge was conducted in February of 2018. The referring court held its hearing one month later. In neither proceeding did Father proffer his 2017 tax return. Nor did he attempt in either to inform the fact-finder of his income for 2017. For instance, when asked if he knew if he "made 10, 000 or 200, 000" for that year, he answered "no." So too did he testify that he was unable to even offer a "ballpark" estimate of his 2017 income. On the other hand, he admitted to earlier "moving to this town" with a large savings garnered from a "lucrative" legal practice.

         Without 2017 income data being proffered at a hearing held in 2018, both the associate judge and referring court could have reasonably decided that they lacked current financial data with which to undertake the comparison implicit in Plowman, London, C.C.J., and the Family Code. Indeed, statute contemplates that parties inform the court of their current financial status covering at least the last two years. See Tex. Fam. Code Ann. § 154.063(2) (West 2014) (stating that the trial court shall require a party to produce copies of income tax returns "for the past two years, a financial statement, and current pay stubs"). Omitting income from 2017 fell short of that aim. So, we cannot fault either the associate judge's or referring court's decision on the record before them or us. Consequently, neither abused their discretion in refusing to grant Father's motion to reduce his child support obligation. See Plowman, ...


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