Court of Appeals of Texas, Seventh District, Amarillo
IN THE INTEREST OF S.M.H. AND C.M.H., CHILDREN
Appeal from the County Court at Law No. 2 Randall County,
Texas Trial Court No. 72, 906-L2, Honorable Ronnie Walker,
QUINN, C.J., and PIRTLE and PARKER, JJ.
Quinn Chief Justice
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.
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. 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.
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.
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.
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
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.
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.
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.
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, ...