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In re J.P.M.

Court of Appeals of Texas, Fifth District, Dallas

December 12, 2019

IN THE INTEREST OF J.P.M., V.M. AND A.M., CHILDREN

          On Appeal from the 254th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-14-22610

          Before Justices Whitehill, Schenck, and Rosenberg[1]

          MEMORANDUM OPINION

          BARBARA ROSENBERG JUSTICE.

         Nury Morrissey appeals certain provisions of the Final Divorce Decree (the Decree) by which she was ordered to pay Patrick Morrissey child support and medical support. She complains necessary factual findings were not made separately from the findings in the Decree, the support obligations calculated by the trial court were incorrect, and the court did not provide a reduction in child support as each child reached majority. Nury also contends the trial court erred in admitting the former testimony of unavailable witnesses.

         Patrick concedes error with respect to the trial court's determination of Nury's net resources for calculating her obligation to pay medical support. As an alternative for affirming the award of medical support, Patrick claims that the minimum wage should have provided the basis for Nury's net resources. Otherwise he offers he offers a remittitur and reformation to lessen the obligation. Patrick also concedes error for the failure to provide a reduction in child support. Again he offers remittitur and reformation.

         We overrule Nury's issues regarding inclusion of the factual findings in the Decree and the admission of evidence, but sustain her complaints regarding the amount she was ordered to pay in medical and child support. We also reject Patrick's voluntary remitter and request that we reform the Decree, because fact issues exist and require the trial court's resolution. Accordingly, we reverse and remand.

         FACTUAL BACKGROUND

         Patrick sued Nury for divorce. During trial, Patrick testified about his income and resources, including lacking health insurance and having no access to private health insurance. He also testified he had previously been the trustee of Nury's supplemental social security income (SSI), and believed she was still receiving $750 per month in SSI. Nury did not appear for trial, and no other evidence regarding Nury's current income-or her ability to work-was admitted. During the trial, the court admitted the transcript of testimony by Patrick, Nury and a third party, George Bannon, taken at a prior hearing.

         The trial court entered the Decree, and at Nury's request, also entered separate Findings of Fact and Conclusions of Law (the Findings of Fact). Pursuant to the Decree, Patrick was designated as sole managing conservator of the couple's three minor children and Nury was ordered to pay Patrick child and medical support calculated by using Nury's SSI as evidence of her net resources. Nury was ordered to pay $100 per month for medical support, as additional child support. The Decree did not include any "step-down" provision reducing Nury's obligations as each child reached eighteen or otherwise no longer necessitated her financial. Nury's appeal followed.

         DISCUSSION

         A. The standard of review in divorce proceedings

         An abuse of discretion standard governs child support issues arising in a divorce proceeding. Iliff v. Iliff, 335 S.W.3d 74, 78 (Tex. 2011); In the Interest of A.T., No. 05-16-00539, 2017 WL 2351084, at *11 (Tex. App.-Dallas May 31, 2017, no pet.) (mem. op.). Orders pertaining to health insurance are included within the same standard of review. In Interest of D.P.B., No. 05-17-00185-CV, 2018 WL 3014628, at *3 (Tex. App.-Dallas June 15, 2018, no pet.) (mem. op.) ("A trial court's order pertaining to health insurance for the children will not be reversed on appeal unless the complaining party can show a clear abuse of discretion."). The trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to guiding rules or principles. Iliff, 339 S.W.3d at 78 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)). A trial court also abuses its discretion by failing to analyze or apply the law correctly. Id. at 78 (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)). Under the abuse of discretion standard applied in family law cases, legal and factual sufficiency challenges are relevant factors in determining whether the trial court abused its discretion, rather than independent grounds for asserting error. Moore v. Moore, 383 S.W.3d 190, 198 (Tex. App.- Dallas 2012, pet. denied). In evaluating an abuse of discretion in this context, we first consider whether the trial court had sufficient evidence upon which to exercise its discretion, then determine if the trial court erred in the application of its discretion. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.-Dallas 2005, pet. denied). If some evidence of a "substantive and probative character" supports the trial court's decision, no abuse of discretion occurred. In re Marriage of C.A.S. & D.P.S., 405 S.W.3d 373, 383 (Tex. App.-Dallas 2013, no pet.). We review all evidence in the light most favorable to the judgment, and assume the fact finder resolved all disputed facts in favor of its findings, if a reasonable fact finder could do so. Moroch, 174 S.W.3d at 858.

         B. Asserted Errors

         1.All necessary findings of fact regarding medical and medical insurancecoverage were ...


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