Court of Appeals of Texas, Fifth District, Dallas
IN THE INTEREST OF J.P.M., V.M. AND A.M., CHILDREN
Appeal from the 254th Judicial District Court Dallas County,
Texas Trial Court Cause No. DF-14-22610
Justices Whitehill, Schenck, and Rosenberg
BARBARA ROSENBERG JUSTICE.
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.
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.
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.
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
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.
The standard of review in divorce
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.
1.All necessary findings of fact regarding medical and
medical insurancecoverage were ...