Hardin v. Hardin

It was not unreasonable for the trial court to find that James failed to meet his burden of proving a material and substantial change in circumstances, nor was it unreasonable for the trial court to find that James was intentionally unemployed. Consequently, the court was entitled to look to his earning potential based on his work experience.

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Click here for the full text of this decision FACTS:The trial court entered a divorce decree for Charlotte and James Hardin divorced on Oct. 3, 2001. Charlotte and James were named joint managing conservators of their child, and James was ordered to pay $800 per month in child support. Two months later, James filed for modification of the parent-child relationship, which the trial court denied. A year later, on Nov. 22, 2002, the trial court signed a final judgment. The trial court ignored James’ Dec. 3 request to file findings of fact and conclusions of law, as well as a notice of past due findings and conclusions filed Jan. 8, 2003. James raises multiple issues on appeal, mostly relating to child support and the award of attorneys’ fees to Charlotte. HOLDING:Affirmed. The court first rules that the trial court did not err in failing to file child-support findings. Under Family Code �154.130, finding are required only when the amount of child support ordered varies from the guidelines. As the trial court did not modify the original order, it had no duty to file findings. T.exas Rules of Civil Procedure 296 and 297 address general filings of findings and conclusions. Rule 297 says that a party requesting findings to file a reminder request within 30 days of the original request. Because the notice was filed more than 30 days after the Dec. 3 initial request, it was untimely, and James’ complaint is waived. The court next considers the trial court’s ruling denying James’ request to modify his child support obligation. James said there had been a material and substantial change in circumstances since the time of the divorce because: 1. he changed jobs and had a decrease in compensation and then subsequently lost the lower-paying job as a result of a corporate reorganization; 2. he suffered extended unemployment and exhausted his unemployment compensation; and 3. he was recently injured in an automobile accident. Though he had been employed in Houston for $65,000 per year, he had moved to Dallas to work at a different job, but was then terminated and was unemployed at the time of trial. Despite these drawbacks, there was also evidence that James was a highly skilled carpenter who had hosted a weekly television show and had participated in an Internet-based show, too. On the other hand, Charlotte claimed that James was intentionally unemployed. She said James’ ambivalence about the order started when she filed a wage-withholding request with his employer in Dallas. Though James claimed to be unemployed, Charlotte said she frequently saw him wearing work clothes when he picked up the children for visitation. Also, while claiming to be unemployed, James was working for his father making $15 per hour. “In sum, it was not unreasonable for the trial court to find that James failed to meet his burden of proving a material and substantial change in circumstances, nor was it unreasonable for the trial court to find that James was intentionally unemployed. Consequently, the court was entitled to look to his earning potential based on his work experience. In light of this, it was reasonable for the trial court to conclude James was able to pay child support as ordered in the Decree.” The court upholds the award of attorneys’ fees for Charlotte on both the divorce and the modification motion. Although there is some disagreement among the appellate courts concerning attorneys’ fees rendered as child support in non-enforcement cases, this court’s prior holdings acknowledge that attorneys’ fees may be awarded as “necessaries” to the child in a suit for modification. The court finds the rest of James’ points to be improperly preserved or else lacking in any references to the record or to controlling authority. OPINION:Guzman, J.; Edelman, Frost and Guzman, JJ.

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