In re J.A.V.

1

IN THE INTEREST OF J.A.V., a Minor Child

No. 04-21-00084-CV

Court of Appeals of Texas, Fourth District, San Antonio

February 9, 2022

From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2018-CI-08139 Honorable John D. Gabriel, Jr., Judge Presiding

Sitting: Rebeca C. Martinez, Chief Justice Patricia O Alvarez, Justice Lori I. Valenzuela, Justice.

MEMORANDUM OPINION

LORI I. VALENZUELA, JUSTICE.

In twelve issues on appeal, appellant, Marcus D., appeals from the trial court's Order in Suit Affecting the Parent-Child Relationship and Adjudicating Parentage ("SAPCR order"). We affirm.

BACKGROUND

Marcus D. and Cynthia T. are the parents of the minor child J.A.V.^[1] Marcus and Cynthia began dating while both were college students. After Cynthia became pregnant, she dropped out of school and began to work full-time. While in college, Marcus was drafted by the New Orleans Saints, he received an $8 million signing bonus, and signed a $13.75 million contract with a five-year option. In 2019, he earned an unspecified performance bonus.

In May 2018, Marcus filed a petition to adjudicate parentage establish custody and access; child support; and health insurance for the child. Discovery and depositions ensued. A bench trial on the merits commenced August 25, 2020. During trial, the parties stipulated that Marcus paid Cynthia $72 995.00 in child support from February 2017 through July 27, 2021. Following trial, the court signed the SAPCR order adjudicating Marcus as J.A.V.'s father, and among other things, appointing Marcus and Cynthia as joint managing conservators, and establishing possession and access. The court further ordered Marcus to pay $4, 000 per month in child support beginning September 1, 2020, $12, 000 in retroactive child support by December 31, 2020, $2, 129.48 in unreimbursed medical expenses, and Cynthia's attorney's fees in the amount of $25, 000. Marcus requested findings of fact and conclusions of law. He later filed this appeal.

STANDARD OF REVIEW

Trial courts have wide discretion when deciding matters of custody, control, possession, support, or visitation, and we review such matters for an abuse of discretion. In re J.H. III, 538 S.W.3d 121, 123 (Tex. App.-El Paso 2017, no pet.) (recognizing trial court has broad discretion in determining best interest of a child in family law matters); see generally In re Doe 2, 19 S.W.3d 278, 281-82 (Tex. 2000) (holding abuse of discretion is proper standard of review).

To determine whether a trial court has abused its discretion in a SAPCR proceeding, we engage in a two-pronged inquiry: (1) did the trial court have sufficient information upon which to exercise its discretion and (2) did the trial court err in its application of discretion. In re T.M.P., 417 S.W.3d 557, 562 (Tex. App.-El Paso 2013, no pet.); see also In re C.M.V., 479 S.W.3d 352, 358 (Tex. App.-El Paso 2015, no pet.). We consider challenges to the legal and factual sufficiency of the evidence as relevant factors in determining whether the trial court had sufficient information upon which to exercise its discretion under the first prong of our analysis, rather than as independent grounds of error. See T.M.P., 417 S.W.3d at 563. In determining whether there is legally sufficient evidence, we consider the evidence in the light most favorable to the finding if a reasonable fact finder could, and disregard evidence contrary to the finding unless a reasonable fact finder could not. Id. When reviewing the factual sufficiency of the evidence, we consider and weigh all the evidence, and will set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Id. When the evidence is conflicting, we must presume the fact finder resolved the inconsistency in favor of the order if a reasonable person could do so. Id.

The trial court is in the best position to observe the witnesses and their demeanor, and therefore, the trial court does not abuse its discretion if evidence of a substantive and probative character exists to support its decision. Id. We will only find that the trial court abused its discretion in determining a child's best interest if, in light of the evidence presented to it, the trial court acted arbitrarily or unreasonably, without reference to any guiding principles, or if it otherwise failed to correctly analyze the law. Id. at 562. Accordingly, the mere fact that we might have decided an issue differently than the trial court does not establish an abuse of discretion. Id. at 563.

TRIAL COURT FINDINGS

Marcus first contends that because the trial court ordered child support in an amount that varied from the amount computed by applying the Family Code percentage guidelines, the court erred by not making the mandatory statutory findings under Family Code sections 154.126(b) and 154.130(b). Under this argument, Marcus includes a multitude of contentions. These additional contentions are arguably multifarious. See In re S.K.A., 236 S.W.3d 875, 894 (Tex. App.- Texarkana 2007), pet. denied, 260 S.W.3d 463 (Tex. 2008) (per curiam) (observing a multifarious issue or point of error is one that raises more than one specific ground of error). Courts may disregard any assignment of error that is multifarious. Id. However, a reviewing court may consider a multifarious issue if it can determine, with reasonable certainty, the error about which the appellant wants to complain. Id. Here, we address only Marcus's specific complaint that the trial court failed to make the statutory findings.

Section 154.126(b) does not require the trial court to enter findings. However, section 154.130 states that, "[w]ithout regard to Rules 296 through 299, Texas Rules of Civil Procedure, in rendering an order of child support, the court shall make the findings required by Subsection (b) if: (1) a party files a written request with the court before the final order is signed, but not later than 20 days after the date of rendition of the order; (2) a party makes an oral request in open court during the hearing; or (3) the amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines under Section 154.125 or 154.129, as applicable." Tex. Fam. Code § 154.130(a) (emphasis added). "If findings are required by this section, the court shall state whether the application of the guidelines would be unjust or inappropriate and shall state the following in the child support order:

"(1) the net resources of the obligor per month are $___;

"(2) the net resources of the obligee per month are $___;

"(3) the percentage applied to the obligor's net resources for child support is ___ %; and

"(4) if applicable, the specific reasons that the amount of child support per month ordered by the court varies from the amount computed by applying the percentage guidelines under Section 154.125 or 154.129, as applicable."

Id. § 154.130(b). "Findings under Subsection (b)(2) are required only if evidence of the monthly net resources of the obligee has been offered." Id. § 154.130(c).

Although Marcus timely filed a request for findings, the trial court did not issue separate findings. Instead, the court included the section 154.130(b) findings in the SAPCR order. In its order, the trial court found as follows:

The Court finds the application of the guidelines in this case would be unjust or inappropriate under the circumstances.

The Court finds the following variance from the guidelines is just and appropriate and in the best interest of the child under the circumstances.

The net resources of [Marcus] per month are $49, 445.00.

The percentage applied to [Marcus's] net resources for child support by the actual ordered rendered by the Court is 8 percent.

The court then stated eight "specific reasons that the amount of child support per month ordered by the court varies from the amount computed by applying the percentage guidelines under Section 154.125 or 154.129, as applicable." Marcus does not assert it was an abuse of discretion to include the findings in the SAPCR order. And, we conclude the court did not abuse its discretion by doing so. See Martinez Jardon v. Pfister, 593 S.W.3d 810, 824-25 (Tex. App.-El Paso 2019, no pet.) ("mere inclusion of findings in the Final Decree is not error and we are not precluded from considering those findings").

TRIAL EXHIBITS

Interwoven through several related issues, Marcus argues the court erred by accepting into evidence Cynthia's trial exhibit amended R-9. Marcus also complains the trial court committed reversible error by sustaining Cynthia's objection to his exhibit 14.

A. Cynthia's Amended Exhibit R-9

Prior to her deposition, Cynthia provided her exhibit R-9, which listed J.A.V.'s monthly expenses. According to Marcus, Cynthia was deposed and he prepared for trial based on those expenses. On the afternoon of trial, Cynthia submitted amended exhibit R-9, which listed J.A.V.'s expenses. This exhibit was admitted into evidence. Marcus asserts the trial court erred by admitting amended exhibit R-9 because Cynthia did not show good cause for her late supplementation of discovery.

Marcus called Cynthia to testify during his case-in-chief, at which time the original exhibit R-9 was admitted.^[2] Marcus's attorney then began to question Cynthia about amended exhibit R-9, at which time Cynthia's attorney asked the trial court to clarify whether amended exhibit R-9 had been admitted. Marcus's counsel replied, "I'm not opposed if the Court wants to admit the R-9, then it's admitted. I'm not opposed to that." The following then occurred:

Court: Okay. Ms. Espronceda, [Cynthia's counsel] say that again. Should we admit that at this time?

Ms.

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