NO. 07-05-0058-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL A JUNE 9, 2006

______________________________ IN THE IN TEREST OF C.N.G.V ., M.A.L.V. AND J.B.N.V., CHILDREN

_________________________________ FROM THE 264 TH DISTRICT COURT OF BELL COUNTY; NO. 197,2 41-D; HON ORABLE M ARTHA J . TRUDO, JUDGE

_______________________________ Before REAVIS and CAMPBELL and H ANCOCK, JJ.
MEMORAND UM OPINION Appellant

Traci Ly nette Volkert brings this appeal from an order modifying the child support obligat ions of a ppelleeCharlesW. Volke rt. Findi ng the tri al court did not a buse its discreti on in mod ifying th e support obligat ions, weaffirm.
Atthe time of the Volkert’s divorce in 1998, Charle s was ordered to pay $1300 per month in support for their three minor children. In December 2001, Charles filed a motion seeking reduction of his support obligation. Traci answered with a request to increase the amountof support. On November 5, 2003, the parties reached an agreement, evidenced bya writin g, t o i ncrease the support payments to $1500 per month beginning December1 A pay sheet introduced at the hearing on Traci’s motion for new trial showed Charles earned $ 82,803.6 5 during 2003. 2 1, 2003. T his agre ement was incorpo rated in the court’ s writte n order fil ed in Ja nuary 2004. This order recited the trial court’s finding that Charles had net resources of $5000 per month and Traci’s net resources were $0. It further found the amou nt of suppor t ordered was in conformity with the percentage guidelinesof section 154.125 of the Family Code. Te x. Fam. C ode Ann. § 154.12 5 (Vernon 2002).
Charles filed a second motion to modify in May 2004 alleging an unspecified change in the circu mstances of the pa rt ies. Traci again responded by also alleging a change in circumstances and requ esting a n increa se in chi ld suppo rt. The motion w as heard in August2004. Charles was the only witness atthe hearing. Through his testimony and pay
r ecords, it was shown he was employed as a mechanic for a pharmaceutical com pan y earning $23.59 p er hour th roughout 2 003 and 2004. A

change i n corpora te structu re broughta change in Charles’ work schedule in April 2003 . Under the n ew schedule, he worked 12 hour shifts for three days, was off for two days, then worked two more 12 hour shifts before h aving th ree days off. Due to a shortage of mechanics to implement the new schedule, Charles earned substantial overtimepay. 1 As more mechanics were hired, the amountof overtime work available was reduced and ultimately eliminated by November 2003. He introduced a pay sheet dated Augu st 8, 2004 showing year-to-date gross earnings of $32,885.29. There was also evidence Charles had often received bonuses as part of hi s Decembe r pay but that pract ice had been dis continue d.3

In a September 2004 order, the trial court reduced Charles’ support obl igat ion t o $1020 per month, with conforming reductions as the need for support terminates for each child. Traci filed a motion for new trial complaining of the trial cou rt’s finding there had been
a substantial change in circumstances justifying a modification, the method the trial court used in determining Charles’ net resources, and its fail ure “to consider” the agreement on which th e prior s upport or der was b ased.
Atthe hearing on the motion, the trial court overruled the mo tion, specifically rejecting the co mplaint that determining net resources based on Charles’ earnings from January through August 2004 was impr o per. The judge permitted Traci to testify as an offer of proof over Charles’ objection. In subsequent findings of factand conclusions of law made at Traci’s request, the trial court found in November 2003, Charles’ net income was $5000 per month, du ring 20 04 his income was “reduced substantially,” and hi s “net income/netresources” in 2004 was $3468.25 per month. The conclusions of law included the court’s determinatio n that m odification was warranted because there was a material and substantial change in circumstances. At the sam e time, t he court signed a supplemental order requiring Charles to pay, as additional child support, 30 percent of ne t proceedsof bonus es he received in Decembe r 2004 an d thereaf ter.
Traci’s brief li sts a single issue assigning error to the trial court’s reduction in child support. She presents two supporting arguments: first, that there was no material and substantial change in circumstances from the time of the prio r modification order and second, the trial court should not have calculated child support based on Charle s’ year-todate income.4

FamilyCode section 156.401 authorizes modification of a child support order if (1) the circumstances of the child or a person affected by the order h ave “ materially an d substantiallychange d” si nce the date the order was rendered or the executio n of an agreementon which the order was based, or (2) more than three years have elapsed since the order was rendered and the sup port award differs by 20 percent or $100 from the amountdetermined by the support g uidelin es. Tex . Fam. Cod e Ann. §156.401(a) (Vernon Supp. 2004). On f inding the requisite change, a trial court is g iven broad discretion in whether to modify

support, In re Marriage of Hamer , 906 S.W.2d 263 , 265 (Tex.Ap p.– Amarillo 1995, no

writ), an d the amo unt of sup port required

. Nordstrom v. Nordstrom , 965 S.W.2d 575, 578(Tex.Ap p.–Houston [1st D ist.] 1997, pet. denied). Absent a clear abuse of discretion, the trial court's o rder wil l not be disturbe d on app eal. In re D.S. , 76 S.W.3d 512, 5 16 (Tex. App.–Hou ston [14th Dist.] 20 02, no pe t.). Unde r an abus e of disc re tio n standard, legal and factu al insuf ficiency are not i ndepend ent groun ds of erro r, but are rather relevant factors in assessi ng wheth er the tri al court abused i ts discre tion. Dolan v. Martine , No. 03-03-0112-CV, 2004 WL314972, at *3 (Tex.App.–Austin Feb 20, 2004, no pet.) (mem.); In re Pec ht, 874 S.W.2d 797, 800 (Tex.App.

– Texarka na 1994, no writ). Abuse of discretion does not exist as long as there is some evidence of a substantive and probative characte r to suppo rt the dec ision. Dolan , 2004 WL 314972, at *3; In re C.R. O. , 96 S.W.3d 442, 447(Tex.Ap p.–Amaril lo 2002, pet. denied) ; Nordstrom , 965 S.W.2d at 578.
The only change in circumstances asserted here, and found bythe trial court, was a reduction in Charles’ net resources. Traci’s argument includes an extensive discussion of the evidence of Charles’ income in 20 03 and 2004 and the conclusion there was no5

reduction in his income, and thus no change i n circumstances. Her ar gument does not address the trial court’s finding in the prior modification order and the finding of fact in this proceeding that Charles’ net resources in November 2003were $5000 per month, or the findin g of fact that h is net re sources a t the timeof the 20 04 modifi cation h earing were $3468.25per month

. Traci cites Ha mmond v. Hamm ond , 898 S.W.2d 406 (Tex.App.–Fort Worth 1995,
no writ) , in supp ort of her contention Charles failed to meet his burden to establish a material and subs tantial c hange in circums tanc es. In Hammond , the spouse seeking reduction in his s upport ob ligatio n presented evide nce of his income at the time of the modification h earin g, but no evidence of his income at the time of divorce other than the characterization of his jo b as “hig h paying .” Id. at 408 . The court of appeals found that vague evidence was in sufficie nt to supp ort the tri al court’s finding of a material and substanti al chang e. Id.
Unlike Hammond , in this case we have the benefit of the express finding in the prior modification order that Charles had net resources of $5000 per month . That or der refle cts t he court’s further finding that the $1500 support payments constituted 30 percent of Charles’ net resources which were in conformity with statutory s upport guidelines. The finding that Cha rles had net resourc es of $3468.25 per month at the time of the August 2004 modification hearing, reflects a greater than thi rtypercent reduction, supporting the
court’s de termination that a material and substantial change had o ccurred. Unless the court abused i ts di scretion in deriving the $3468.25 net resource figure, we must reject6

Traci’s assertion that no material and substant ial chan ge was sh own. That is the subject of Traci’ s second argument

. Traci’s challenge to the method used to determine Charles’ net resources isbased
on the trial court’s use of income from Januar y thro ugh August 2004 rather than the previous 12 m onths. The only authority she cites in support is Famil y Code section 154.061( a), providing: “whenever feasible, gross i ncome should first be computed on an annual basis and then should be reca lculated to determ ine aver age month ly gross income.” Tex. Fam. Code Ann. § 154.061(a) (Vernon Supp. 2005). The basi s for Traci’s complaint is that use of Charles’ income for the seven months of 20 0 4 rather than the previous 12 months to determine his average income excluded the bonus he earned in Dec ember 2003. Traci’s brief do es not p oint to an y evidence controverting Charles’ testimony he did no t expectto receive a bonus in the future. More significantly, her argumentfail s to acknowledge the trial court’s s upplemen tal order directin g payment

of 3 0 pe rcent of any future bonus as

additio nal chil d support . On the e vidence presente d, th e trial court’s use of year-to-date earnin g s to compute average income, and separate order allocating possibl e future b onus pay ments, do not show an abuse

of discre tion.
Traci also presents an argument that equity should preclude Charles from seeking a reduction in his support obligation after agreeing to pay $1 500 per month in November 2003. She asserts, based solely on her testimony at the motion for new trial hearing, the agreementwas based on her abandonment of claims for a retroacti ve increa se in sup port in exchange for an increase of Charles’ su pport payment from $1300 to $1500 per month. Her argumentmust fail, for at least two reasons. First, the written agreement appears in7

the record an d recites

a differe nt consid eration. It contains two provisions, an increase of Charles’ support p ayme nts to $1500 p er month a nd denia l of “all other rel ief soug ht, including request to add V i ctoria Co[unty] as location where children’s domicile may be establ ished.” S econd, Traci’s argument effectively asks this court to insert into their agreementa provision they did notinclude, precluding Charles from seeking modificatio n of his supp ort oblig ations fo r a set pe riod of ti me. See In re D.S. , 76 S.W.3 d at 515 (agreementnot to seek increase for three years); Farish v. Farish , 921 S.W.2d 538, 540 (Tex.App.–Beaumont

1996, no writ) (agreement not to seek decrease for five years). We must decline to rewrite the par ties’ ag reement. See Cross Timbers Oil Co. v. Exxon Corp. , 22 S.W .3d 24, 26 (Tex.App.–Amarillo 2000, no pet.) (court could not change agreement merelybecause one of its parties thinks that something else is needed in it). Moreover, as the trial co urtnoted during the motion for new trial hearing, durin g most of 2004, Charles paid $ 480 per m o nth more than the amount he would have owed under the guidelines. This is an indication the trial court considered the equities affecting both parties. No abuse of discretion is shown. We overrule Traci’s sole issu e and affirm the order of the trial court.

James T. Campbell Justice