1 Former Chi ef Justice Phil Johnson was on the panel that

heard oral ar

gument. He did not participate in the decision . Tex. R. App. P. 41.1(b).

2 The agr

eement p rovi ded both for div ision of the commu nity prope rty and affirmation of the separateproperty owned by each. NO. 07-03-0183-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL A NOVEMBER 16, 2005

______________________________ IN THE INTEREST O F C. F. C. AND M. C . C., CHILD REN

_________________________________ FROM THE 108 TH DISTRIC T COURT O F POTT ER COUNTY; NO. 55,541-E; H ONORABLE ABE LO PEZ, JUDGE

_______________________________ Before REAVIS and CAMPBELL, JJ. 1
MEMORA NDUM OPIN ION Lynn Franklin Cowden bri ngs this app eal from an order modifying his child support and directing payment of attorney ’s fees that appellee C aroline Kemper Cowden inc urred in pro secuti ng themodification a ction . We affirm.
Atthe time of the parti es’ di vorce in 1998, their subs tantial assets were div ided pursuant to their ag reement, 2 appellee recei ving the primary residence and cash, and2

app ellantre ceiving assets incl uding ranch property a nd mineral interests. The decr ee named the parents jo int managing conservators of their four minor childr en with appellee having the right to establish their primary r esidence. Appellant was ordered to pa y child support in the amount of $2,100 per month, with reductions w hen each child a ttained the age of eighteen. W hen the parties’ second child turned eighte en in November 2001, the support payments were r educed to $1,500 per month. Appellee filed an action to modify the suppor t order in J uly 2002. Her petition alleged a material ch ange in the c ircumstances of a person affected by t he court’s pr ior support order. She sought an unspecif ied increase in support payments and recover y of at torney’s fees. At a heari ng on the motion, appellee testi fied an increase in suppo r t payments was warranted by the needs of the children and a sub st an tial increase in appellant’s income since the divorce. Appellant and appellee’s attorney al so testified. The trial court set su pport paymentsat $3,917 and found, in accordance w ith Section 154. 130 of the Famil y Code, a ppellant’s monthly net resources are at lea st $21,192, appellee ’s monthly net resources

are $3,855; the support order ed is 18.5 percent of appellant’s net resources, and the amount of support w as based on the pr

oven needs of the childr en. It also awarded appel lee attorney ’s fees of $11,421 .58 through tri al, and an additi onal $10,000 for appeal. The cour t made findings of fact repeating t he findings in its order and, in additional findi ngs of fact, found the pr oven needs of the tw

o minor children stil l at ho me are at least $4 ,576. Appellant

now presen ts three iss ues in chal le nge of the trial court’s order. He argues first that the court erred i n failing tomake requeste d findings of fact. By hi s second3

and third issues, appellant contend s the court abused its discretion by increasing his child support to $3,917 p er month, and by awarding attorney’ s fees of $11,421.58. Appellant’s first issue assigns error to the tr ial court’ s failure to make a requested finding of fact on the consider ation it gav

e to expenses of the parties’ t wo older sons who
are over e ighteen and atte nding coll ege away from home. He req uested an addition al findin g, and amendment of another finding , to include a statement the needs and expens es of the two ol der childr

en are not rel evant to the i ssues before the court an d should not be considered in setting child suppor t for the young er

children. That request w as prompted by challenged evid ence of the older sons ’ colleg e expenses and appellant’s fail ure to contribute tow

ard those ex penses.
Atrial court’s duty

to make additional findings ex tends only to those reques ted on ultimate or controlli ng issues. It need not make f indings on issues that are merely evide ntia ry. In re Davis , 30 S.W.3d 609, 614 (Tex.App.–Texa rkana 2000, no pet.); Hill v. Hill , 971 S.W.2d 153, 155 ( Tex.A pp.–Ama rillo 1998, no pet.). An ul timate or contr olling issue of fac

t isone t hat call s for

the d eter mina tion of a fact essential to the cause of acti on or defense. Wichita Falls & Ok . Ry. Co. v. Pepper

, 134 Tex. 360, 135S.W.2d 79, 84 (1940), overruled on o th er grounds by Burk Royalty Co. v. Walls , 616 S.W .2d 9 11 (T ex. 1 981); In re Edwards, 79 S.W.3d 88, 94-95 (Tex.App.–Texarkana 2002, no pet. ). If the fact sought is necessary to form the basis of the judgment, then the issue is an ultimate or controlling one. Pepper , 135 S. W.2d at 84.3 The trial cour t’s findings

concerning the monthly ne t resources of the parties are not challeng ed on appeal. 4 An evidentiar

y issue concerns facts tha t may be considered by the factf inder in deciding the controll ing issue. In re Edwards , 79 S.W.3d at 95. See Pepper , 135 S.W.2d at84 (referri ng to factual determinati ons “necessari ly embraced in the determinat ion of the ultimate fact issue”). A requested additional f inding asking the court to state the evidence
on which it relie d for its original f indings was held to be evidenti ary and thusnot requir ed. Dura-Stilts Co. v. Zachry , 697 S.W .2d 658, 661 (Tex.App. –Houston [1st Dist.] 1985, writ ref'd n.r.e.). Appellant’s requests for findings that certain ev idence wasnot relev ant to the issue of the proper level of child suppor t were si milarly

evidentiar

y only , and the trial court did not err by

refusing them. We overrule appellant’s first issue.
In his second is sue appellant co ntends the tria l court abused its discr etion by increasing his ch ild support to $3,917 per mo nth. Appellant presents two argument s in support of the secon d issue. He first arg ues the court’ s finding that the proven n eeds of the children are $4,576 is not s upported by s ufficient evidence. 3 A trial court is g iven broad discretion in setting and modifying child suppor t pa yment s, and absent a cl ear abuse of discretion, the court's order wi ll not be dis turbed on appeal. In re D.S. , 76 S. W. 3d 512, 516 (Tex.App.–Ho uston [14th Dist.] 2002, no pet.). In determ ining whether the trial court’s decision constitutes a n abuse of its dis cretion, we rev iew the enti re record, Mercedes-Ben z Credit Cor

p. v. Rhyne , 925 S.W .2d 664, 666 (Tex. 1996 ), and must view the evidence in the lig ht most favorable to the trial court’s action a nd indulge every legal presumption in favor of the judgment. Nordstrom v. Nordstr

om , 965 S.W.2d 575, 578 (Tex.App.–Hous ton4 The two figur es total $4,575. The one-dollar difference in that total and the proven needs recited i n the court’sfindings is not addressed i n the record, and we w ill ig nore it.
5 These expen ses in cluded utili ties, home insurance, pr operty tax

es, grocer ies, and maintenance. 5 [1st Dist.] 1997, pet. denied) . Abuse of discr etion does not ex ist as

long as the re issome evidence of a su bstantive an d probativecharacter to support the dec ision. In re C.R.O. , 96 S.W.3d 442, 447 (Tex.App.–Amaril lo 2002, pet. deni ed); Nordstrom , 965 S.W.2d at 578.
Evidence supportin g the trial court’s findi ng on the needs of thechildren i ncludes
an exhib it pre pare d by ap pell ee lis ting m onth ly expe nses incu rred by o r attributed to the children and her testimony concerning that exhibi t and other expens es not included in t he d ocument. Appellee test ified she derived the figures in the exhi bit from her actu a l expenses, and the expenses w ere incurr

ed to fulfill the c hildren’s n eeds. In summary , the exhibitlisted $2,889 of expense s for 16-year-old Craig and $1,686 for 13-year-old Mary Caroline. 4 The diffe rence betw een the child ren was pri ma rily du e to the inclusio n of automobile expenses for C raig. $743 of each child’s total was the result of attributing one third of some househol d expenses 5 to them. Appellant

points out that appellee’ s trial exhibit a nd testimony provided di fferent expense figures than her discovery resp onses, and that the only ev idence of the proven needs of the children came f rom appellee, an intereste d witness. Wh at constitutes “needs” of a child has not

been defined by s tatute or case law, but t hey are not limited to the bare necessities of li fe. W hen evalu atin g a chi ld’s n eed s, co urts are to be gui ded by th e6 Appellant wanted Craig to be denied use of the car for at least si x months follow ing the collisi on. He did not testify the car should be sold. 6 paramount

principle of seeking the best interest of the c hild. Rodriguez v. Rodriguez

, 860 S.W.2d 414, 417 (Tex. 1993). A ppell ee’s credibi lity and t he weigh t to be given her testimony

concerning the need s of the two c hildr en rema i ning at home w ere matters for the trial court’s deter mination. See In re Gonz alez , 993 S.W.2d 147, 159-60 (Tex.App.– San Antonio 1999 pet. de nied) (managing co nser vator in best position to explain child’s needs); Scott v. Younts , 926 S.W .2d 415, 421 (Tex.App. –Corpus Christi 1996, writdenied) (mother in best

position to ex plain needs of chi ld). Appellant

also points to test imony at tr ial that Cr aig had not driv en his car for several months because shortl y after turni ng 16, he str uck a par ked car w hile intox icated. Appellant’s assertion on appeal that there is no ev idence of any need for the car dis regards appellee’s testimony that the expenses listed on he r exhibitreflecte d the needs of the children. While appellant t e stified he wanted his children to earn m oney to pay for such thin gs, he did n ot go s o fa r as to say th e car was un nece ssary. 6 Appellant

further contends ma ny of the household expenses reflected in appellee’s evidence, including the utiliti es, taxes an d maintenance, are not needs of the chil dren because they would be incurred even if the c hild ren d id no t live in the house. H e offers no authority in support of that

argument. We do not agree thetrial cour t abused its di scretion by permitti ng the attri bution of such ex penses to the chi ldren. See Scott, 926 S.W.2d at 419 n.6, 422 (aff irming needs that included utilities, home repairs and taxes); Yarbrough
v. Yarbrough , 151 S.W .3d 687, 693 (Tex.App. –W aco 2004, no pet.) (fin din g of need s7 Appellant also argues the trial court’s finding of the children’s nee ds is so against

the great weight and p r eponderance of the ev idence as to be mani festly unjus t. To the extent this factual su fficiency standa rd is appli cable to rev iew of the t rial court ’s find ings concerning the proven n eeds of the childr en, see C .R.O. , 96 S.W.3d at 447, we do not agree that the record as a whole shows the finding to be manifestly unjust. As noted, the court’s finding was based on the testimony of thechildren’s mother concerni ng her actual expenses for pr

ovision of thechildren’s needs. 7 supported “if the [tri al] court con sidered” tw o-thirds of hous e expenses asexp enses of children).
We conclude the tr ial court’ s finding of $4,576 as the prov

en needs of the chil dren is supported by evidence of a substan tive and probative character. 7 Appellant’s next arg ument in support of his second issue concer ns the trial court’s allocation of the responsibil ity to meet t he found needs of the chil dren. Section 154.126 of the Family Code is applicable where, ashere, an oblig or’s net res ources exceed $6,000 per mon th. T ex. Fam. Code. Ann. §154.126 (Ver non 2002). It di rects a cour t to apply t he percen tage guidelines

of Section 154.125 to the first $6,000 of net resources todetermine
a presumptiv ely reaso na ble am ount of support. The statute also author izes a cou rt to order additi onal s upport

based o n the i ncome of the parties and the proven need s of the children. Id . Under subs ection (b) , the ad ditional amount s hould be determined by subtracting the presumptive amount from the proven needs of the child and t hen allocating responsibil ity

for meeting the addition al n eeds between the parties according to their circumstances

. Id. Applied to these parties, the court was required to subtractthe presumptive amount of support from the first $6,000 of appell ant’s net res ources, here $ 1,500, from the proven8 Appellant pro poses an alternate al location of the unmet n eeds that begi ns by

calculating the presumptive amount appellee w ould have been r

equired to pay if she had been an obligor . He citesthe discussi on of such a calcul ation in Nordstrom , 965 S.W.2d at581. The court the re states the t rial court could have utilized such a cal culation as a basis for i ts de cisio n not to awa rd ad diti ona l sup port beyon d the oblig or’s p resu mpt ive amount. Id. N ords trom does not suggest that such a c alculation i s a part of the method required under

Section 154.126( b), and does not pr ovide a basis to conclude the trial court here abused itsdiscretion by not employ ing it. 8 total needs of

$4,576. The cost of meeting the resulting additional need s is $3,076. The
cou rtwas req uired to all ocate responsi bility to meet these needs bet ween the partie s “according to the circ umstances of theparti es.” Te x. F am. Code Ann. §154.126( b) (Vernon 2002). The court assigned appe llant

responsibil ity

for $2,417, or 78.5 percent, of the additional needs . It assig ned $659, or 21.4 per cent, of the additio nal needs to appellee. The resulting total support obligation of $3,917 is 18.5 per

cent of appellant’s

net resources, while t he $659 assign ed to appellee i s 17 percent of her net resources . We do not agree thi s allocation shows a c lear abuse of dis cretion by the trial c

ourt. 8 Appellant

also reiterates his position that attribution of a share of hou sehold expenses to the children results in a windfall to appellee a nd was improper. Having stated
our conclusion the trial court’s treatment o f such expenses asneeds of the children w as notan abuse of the court’s discretion in this case, we need not further addr ess that iss ue here. Appellant

finally ar

gues additio nal circumstances of the p art ies the court should have considered, i nclud ing inc reases in appel lee’s income s ince the divorce, her inheritance of money and mineral inter ests, and the cas h receive d by appelleeas part of their prope rty se ttlement. But the court also had before it evi dence of the substanti al9 This amount was awarded through trial. W e do not constru e appe llant’s ch allenge as applicable tothe additional amounts awarde d for appeal to thi s court or the Texas Supreme Court.

10 Appellant sa y s appellee brou ght the modificat ion action to pu nish him for not contributing to the colleg e education of the old er childre n. But appel la nt has not chall en ged in this court the existence of the ma terial and substantial change in circumstances

required by Section 156.401. 9 property awarded to appellant at divorce, and increases i n his income si nce the divo rce. Considerati on of the circumstan ces of the parties in this well-devel oped record doesnot alter our conclusi on the trial cour t did not abuse its discretion. W e overrule appellant’s second issue. Appellant’s third issue assigns error to the award of attorney’s fees in the amount of $11,421.48. 9 He does not di spute the powe r of a court to aw ard attorney ’s fees in an action of this type. See Tex. Fam. Code Ann. §106. 002 (Vernon 2002) (autho rizing award of attorney’ s fees under Title 5 of th e Family C ode, which includes Sect ion 156.401 governi ng support modificat ion). Appell ant does not challeng e the testimony of appellee’s counsel concerning the time expen ded in preparati on and presentation of the action, or

the reasonableness or necessit y of the fees charg ed. His contentions focus on hi s perceptions concerning the unfairness of the court’s aw ard of additional support and conce rning appellee’s moti ve for brin ging the mo difica tion pro ceedin g. 10 The award of attorney’s fees in a suit affecting the parent-chi ld relations hip is disc retionary with the trial cour

t. C.R.O. , 96 S.W.3d at 452. Appellant’s contentions do not show an abus e of discretion by the trial court in theaward of attorney’s fees. Norris v. Norris , 56 S.W.3d 333, 346 (Tex.App.–El Paso 2001, no pet.) (conten tion that mother w ho prevail ed on her motion tomodify should10

nothave prevailed did not de monstrate abuse of discret ion i n a t t o r n e y ’ s fe e a w a r d )

. We overruleappellant’s t hird issue Having overrul ed each of app ell ant’s issues , we affirm the j udgment of the tri al court.

James T. Campbell Justice