NO. 07-02-0401 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A JULY 7, 2003

______________________________ IN THE M ATTER OF THE MARR IAGE OF TRALEIA GRACELYNNE W ING AND MIKE SCOT W ING AND IN THE INTER EST OF STOR MY WHARTON WING, LARAMIE MIKA W ING AND TEX W ILLOUG HBY W ING, CHIL DREN

_________________________________ FROM THE 69 TH DISTRICT COURT OF DALLAM COUNTY; NO. 9805; HON ORABLERON EN NS, JUD GE

_______________________________ Before JOHNSON, C.J., and REAVIS and CAMPB ELL, JJ. MEM ORAN DUM OP INI ON Bythis appeal from a Final Decree of Divorce following a bench tria l, appel lant Mike Scot W ing presents tw

o issues alleging the trial court erred in (1) admitting into evidence1 In h is appellate brief, Mike identified three issues forreview. At oral argu ments,

however, hewaived the third issue. 2 a letter he had written to his ch ildren, and (2) setting the amount of child support. 1 Based upon the following rationale, the judgm ent is affirmed. In April of 20 01, appell ee Tral eia Grace lynne W ing filed an original petition for divorce seeking dissolution of her eleven year m arriage to Mike. The trial court conducted a final hearing on the petition in May of 2002. In the Final Decree of Divorce, the co urt appointed Mike and Tral eia joint managing conse rvators of the coup le’s th ree children, with Traleia having p hysical pos session of them , and ord ered M ike to pay child suppo rt in the am ount of $850 per m onth. This appeal ensued. In our analysis, we will consider Mike’ s issuesin logical rather than s equential ord er. Byhis second issue, Mike con tends the trial co urt erred in setting the am ount of child su pport. He com plain s th e ch ild s upp ort ord er p lace s him

in a pos tur

e w hich w ill make it difficult, if not impossible, for him to comply. We disagree. Because Mike did not request findings of fact, we presum e the trial cou rt m adeall the necessary findings to support the j udgme nt. SeeRoberson v. Robinson, 768 S.W.2d 280, 281 (Tex . 1989). We will u pho ld the judgm ent on any legal theory that supports the findings. SeeAllen v. A llen, 717 S .W.2d 311, 313 (Tex. 1 986).3

A trial court’s ruling on chil d support will not be reversed on appeal unl ess the ruling is s hown to bea clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 10 9 (T ex. 1990). The test for abuse of discretion is whether the court acted without reference to guidi ng rules a nd princ iples; in other words, w hether the act w as arbitrary or unreasonable. Id . In m aking this det er mination, w e m ust view the evidence in the light mos t favorable to thetria l cou rt’ s ac tion s an d ind ulgein every lega l pre sum ptio n in favor of the judgm ent. Tucker v. Tucke r, 908 S.W.2d 530, 532 (Tex.App.–S an Antonio 1995, w rit denied). If there is som e probative and substantive evidence to s upport the judgm ent, then there is no abuse of discretion. SeeHolley v. Holley, 8 64 S.W.2d 703, 706 (Tex.App.–H ouston [1 stDist.] 1993, w rit denied). Mike contends the child support order is ex cessive in light of the 1999 joint and 2001 individual tax returns which w ere adm itted into evidence at trial and which reflected he had negative incom e for those tw o years. Considering the 2000 joint incom e tax return filed byMike and Traleia, however, t he child support guidelines authorized the trial court to order Mike to pay $903.26 per m onth, assum ing he w as s elf- em ployed, and $96 3.7 7 if he had a n em ployer. Tex. Fam . Code Ann. § 15 4.1 25( b) (Ve rno n 20 02) . Th us, the re is so me e v idence of a sub stantive and probative character to suppo rt the tria l court’s decision to order M ike to pay child suppo rtin the amount of $850 per month. W ilemon v. W ilemon, 930 S.W.2d 290, 293 (Tex .App. –Waco 1996, no w rit). The trial court, therefore,2 Mike wrote the letter to his children from j ail after the trial court fou nd hi m i n

contem ptof cou rtfor viol ating the te mporary orders. He wrote, “[t]hey (Tr alei a, Troy, Betty and d—head Enns [

the judge] ) put m e in this hell hole for l oving you guys.” 4 did not abuse its discreti on in enter ing such an order. Mike’s second issue is overruled.

B y hi s first issue, Mike contends the trial court erred in admitting into evidence a letter he had written tohis children. 2 He m aintains the letter, in which he referred to the trial judge in rather unflattering term s, was irrelevant to anyissue at trial , and its prob ative value was subs tantially outweighed by its prejudicial effect. We disagree. The admission and exclusi on of eviden ce is c omm itted to the trial court’s sound discretion. City of Brow nsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). To reverse a judgm ent based upon a cl aimed error in admitting or excludi ng evidence , a party must show the error probably resulted in an improper judgm ent. SeeTex. R. A pp. P. 44.1(a)
. Typical ly, a successful chal lenge to a tr ial cou rt’s evi d entiary rulings requires the com plaining party to demonstrate that the judgment turns on the parti cular evi dence excluded or adm itted
. See Te xas Dep t. of Tr an sp . v. Abl e, 35 S.W .3 d 6 08 , 6 17 (T ex. 2000). W e are notpersuaded it waserror for the trial court to adm it the co nteste d letter. W hen Mike obj ected to its adm ission, Traleia responded the letterwas relevant because itdem onstrated Mike’s inabili ty to accept responsibility forhis actio ns. Relevant evi dence5

means ev ide nce having any tendency to m ake the ex istence of any fact th at is of consequence to t he d ete rm inat ion of th e ac tion m ore pro bab le or

less pro bab le th an it w ould without the ev idence. Tex. R. Evid. 401. Because Traleia sought a disproportionate share of the parties’ estate b ased upon Mike’s fault in the break up of the m arriage, the letter was relevant to prove Mike’s c ulpabili ty. SeeTe x. Fa m. Code. Ann. § 6.002 (Vernon 2002). Furtherm ore, having reviewed the contents of the letter, w e cannot say its probati ve value was s ubstantially outweighed by the danger of unfair prejudice. SeeTe x. R. Evid. 403. Thus, the trial court did not err in its admission. Issue one is overruled. Accordingly, the j udgme nt of the trial court is affirmed.
Don H. Rea vis Justice