### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03 - 20 - 00086 - CV
William P. Klages , Appellant

v. Rita E. Klages , Appellee

FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY NO. D - 1 - FM - 16 - 005533 , T H E HONORABLE AMY CLARK MEACHUM , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
William P . Klages appeals the district court ’ s modification order in his suit affecting the pa rent

- child relationship , c hallengi ng the $1,3 50 amount of his monthly child

support obligat ion. We will affirm the d ist r ic t c o urt ’ s order.
BACKGROUND William and Rita E. Klages 1 had one child, born September 18, 2005 , and divorced in 2017

. In 201 8 , William filed a petition to modi fy the $1,710 amount of child

- support set forth in the parties ’ final divorce decree an d al leg ed that his emp loyment ci rcumstances ha d changed , causing a decrease in his income

. Both William and Rita testified during the evidentia ry hearing on his petition to modify

. Evidence at the hearing show ed that William lives in California , wo r ks for a Can adian co mpany called QA Consultants USA, Inc. a s “ Vice President ,

1 W e refer to the p arties by their first names for cla r ity b e c a u s e t h e y s h a r e t h e s a m e l a s t n a m e .2

Advisory and Partner M anagement ” and sells s oft ware - testing services

. For this work, William is paid a “ base salary ” of $80,000 annually , plus 5% commission s and a bonus of up to fif t y p erc ent of hi s income (app roximately $40,000 excluding commission s )

. Rita was a hom emaker but by the ti me of th e hearing had obtained a food

- manager ’ s licens e and provid ed catering services for one event , from which she e arn ed about $1,400 after ex p enses .

A t the end of the heari ng, t he district court denied William ’ s motion to mod i fy the

c hild

- suppo rt order

. L ater that day , t he district court notified the parties that it had reconsider ed its oral ruling sua sp o n t e and that it would grant Will i am ’ s reques ted modification and reduc e his child

- support obligation to $1,350 per mon th. The district court incorporated that ruling in to its December 4, 2019 “ Order in Suit to Modify Spousal Maintenance and the Parent

- Child Relationship.” The or d er also recited th at William ’ s net resou rces per month are $4,529.49 ; that Rita ’ s net re s ources are $ 0; and that the percentage applied to the first $4,529.49 of William ’ s ne t

resources for child support is 29.8 percent.

Additionally, t he district court filed finding s of fac t and conclusions of law stating in relevant part that the child

- su p port prov isi ons in the order are in the best interest of the child; that the proven n eeds of the child include the need for extra

- curricular activities; and that the r e is an increased n eed for support because William is not entitled to any periods of poss e ssion of the child. The district c ourt reiterated its f indings from the child

- suppor t order as to the amount of William’s net resources , the amount of Rita’s net res o urces , and the per cen tage applied to William’s net resources for child support

. Further , the district court found that “ William Klages is elig ible to receive a bo n us of up to $40,000 per year

. ” Finally, the district c ourt specified that it considered ce r tain factors in ma kin g its child

- support order , including : (1) the child ’ s age and needs ; (2) the parents ’ ability to contribute to the child ’ s suppo rt ; (3) any fi nancial reso urces3

available fo r the child ’ s support ; (4) the amount of time of possession of and access to the chi ld; (5) the amount of alimony o r spousa l maintenance that a party is pa ying or receiving ; and (6 ) provision for h ealth car e insurance and paymen t of uninsured medical expenses. See Tex. Fam. Code § 154.123(b)(1)

- ( 4), (8 ), (12)

. This appeal followed. 2
DIS CUSSION Modified Order of Child Support

In his only appellate issue, William challeng es the $1,350 amount of ch ild support

r equired by the modific ation order

. H is complaint is based on the di s trict court ’ s decisi on to deviate from the child

- support gui delines in the Family Code

. See id. § 154.122 (providing presu mption s that child

- sup port payment estab lished by guidelines i s reasonable a nd that child

support order conforming to gui d elines is in child ’ s best interest ).

Once the trial court determin es a material and substantial change has occurred, warranting modification of a child

- su pport order , the extent of the alteration of the amount of child support also lies within the court ’ s discretion. Nordstrom v. Nordstrom , 965 S.W.2d 575, 578 (Tex. App

. — H ouston [1st Dist.] 1997 , pet. denied )

. We will not disturb a trial court ’ s child

- s uppo rt order unless the complaining party show s a clear abuse of di scretion. Worford v. Sta mper , 801 S.W.2d 108, 109 (Tex. 1990) ; Hollifield v. Hollifield , 925 S.W.2d 15 3, 155 (Tex. App.

— Austin 1996 , no writ )

. A trial court abuses its discretio n if it acts arbit rarily, unreasonably, without regard to gu iding legal principles, or without su pporting e vidence. Coburn v. Moreland , 433 S.W.3d 809, 823 (Tex. App.

— Aust in 2014, no pet.) ; Hollifield , 925 S.W.2d at 155

. In this modification suit, a s in other family

- law cases, the abus e - of

- discretion sta ndard and traditional

2 Rita i s acting pro se on appea l and did not fi le a brief.4

suffi ciency standards of review o v erlap. See Zeifman v. Michels , 212 S.W.3d 582, 587

- 88 (Tex. App.

— Austin 200 6, pet. denied) ; Echols v. Olivarez , 8 5 S.W.3d 475, 47 7 (Tex. App.

— Austin 2002, no pet.)

. In these cases, legal and factual i nsufficiency are not in dependent grounds of error but are relevan t factors in assessing whether the trial court abused its disc ret ion. See Coburn , 433 S.W.3d at 823 ; Zeifman , 212 S.W.3d at 587 . Thus, in d etermining whether the trial court abused its discretion, we cons ider whether t he court had sufficient e vidence upon which to

e xercise its discretion, and if so, whether it erre d i n the application of that discretion. Coburn , 433 S.W.3d at 823 ; Zeifman , 2 12 S.W.3d at 588 ; Echols , 8 5 S.W.3d at 47 7

- 78

.

Evi dence is legally sufficient if it would en able reas o nable and fair

- minded people
to reac h the verdict un der review. Exxon Co rp. v. Emerald Oil & Gas Co ., 348 S.W.3d 194, 215 (Tex. 2011) . Evidence is legally insufficient when: (1) t here is a complete abse nce of a vital fact; (2) rules of law or e vidence p r eclude giving weight to the only evi dence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively establishes the opposi te of the vital fact. City of Keller v. W ilson , 16 8 S.W.3d 802, 810 (Tex. 2005) ; Steele v. Steele , No. 03

- 07

- 00011

- CV, 2009 Tex . App. LEXIS 6519, at *9 (Tex. App.

— Austin Aug. 19, 200 9, n o pet.) (mem. op.) . When determining whet her the evidence is legally sufficient to support the trial court’s exercise o f discretion, we consider the evidence in the light most favorable to the tri al court’s findings if a reasonable fac tfinder could an d disregard evidence to the c ontrary unless a reasonable factfinder could not. City of Keller , 168 S.W.3d at 827 ; Steele , 2 0 09 Tex. App. LEXIS 6519, at *9

. When determining whet her the evidence is f a ctually sufficient to su pport the trial court’s exercise of discretion, we consider and weigh all the evidence presented and set aside the trial court’s findings only if they

are s o contrary t o the overwhelming weight of the evidence such that they are cl e arly wrong and5

unjust. City of Keller , 168 S.W.3d at 826

. We review a trial court’s findings of fact for legal and factual su fficiency under these s ame standards. See R obbins v . Robbins , 550 S. W.3d 846, 854 (Tex. App.

— Fort Worth 2018, no p et.) . When th e r ecord contains some evidence of a substantive and probative character supporting the trial court’s decision, there is no abuse o f discretion. T uan Anh T

ran v. Nguyen , 480 S.W.3d 119, 1 28 ( Tex. App.

— Houston [14 th District] 2015,

n o pet. ) ; Coburn , 433 S.W .3d at 823 ; Zeif m an , 2 12 S.W.3d at 58 7 ; Echols , 8 5 S.W.3d at 47 7

. Child Support in Exc ess of Statutory G uideline Amount

Section 154.125 of the Texas Fa mily Code applies when the obligor ’ s monthly net resources are not greater than $ 8 ,550 3 and sets for th a schedule of pe rce n tages that presumptively apply to the obligor ’ s net resources if t he obligor ’ s monthly net resources are not greater than $ 8,550

. Tex. Fam. Cod e § 154.125(b)

. But a trial court may deviate from those percentage guidelines if the evi dence rebuts the pr esu m ption that applic ation of those amounts is in the child ’ s best interest. See id. § 154.123(a)

. When making that determination, t he trial court may consider certain specifi ed factors and “ any other reason

. ” See id. § 1 5 4

. 123(b)

.

To impose child s u ppo r t beyond the guidelines, the record must contain evidence of the child ’ s “ proven needs

. ” See id. § 154.126 ; Rodriguez v. Rodriguez , 860 S. W .2d 414, 417 (Tex. 1993) ( n oting that child

- support award exceedin g statutory guidelines must be based

on chi ld ’ s un met needs )

. A child’s needs are not limited to “the bare necessities of life.” Rodrigue z , 860 S.W.2d at 41 7 n.3 . Rather, the trial cou rt must determine, in its di scre tion, the

3 Under the g uidelines applicabl e to this case , the net

- resources cap is $8, 55 0. See 38 Tex. Reg. 4647, 4647 (July 19, 2013) (Office of the Att’y Gen., Announcement of Adjustment Requ i red by Texas Family Code § 154.125 )

. E ffective September 1, 201 9 , the amount of t he net

- resou rces cap increased to $ 9 , 200

. See 44 Tex. Reg. 3559, 3 559 (July 12, 2019) (Office of the Att’y Gen., Announcement of Adjustment Req u ired by Texas Family Code § 154.125 )

.6

child’s needs on a case - by

- case basis b y following the “ paramount guid in g prin ciple: the best interest of the child .” Id. ; see Iliff v. Iliff , 3 39 S.W.3d 74, 81 (Tex. 2011) (quoting R o driguez , 860 S.W.2d at 41 7 n.3). A trial court sitting as the trier of fact at the hearing on child support is the sol e judge of the credibili ty of the witnesses and the we ig h t assigned their testimony and may accept or reject all or an y part of the testimony of each witne ss . Hatteberg v. Hatteberg , 933 S.W.2d 522, 530 (Tex. App.

— Houston [1st Dist.] 1994 , no writ ).

H ere, the d i str i ct court ’ s order requires William to pay child sup po r t of $1,350 per month. The order s tates that William ’ s mon thly net resources are $4,529.49 ; that Ri t a ’ s net

re sources are $ 0; and that th e percentage applied to t h e f i r s t $ 4 , 5 2 9

. 4 9 o f W i l liam ’ s ne t resources for c hild s upport is 29.8 percent. See Tex. F a m. Code § 154 .130 (governing findings in child

support order). At the hearing on his petition to mo d ify, W il liam testified that his monthly child

s upport payment should be $850

. O n app eal, William contends that h is chi ld

- support obligation should have b e en se t at $905.90 per month

—his calculation of the presumptive

- guideline amount for an $80,000 annua l salary

. 4 He also cont ends that the evidence of the child ’ s needs “ equals $650 per month at best ” and that the re was “ no evidence ” justifying the distr ic t court ’ s child

support order exceeding the presumpt ive

- guideline amount

.

Con trary to William ’ s con t ention , t he district court’s order of child support is supported by the evidence in the record. It was un dispute d at t he modification h earing t hat Will ia m receives a “ base salary ” of $80,000 and that “ in addition to [his] annual salary, ” he is el igible f or a bonu s “ of 50% ” ( $40,000 ) , pl us commissions “ at a rate of 5%. ” During the hearing , Rita dis cu ssed the needs o f the child, inclu ding golf

- related ex p en s es that are higher

4 William ’ s c alculation includes deductions fo r the California state inc om e tax and Calif orni a state disability insurance

.7

du ring the season and when the child is part icipating in tournaments

. Rita test i fied with ou t contradicting evidence that this after

- school activity requires payment of membership fees for the cl ub whe re the child practices and plays , a n d that she is paying 100 % of the expenses for the

c hild ’ s activities . She stated that the expenses for the c h i ld ’ s golf ranged from $ 200 to $ 800 per month. See Zajac v. Penkava , 924 S.W.2d 405, 40 9 (Tex. App.

— San Anton io 1996, no writ) ( holding that e st i mates of past and future expenses and needs of child are relevant and probative in determining child support ). Rita also testified that she pa ys half the cost o f the child ’ s the rapy , which is $150 per session , and that the child sometimes attends thera py every week and other times less frequently. See id. R ita further testified that she had not made any money b e sides the amount she earned for her first catering event

. The parties’ divorce decree reflects that Ri ta is the s ole managing conservator for t h e child , and h er itemized prop osed support decision , admitted in to evidence without objection, shows that s he n eeded about $ 11,272 per month for both h er and the child’s expenses combined

. See Yarb rough v. Yarbrou gh , 15 1 S.W. 3d 687, 693 (Tex. App.

— W aco 2 0 04, no pet.) (concluding th at trial court had sufficient information, based on mother’s t estimony and list of monthly expenses, from which it could

m ake fair determination of pertinent expenses just ifying child

- sup port o rder) ; S cott v. Younts , 926 S. W.2 d 4 15, 421 (Tex. App.

— Corpus C hristi

- Edinburg 1996, writ denied ) (“The child’s mother is in the best position, as mana g ing conservator, to explain the needs of t he child.”). It was undis p uted at the h earing that Will iam ha s no re gul ar visits with the chil d a nd that Rita has possession of the child all the time.

T he district c ourt ’ s findings of fact and conclusions o f law specified tha t when order ing support in excess of the guide line amount , it consi dered that William was n ot entitled to any periods o f possession of the child:8

T he Court heard evidence of several factors set forth in Section 154.123(b) of the Texas Family Code

— na m ely th e amount of time of possession of and access to the child

— and thus the Court ordered a n amount of child support per mo n th which exceeds the percentage guidel ines of the Texas Family Co de. Additionally , t he dis trict court found that “[t]he prove n needs of the child include the need for
extra

- curricular activities ” and th at “ WILLIA M KLAGES is not entitled to any periods o f possess ion of the child, thus increasing the need for support. ” These factors

— t he needs of the child, the ability of the pare n ts to contribut e to the support of the child, and the amou nt of time of poss ession of and acces s to a child

— are set forth i n th e Family Code as relevant consid erations when a trial cour t is det ermining whether the amount of child support set forth by the g uidelines should be increased or decreased. See Tex. Fam. Code § 154.123 (b) (1), (2), (4) ; In r e V.J.A.O ., No. 05

- 15

- 01534

- CV , 2 017 Tex. App. LEXIS 2049, at *19

- 20 (Tex. App.

— Dallas Mar. 9, 2017 , pet. denied ) (mem. op.) ( rejecting father ’ s contention t hat tria l court abused its discretion by awarding ad ditional child support becau se father ’ s mo nthly resources greatly exceeded mo th e r ’ s and because m other ’ s “ pr imary possession of child means she is already absorbing more of the daily costs associated wit h feeding, sheltering, and rais ing the child ” ); In re H.O ., No. 04

- 14

- 00263

- CV, 2 015 Tex. A pp. LEXIS 5113, at *7 (Tex. App.

— San An to n io May 20, 2015 , no pet. ) (mem. op.) ( citing subsec tion 154.123(b)(4) and noting that “ the trial court set current child

su p port above the amount specifi ed under the child supp ort guidelines because [m oth er] has po ssession of the child one hundred perce nt of the time a nd [father] has no contact with the child ” )

. Moreover, this list of statutory factors is not exhaustive, and t he trial court must consider all relevant factors. See Sanchez v. Sanche z , 915 S.W.2d 99, 103 (Tex . Ap p.
— San Antonio 1996, no wr it ) ; s ee also Tex . Fam. Code § 154.123(b)(17) (providing that trial court “shall consider,” in addition to other listed factor s , “any o ther reason consistent with the best interes t of9

the child, takin g into considerat ion the c ircu mstanc es of the parents”). F inally, to th e extent that William co mplains the d istrict court ’ s fin dings as to the amount of child support lack specifici t y, he failed to request any specific additional or a mended findings. See Tex. R . Civ. P. 298 ( “ Aft er the court files original fi nd i ngs of fact and conclusions of law, any party may file with the clerk of the court a request for specified additional or am e nded findings o r conclusions. ” ) ; In re V.J.A.O ., 201 7 Tex. App. LEXIS 2049, at * 2 1 ; see al so In re Gonzalez , 99 3 S.W.2d 147, 155 (T e x. App.

— S an Ant onio 1999, no pet.) (concl uding that trial court ’ s stated r easons were adequate to satisfy section 154.130 ); Zajac , 924 S.W.2d at 410 (holding that substantial

c ompliance with statutory pre decessor t o section 154.130 sufficed )

.

In sum , be cause this record contains some evidence of a substantive and probative character support ing the modified child

- support or d er , Willi am failed to sho w an abuse of the district court ’ s dis c retion

. See T ran , 48 0 S.W. 3d at 128 ; Coburn , 433 S. W.3d at 823 ; Ze if man , 2 12 S.W.3d at 58 7 ; Echols , 8 5 S.W.3d at 47 7

. We conclude that the district court had legally and factually sufficien t evidence on which to exercise its discre tion when m aking its modified child

- suppo rt order and that i t did not err in the applica ti on of that dis cretio n. See Coburn , 433 S.W.3d at 823 ; Zeifman , 212 S.W.3d at 588 ; Echols , 8 5 S.W.3d at 47 7

- 78

. Accordingly , we overrule William ’ s ap pellate issue.10 CONCLUSIO N We affirm the d istrict cou rt ’ s “ O rder in Suit to Modify Spousal Maintenance an d the Parent

- Ch ild Relationship

. ”

__________________________________________ Gisela D. Triana , J ustice Bef ore Justi ces Go odwin, Triana , and Sm it h Af firmed Filed: June 25, 2021