### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00108- CV

Charles Nor ris, Appellan t

v. Melissa M. Nor ris, Appellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 395 TH JUDICI AL DISTRICT NO. 06- 1317 -F 395, H ONO RAB LE MI CHAEL J ERGINS, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Charles Norris appeals from a district court order incre asing his child-support obliga tions to his ex-wife, appellee Melissa M. Norris. I n four issues, Charles asser ts that the district court abused i t s d i s cr et ion in deter mining that a chang e in circ umstances war rante d modification and in setting the amount of his child-support obliga tion at $885 per month. We will 1 aff irm the district court’s modifica tion order.

BACK GR OUND The marria g e of Charles and Melissa was ended by an ag ree d divorce decr ee signe d

on Aug ust 29, 2006. The decr ee named Melissa sole manag ing conser vator of their only child, M.P., and Charles possessory conser vator. The decr ee provided Charles with possession of M.P. “at any and all times mutually ag ree d to i n ad v an ce by the parties,” and Melissa with possession at all

Given the parties’ common surname, we will identify them by their first names to avoid 1 confusion.other times. I t did not otherwise specify the parties’ visitation rig hts and did not require Charles to

pay Mel i s s a ch i l d support, but made eac h party solely responsible for providing food, clothing, shelter, enter

tainment, transporta tion, and other basic nece ssities for M.P

. wh i l e the child was in that party ’s actua l possession. The decr ee also obliga ted Charles to pay half of M.P.’s unreimburse d medical c osts. On Aug ust 19, 2 0 0 9 , M el i ssa filed a motion to modify in which she reque sted additional child sup p o rt, arr ear ag es for additional support imposed retroa ctively , and attorney ’s fee s. At the hear ing on the motion, Charles appea red solely throug h counsel beca use he was incar cer ated at the time. Melissa pre sented e vidence that she had lost her job in 2008 and had sinc e had to se ll her car s, possessions, and her home in order to make ends meet, while also borrowing money . She testified t hat s he had rec eived approxi mately $140,000 from t h e s al e of her house after deducting
taxes and fee s, but that amount was “dwindling down pretty quick” as she repa id people from whom she had bor

rowe d money . After

selling he r house, acc ording to Me lissa, she and M.P. ha d moved in w ith Me lissa’s mother, and she was now a full-time student pursuing a business deg ree without

a curr ent income. I n addition to her testimony , Melissa introduced a char t of monthly expenses she claimed were attributable to h er ca re o f M.P ., which tot aled $2,475.00 per month. Melissa asked the court to order Char les to pay half of tha

t amount, or $1,237.50 per month, both from that time forwa rd and f or the twe nty -seve n months in which the case had bee n pending

. Melissa also explained the circ umstances under which she had ag ree d not to obliga te Charles to pay child support under the 2006 divorce decr ee. Acc ording to M el i s s a, s h e had been

ear ning approximately $100,000 ann u al l y at the time of their divorce , while Charles had been working at a restaur ant ear ning about seven dollars per hour. She further asser ted that Charles had

2been eng ag ing in “er ratic,” drug -addic ted behavior , that “[m] y child was scar ed,” and that “I wanted him out of the house.”

Melissa further testified that, since the 2006 decr ee wa s s i gn ed, Charles had only limit ed possession of M.P.—i.e., leaving Melissa with the responsibility of fu n d ing M.P.’s basic

nece ssities—and had not seen the child, now thirteen y ear s of ag e, in over two-and- a-ha lf y ear s. She also claimed that Charles had never complied wi t h his obliga tion to pay her half of M.P.’s unreimburse d medical c osts.

Additionally , Melissa prese nted evidenc e that althoug h Charles was curr entl y incar cer ated and had ear

ned limit ed income prior to that time, he had inherited financ ial resour ces from which he could satisfy a ch ild-support obliga tion. Under the divorce decr ee, Charles had
reta ined as his sole separ ate proper t y any rig ht, title, and benef icial interest in and to any trust to which he was a benef

iciary

. Melissa testified t h at afte r Charles’s mother died in 2006, Charles had inherited betwee n $500,000 an d $750,000 that he and his mother had previously held in a joint trust. Melissa claimed that Charles had told her about this inheritanc e, sho we d her bank

s t at em ents, and had her revie w these statements with him when he was incar cer ated. She al s o testified that she did not believe that the trust was still in place beca use she h ad s ee n t rust documentation or statements and had conver sations with Charles’s bank indicating that Charles had

remove d the money

from the trust. Melissa also testified that Charles had well over $500,000 in an Ameritra de acc ount. Her testimony was based on her revie w of his Ameritra de statements shown to her on the day of the hear ing, althoug h the statements themselves wer e not offe red into evidenc e. Melissa explained that she was not sure if Charles had additional resour ces, but she asser ted that Charles’s pare nts had other

3assets such as insurance policies and I RAs. Melissa claimed that she had a trust statement in her car ,

but it also was not offer ed into evidenc e.

Charles’s trial counsel called no witnesses and prese nted no evidenc e on his behalf , al though the attorney did cross-e x amine Melissa reg arding her testimony

. At the concl u s i o n o f

e v id e n c e , th e d istrict court found that application of the statutory child-support perc entag e g uidelin e s would be inappropria te, that depar ture from the statutory g uidelines was in M.P.’s best interest, that Charles had $ 3 , 300 per month in net resour ces, and that Melissa had no net resour ces per month. The district court signe d a final order modify ing the parties’ divorce decr ee to order Charles to pay $885 per month in child support, $9,735 in arr ear ag es based on modified retroa ctive support for the prior ele ven months, and $4,000 in attorney ’s fe es. This appe al followed.

ANALYSIS Charles bring s four issues on appea l. I n h i s fo u rt h i ssue, he arg ues that there was leg ally and fac tually insufficient evidenc e of a materia l and substantial ch an ge in the parties’ circ umstances that would permit the court to modify the divorce decr ee. I n h i s fi rs t three issues, Charles arg ues that the district court abused its discretion in o rd er i n g h i m to pay monthly childsupport of $885 and retroa ctive child support of $9,735 beca use, respe ctively , (1) those amounts

wer e not calc ulated in acc ordanc e with the statutory minimum g uidelines; (2) the district court, he asser ts, improperly considere d Charles’s ag e in calc ulating th e ch i l d s upport; and (3) there is no evidenc e to support the district court’s finding that Charles’s assets p ro d u ce d o r could produce income. 2

I n her brief, Melissa also moves to dismiss Charles’s appea l in its entirety based on what 2 she claims is his failure to comply with the service require ments under the rules of civil or appellate proce dure. We de ny

the motion. 4Stand ard and s cope of review When revie wing a modif i cation of a child-support order , we are mindful that the best interest of the child should be the trial court’s primary consideration. See Tex. Fa m. Code Ann. § 156.402(b) (West 2008); Hollifield v. Hollifield , 925 S.W .2d 153, 155 (Tex. App.—Austin 1996,

no writ). Trial courts have w ide discre tion in deter mining the best interest of the child. Gillespie

v. Gillespie , 644 S.W .2d 449, 451 (Tex. 1982); Hollifield , 925 S.W .2d at 155. Ther efor e, we will
not disturb a trial court’s order modify ing chil d support unless the complaining party can show a clea r abuse of discretion. See W orford v

. Stamper , 801 S.W .2d 108, 109 (Tex. 1990) ; In re J.A.J

. , 283 S.W .3d 495, 497 (Tex. A pp.—Be aumont 2009, no pet.); Gonzalez v. Tippit , 167 S.W .3d 536, 544 (Tex. A

pp.—Austin 2005, no pet.). “The test for abuse of discretion is w hether the trial court acte d without ref

ere nce to any g uiding rules or principles; in other words, wh et h er the act

was arbitra

ry or unrea sonable.” W

orford , 801 S.W .2d at 109. “The mere fac t that a trial judge may decide a matter within his discretionar y authority in a differ ent manner than an appellate judge in a simil ar circ umstance does not de monstrate that an abuse of discretion has occur red.” Downer v. Aquamarine O

perators, Inc. , 701 S.W .2d 238, 242 (Tex. 1985). Under this abuse- of-discr etion standard as applied here , leg al and fac tual sufficie ncy

are not independe nt g rounds of err or, but are rele vant fac tors in assessin g wh ether the trial court abused its discretion. Doyle v. Doyle , 955 S.W .2d 478, 479 (Tex. App.—Austin 1997, no pet.). We eng ag e in a two-prong ed inquiry , determ i n i n g whether (1) the trial court had sufficie nt evidenc e upon which to exercise its discretion; and (2) the trial court err ed in its application of that discretion. Zeifman v. Miche ls , 212 S.W .3d 582, 588 (Tex. A pp.—Austin 2006, pet. denied).

5We apply traditional evidentiar y -suffic iency revie w standards when considering the first question, 3 and then we co n s ider whether the trial court made a decision, based on the evidenc e, that was arbitra ry or unrea sonable. Id

. I n making that deter mination, we view the evidenc e in the light most favor able to the trial court’s decision and indulge ever y leg al presumption in favor of the decision. In re J.D.D. , 242 S.W .3d 916, 920 (Tex. App.—Dallas 2008, pet. denied)

. As long as some evidenc e of a substantive an d probative char acte r exis ts to support the trial court’s order , we will not substitute our judgme nt f or that of the trial c ourt. See E chols v. Olivare

z , 85 S.W .3d 475, 477 (Tex. App.—Austin 2002, no pet.).

Mate rial and s ubs tantial change

We beg in by addre ssing Charles’s fourth issue beca use i t ch al l eng es whether the district court had authority to modify the parties’ orig inal ag ree d decr ee and, thus, logic ally prec edes the other issues. A trial court has the authority to modify an ag ree d child-support obliga tion that differ s from the statutory g uidelines, like that of Charles and Melissa, only if “the circ umstances of t h e ch i l d o r a person aff ecte d by the order have materia lly and substantially chang ed” since the rendition of the prior order of child support. See Tex. Fa m . Code Ann. § 156.401(a- 1)

When conducting a leg al-suff iciency revie w, we must view the evidenc e in the light most 3 favor able t o t h e trial court’s finding s, “cr editing favor able evidenc e if rea sonable jurors could, and disreg arding contra

ry eviden ce unless rea sonable jurors could not.” City of Keller v. W ilson , 168 S.W .3 d 8 0 2 , 8 0 7 (Tex. 2005). Moreove r, we must indulge ever y rea sonable infere nce that would support the trial court’s finding s. Id

. at 822. The ultimate test for leg al sufficie ncy is whether the evidenc e at trial would enable rea sonable and fair- minded people to rea ch the ver d i ct under revie w. See id. at 827. When revie wing the fac tual sufficie ncy of the evide n ce , we consider and we i gh al l o f the evidenc e in the rec ord, and we should set aside the finding only if the evidenc e supporting the finding is so wea k as t o be clearly wro n g and manifestly unjust. See Cain v. Bain , 709 S.W .2d 175, 176 (Tex. 1986) (per curia m). We must not mere ly substitut e our judgme nt for that of the fa ctfinder

. Golden Eagle Arc hery, I nc. v. J ackson , 116 S.W .3d 757, 761 (Tex. 2003). 6(West Supp. 2012). The party seeking modification has the burden to e stablish these elements by 4

a preponde ranc e of the evi d en ce . See Zeifman , 212 S.W .3d at 589 (addr essing modification of

conser vatorship). Charles arg ues that the evide n ce is leg ally and fac tually insufficient to support the district court’s implied finding that the requisite materia l and substantial chang e had occur red. He sug g ests that beca

use the o ri ginal decr ee did not specify the parties’ financ ial status at the time, evidenc e of Melissa’s curr ent financ ial circ umstances did not suffice t o es t ablish a materia l

an d s u b s tantial chang e. He also emphasizes that Melissa testified that she curr ently has s o m e money lef

t o v er fr om the sale of her home and that, in his view, she failed to prese nt evidenc e that she was unable to obtain employ ment. To the extent that Charles is contending that Melissa was cate g orica lly require d to show that she has no money , was unable to obtain employ ment, or that the decr ee had to include specific baseline financ ial information reg arding the parties in order to show

a signific an t an d materia l chang e in circ umstances, we reje ct those premises. Rather, the proper fo cu s is whether the evidenc e Melissa provided conce rning her historical and curr ent financ ial circ umstances, that of Charles, and that of their child wa s sufficie nt to enable the district court to examine and compar e the circ umstances at the time of the i n i t i al o rder with the circ umstances exis ting at the time of modification i n o rder to deter mine whether there had been a materia l and

The full text of section 156.401(a- 1) is— 4 I f the parties ag ree to an order under which the amount of child support differ s from the amount that would be awa rded in a ccor dance with the child support g uidelines, the court may modify the order only if the circ umstances of the child or a person aff ecte d by the order have materia lly and substantially chang ed since the date of the order ’s re ndition. Tex. Fam. Code Ann. § 156.401( a-1) (West Supp. 2012). 7substantial chang e. See In re C .C.J. , 244 S.W .3d 911, 917-18 (Tex

. Ap p . — Da l l as 2 0 08, no pet.)

(citing In re J.R.D. , 169 S.W .3d 740, 743-44 (Tex. App.—Au s t i n 2 0 0 5 , pet. denied) ). And she did so here. Reg arding historical evidenc e of he r financial circumstances, Melissa testified that
at the time of the divorce sh e wa s ear ning approximately $100,000 per y ear and was living in her own home with no mortg ag e pay ment, though she was require d to pay proper ty taxes. As to her

curr ent financial status, she t estified that she l ost her job in 2008 and remained unemploy ed. She testified t hat s he had sold her cars, her home, and other possessions, while also borrowing money from others. Melissa also testified that since the divorce , Charles had become the sole benef iciary
to a trust worth betwee n $500,000 and $750,000. She also testified to the incre ased financ ial needs of M.P., which included cer tain new costs, such as aca demic fee s fo r coll eg e entra nce exams. Fur ther, the ag ree d decr ee of divorce provided that eac h party would provide for M.P.’s needs while he was in that pare nt’s actua l posses sion. Whil e the decr ee contemplated a share d arr ang ement, Charles was incar cer ated afte r the divorce decr ee was signe d and, conseque ntly , Charles has rar ely , if ever , had possession of M.P. C h ar l es d id not dispute any of Melissa’s testimony reg arding the chang ed cir cumstance s surrounding the par ties and their c hild. This evidenc e is both leg ally and fac tually sufficie nt evidenc e to support a finding that circ umstances had chang ed substantia ll y a n d ma te r ia ll y s in c e the rendition of the orig inal decr ee. As such, the district court did not abuse its discreti o n i n d et ermini ng that modification was

war rante d. We overrule Charles’s f ourth issue.

8The m odif ication Having deter

mined that modification was authorized under the family code, we turn to Charles’s rema ining issues, which challeng e the portions of the modification order requiring him
to pay future child support in the amount of $8 8 5 p er m o n t h and arr ear ag es of $9,735 based on retroa ctive application of that monthly amount. All three issues conce rn the district court’s decision
to deviate from the statutory g uidelines established by the L eg islature for the awa rd of child support. See Tex. Fam. Code Ann. § 154.122 ( West 2008).

Under these g uidelines, the application of which is rebuttably presumed to be in the child’s best interest, see id. § 154.122(a) , trial courts deter mine the appropr iate level of s upport based
on net re source s available , which include the following : (1) 1 0 0 p er ce n t o f all wag e and salary income and other comp en s at i o n fo r persona l service s (including commissions, overtime pay , tips, and bonuses); (2) interest, dividends, and r oy alty income; (3) self-e mploy

ment income; (4) net renta l income (d ef i n ed as rent afte r deducting opera ting expenses and mortg ag e pay

ments, but not including nonca sh items suc h as depr ecia tion); and (5) all other income actua lly being rec eived, including sever ance pay , retire ment benef its, pensions, trust inco me, annuities, capital g ains, social secur ity benef its other than s upplemental secur ity income, unemploy ment benef

its, disability and worke rs’ compensa tion benef its, interest i n come from notes reg ardle ss of the source , g ifts and prizes, spousal maintenanc e, and alimony

.
Id

. § 154.062(b) (West Supp. 2012). Courts must require parties to provide this information to the 5
court. Id . § 154.063 (West 2008).

I n 2011, the L eg islature made cer tain revisions to t h e statute that are not implicated by 5 this appeal. We cite to the most cur rent ve rsion of the statute f or conve nience

. 9I n the absenc e of evidenc e of wag e and salary income, courts must presum e

that the party has wag es or salary equal to the fede ral minimum wag e for a forty -hour we ek. Id

. § 154.068 (West 2008); Monroy v. Mo nroy , No. 03-10-00275- CV, 2011 WL 3890401, at *5 (Tex. App.—Austin Aug

. 31, 2011, pet. denied) (mem. op.). I ncar cer ation alone does not rebut the minimum -wa g e presumption, and t h er e is no leg al presumption that an inmate has

no assets. Monr o

y , 2011 WL 3890401, at *5 (citing In re M.M. , 980 S.W .2d 699, 700-01 (Tex. App.—San Antonio 1998, no pet.)). Courts consider these resour ces, then ded u ct

cer tain expenses to deter

mine the n et m o n thly resour ces available

. See Tex. Fam. Code Ann. §§ 154.061-.062 (West 2008 & Supp. 2012). Next, the courts apply an assig ned perc entag e—her e, 20%—to the first $7,500 of those ne t monthly resour ces. See id. (West Supp. 2012). The family code allows courts to deviate from the g uidelines in situations wher e its application would be “unjust” or “inappr opriate” under the circ umstances. See id

. § 154.122(b). I n deter mining whether a

pplication of the guidelines would be unjus t and inappropriate, courts must consider sever al issues, including “any financ ial resour ces available for the support of the child,” as well as the “amount of the oblige e’s net resour ces including the ear ning potential of the oblige e if the
actua l income of the oblige e is signific antly less than what the oblige e could ear n beca use the oblige e is intentionally unemploy ed or undere mploy ed and including an incre ase or decr ease in the income

o f the oblige e or income that may be attributed to the proper ty or assets of the oblige e . . . . ” Id

. § 154.123(b) (West 20 0 8 ). T h e court may also consider “any other rea son consistent with the best intere s t o f t he child, taking into consideration the circ umstances of the parties.” Id

. § 154.123(b)( 17). I f a trial court deter mines that application of the g uidelines is not appropr iate, the
court must include in its order modify ing child support cer tain statutorily require d finding s. See id. § 154.130(b) ( West S upp. 2012).
10The district c ourt made the following finding s conce rning the basis for its a war d of $885 per month in child support:

1. The application of the perc entag e g uidelines in this c ase would be unjust or inappropria te. 2. The ne t resourc es of Charle s Perry Norris pe r month are $3300.00. 3. The ne t resourc es of Me lissa M. Norris per month are $0. 4. The perc entag e applied to the first $7,500 of Charles Perry Norris ’s n et [m onthly ] resource s for c hild support is 20 percent. 5. The specific rea sons that the amount of support per month o rd ere d by the Court varie s from the amount compu t ed b y apply ing the perc entag e g uidelines of section 154.125 of the Texas Family Code are : the Court found this varia tion to be in the best interest of the child based upon the anticipated resour ces of Charles Perry Norris, who is deter mined to be capa

ble of ear ning minimum wag e in addition to his net resourc es.

See id. T h e import of the district court’s finding s is that it awa rded monthly child support repr esenting (1) the application of the statutorily -pre scribed perc entag e of 20% to the $3,300 it found
to be Charles’s n et monthly resour ces, y ielding a monthly child-support pay ment of $660; plus (2) 20% of $1,125, a fig ure roug hly equal to the afte r-tax monthly ear nings of a person ear

ning the fede ra l m i n i m u m wag e ($7.25 per hour) for a forty -hour wee k, taking the standard deduction and claiming one persona l exemption, y ielding $225, for a total of $885 per month. Charles’s first 6 two issues challeng e the latter component of the awa

rd, and his third issue cha lleng es the for mer.

The district court noted that the standard minimum wag e child support for one child was, 6 at that time, $225. This figur e is in line with the tax cha rts promulg ated by the attorney g ener al to assist in calc ulating an obligor ’s net income for child support purposes. See Tex. Fam. Code Ann. § 154.061(b) (West 2012). The rele vant tax char t is printed in the annotated statutes and prior y ear s’ char ts are also available on the attorney g ener al’s website. See Offic e of the Attorney Ge n era l 2011 Tax Charts, https:/ /www.oag .state.tx

. u s / cs /tax char ts/2011tax char

t.pdf (last visited Fe b. 22, 2013). 11Earni ng capacity Charles’s first two issues are premised on the view that the district court deter mined that he was capa

ble of ear ning more than minimum wag e, deter mined his monthly net resour ces of $3,300 based on his e arning capa city , and deviated from the g uidelines on that basis. This vie w is predic ated on oral statements that the district court made during the modification hear ing. I n his first issue, Charles fix es upon a statement by the district court to the eff ect that Charles “should be able to

ear n, at least, $4,000 a month on top of the minimum wag e job using the assets available for him and any skills that might be available work bey ond minimum wag e.” Charles perc eives this stateme nt

as t an t amount to a finding by the di strict court that he was intentionally unemploy ed and that this is why it deviated from the g uidelines. Ba sed on that premise, he arg ues that the district court abused its discretion in deviating from the g uidelines bec ause the evidenc e showed Charles wa s curr ently incar cer ated and had only ever been employ ed at a mi nimum-wag e o r low-wa g e job, and because there was no evidenc e that he had an y education, skills, or training to assist him in obtaining highe r pay ing employ

ment such that he could be considere d to be intentionally unem ploy ed or undere mploy ed. See id

. § 154.123(b). Simi larly , in his second issue, Charles complains of an oral
statement by the dist ri ct co urt that, “[G]i ven his ag e, [C harle s] should be able to do better than a minim u m wag e job,” and urg es that the court improperly used his ag e to deter mine his ear

ning potential or ca

pacity

. Whil e Charles takes issue with cer tain o ra l statements made by the district court and seems to believe that the $3,300 net resour ces fig ure found by th e co u rt i s b as ed on his

ear ning potential in light of his ag e, only the court’s findin gs o f fac t and conclusions of law are materia l to our revie w, and they state otherwise. See In re W .E.R. , 669 S.W .2d 716, 716 (Tex. 1984) (per curia m). What the di strict court found in reg ard to Charles’s earning potential, as previously
12indicated, was that Charles “is deter mined to be capa

ble of ear ning minimum wag e”—a fa ct that Charles does not dispute and which the family code presumes in the absenc e of other evidenc e,

see Tex. Fa

m. Code Ann. § 154.068—and that the deviation fr o m the g uidelines was war rante d beca use Charles could ear

n these amounts “ in addition to his net resour ces,” nece ssarily assets other than a salary beca

use he had no job during his in ca rc er at ion. The district court made no other fi nding rela ting to ear

ning potential, intentional unemploy ment, or intentional undere mploy ment in deviating from the g uideli n es . An d g iven the district court’s discretion to consider “any other

rea son consistent with the best interests of the child, taking into considera tion the circ umstances of the pare nts,” see id. § 154.123(b)( 17), and on this rec ord, we cannot say that it abused its discretion in deviating from the g uidelines to awa rd additional monthly child support predic ated on Charles’s capa bility of earning minimum wag e. Acc ording ly , we overrule Charles’s first and second issues on appea l.

Net mon thly resources I n h i s third issue, Charles challeng es the district court’s finding that he has net

m onthly resour ces of $3,300. Charles arg ues that there is no evidenc e or insufficient evidenc e to support any deter

mination reg arding the nature , value, and liquidit y of any assets he may have had in determining his net resourc es and e stablishing his child-support oblig ation.

S ection 154.062 of the family code instructs the district court to calcu l at e n et

resour ces for the purpose of deter mining child-support liability

. Id

. § 154.062. There must be some

ev i d en ce o f a substantive and probative char acte r of net resour ces in order for this duty to b e discharg ed. Newberry v. Bohn-Newberry , 146 S.W .3d 233, 236 (Tex. App.—Houston [14t h Dist.] 2004, no pet.). When deter mining the net resour ces available for child support, the court may assig n

13a rea sonable amount of deeme d income attributable to assets that do not curr ently produce income.

Tex. Fam. Code Ann. § 154.067(a) (West 2008). The court m ay also assig n a reasonable amount of dee med income to income- producing assets that a pa rty has voluntarily

transfe rre d or on which

ear nings ha ve intentionally

been r educe d. Id . § 154.067(b). Her e, Melissa testified that, afte r the death of his mother, Charles inherited a trust worth betwee n $500,000 and $750,000. She also testified that Charles closed his acc ount w ith the bank that administered the trust. She further testified that she viewed statements indicating that he had over $500,000 in an Amer itrade a ccount. Charles urg es that no trust or Ameritra de statements wer e introduced into e vidence to support these amounts, and that no r epre sentatives fr om a ny bank testified to support Melissa’s

asser tions. He further complains that Melissa did not specify the date of any statements she saw, or

as to char acte r of the acc ount—whether it was comprised of stocks, bonds, o r o t h er fu nds. He further contends that there was no testimony reg arding the liquidit y of the Ameritra de acc ount, and no testimony

that the alleg ed Amer itrade a ccount be longe d solely to Charles. Whil e Charles depicts Melissa’s testimony as “nothing more than mere specula tion” about hi s assets and thus no evidenc e to support the di strict court’s find i n gs , we conclude inst ead that it was leg ally sufficie nt and that his curr ent complaints would have been more appropr iate topics for c ross-examination at trial. Melissa’s testimony about the asse ts was not te sted in c rossexamination, nor was it controve rted with financ ial rec ords or an y o t h er evidenc e. Melissa’s

7
uncontrove rted testimony was some evidenc e of a substantive and probative char acte r of Charles’s

n et resources. Acc ording ly , we conclude that there was leg ally and fac tually sufficie nt evi d en ce
I ndeed, it appea

rs from tr i al co u n sel’s statements to the court that, in fac t, he had the 7 Ameritra de statements in his possession and was the person who provided them to Melissa in advanc e of he r testimony

. 14to support the district court’s order and thus, the district court did n o t ab u s e i t s d iscretion. See

Newberry , 146 S.W .3d at 236 (uncontrove rted testimony that appellant e a r n e d $ 1 5 0 , 0 0 0 p e r y e a

r w as

some evide n ce to support child-support awa rd); Monroy , 2011 WL 3890401, at *6 (cour t did
not abuse discretion in basing child-support awa rd on only evidenc e i n t h e rec ord—appe llee’s undisputed testimony reg arding appellant’ s income and proce eds from joint rea l estate sale); Lozano

v. Lozano , No. 13-08-00536- CV, 2009 WL 4882816, at *9 (Tex. App.—Corpus Christi Dec

. 17, 2009, no pet.) (mem. op.) (cour t did not abuse discretion in rely ing on appellee ’s un co n t ro verte d testimony reg arding appellant’ s income to deter mine child-support awa

rd); see also In re N.T. , 3 3 5 S

. W.3d 660, 666-67 (Tex. App.—El Paso 2011, no pet.) (cour t did not abuse discretion i n rely ing o n a

p p e ll e e ’ s te s ti mony conce rning appellant’ s ear nings in deter

mining child-support despite appellant’ s controver

ting e vidence ). Charles also complains of the district court’s specific conclusion that his assets provided him with a net monthly i ncome of $3,300. The uncontrove rted evidenc e indicated that Charles had assets in excess of $500,000. Viewe d in the light most favor able to the trial court’s decision, the court’s deter mination that those assets could produce $3,300 per month was n o t arbitra ry or unrea sonable. Be cause some evidenc e of a substantive and probative char acte r supports the trial court’s decision, Charles has failed to show reve rsible err or. Acc ording ly , we overr ule Charles’s third issue.

CONCLUSION

Having overr u l ed eac h of C harle s’s issues on appea l, we affirm the district court’s modification order

.

15__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Pury ear , Pemberton and F ield Affir med Filed: F ebrua

ry 27, 2013

16