Cicily Joseph v. Sunny Joseph

Opinion issued May 3, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-11-01096-CV

———————————

cicily joseph , Appellant

V.

sunny T. joseph , Appellee

On Appeal from the 310th District Court

Harris County, Texas

Trial Court Case No. 2003-13095

MEMORANDUM OPINION

In

this suit affecting the parent-child relationship, Cicily Joseph moved to

modify Sunny Joseph’s child support, alleging that he fraudulently

misrepresented his income during mediation of the child support issue and consequently

should be ordered to pay additional child support. After the trial court

granted a directed verdict against her, Cicily appealed. In eight issues, she

contends that the trial court erred by (1) instructing a verdict, (2) excluding

certain evidence, (3) failing to award her interest on “underpaid” child

support, (4) failing to award her attorney’s fees, and (5) failing to prepare

findings of fact and conclusions of law.

We affirm the trial court’s

judgment.

Background

Because the background of

this case is well known to the parties, we do not recite it here in detail; we

reference only those facts necessary to the disposition of this appeal. When Sunny

and Cicily Joseph divorced, they had three children under the age of eighteen. Based

on Sunny’s representations about his income, the parties agreed Sunny would pay

$550 each month in child support. Cicily later learned, however, that the Texas

Comptroller was pursuing Sunny for unreported earnings from a chain of

convenience stores. Alleging that Sunny had fraudulently misrepresented his

income, Cicily sought to increase Sunny’s child support obligation. Sunny

denied having unreported income, and the parties proceeded to a bench trial on

the issue. At the close of Cicily’s evidence, Sunny moved for and was granted a directed verdict on the ground that

Cicily failed to present sufficient evidence of a material and substantial

change in Sunny’s financial circumstances.

Directed Verdict

In her fifth

issue, Cicily asserts that the trial court erred by directing a verdict against

her. The trial court could direct a verdict if no evidence of probative force

raised a fact issue on the material questions in Cicily’s modification suit. See City of Keller v. Wilson , 168 S.W.3d

802, 823 (Tex. 2005) (holding that standard of review for legal sufficiency

challenges applies to review of directed verdict). We view the evidence in the

light most favorable to Cicily, as the party suffering an adverse judgment. See S.V. v. R.V. , 933 S.W.2d 1, 8 (Tex.

1996). The directed verdict for Sunny was proper if (1) Cicily failed to

present evidence raising a fact issue essential to her right of recovery or (2)

Cicily admitted or the evidence conclusively established a defense to her cause

of action. See Prudential Ins. Co. of Am.

v. Fin. Review Servs., Inc. , 29 S.W.3d 74, 77 (Tex. 2000).

At the commencement of trial,

Cicily acknowledged that a single issue was before the court: whether Sunny

gave false testimony during the initial divorce proceedings that justified

modification of his child support obligations. A court may modify a child

support order “if the circumstances of the child or a person affected by the

order have materially and substantially changed since . . . the date of the

order’s rendition.” Tex. Fam. Code Ann .

§ 156.401(a)(1) (A) (West 2010). To determine whether modification of child

support is warranted, the court must examine and compare the circumstances of the

parents and any minor children at the time of the initial order with the

circumstances existing at the time of trial in the modification suit. In re D.S. , 76 S.W.3d 512, 520 (Tex.

App.—Houston [14th Dist.] 2002, no pet.). The record should contain both historical

and current evidence of the relevant person’s financial circumstances. London v. London , 192 S.W.3d 6, 15 (Tex.

App.—Houston [14th Dist.] 2005, pet. denied).

Reviewing this record in the light

most favorable to Cicily, we conclude that she failed to present legally

sufficient evidence that Sunny misrepresented his income or that his financial

circumstances had improved. Two witnesses testified at trial: Sunny and his son

Richard. Although the record does not contain any evidence of the amount of

Sunny’s income at the time the parties’ agreed to $550 in child support, Sunny

explained that that amount was all he could afford. In the two years following

the initial child-support determination, Sunny earned less than $30,000 working

in real estate and as an employee for a chain of convenience stores. The next

year, however, Sunny injured his knee and stopped working; he remained

unemployed at the time of trial. Sunny denied having any ownership interest in

the chain of convenience stores for which he worked and denied being entitled

to any greater income than he reported on his tax returns. [1]

Richard

worked in one or more of the same convenience stores. With respect to the owner

of the stores, Richard testified that it “could have been my dad, this guy

named Beno or Benew, a guy named Michael, my step mom’s brother, and brothers

actually, I think. But I know my dad had a percentage in it.” Despite being

confident that Sunny had some ownership interest in the convenience stores and

received a salary, Richard confessed to not having personal knowledge of

Sunny’s income at the time of trial. Through Richard’s testimony, Cicily

introduced reports of the convenience stores’ sales. But, like Richard’s

testimony, the reports are not evidence of any amounts Sunny earned. Thus, on

this record, we hold that the trial court did not err in directing a verdict

against Cicily in her modification suit.

We overrule

Cicily’s fifth issue, as well as her first, second, fourth, and eighth issues raising

other complaints about the directed verdict. Moreover, because we have held

that the trial court correctly determined Cicily could not prevail in her

modification suit, we also hold that trial court did not err in failing to

award Cicily attorney’s fees and overrule her seventh issue.

Findings of Fact and Conclusions of

Law

In her

sixth issue, Cicily complains that the trial court failed to file findings of

fact and conclusions of law. In a case tried without a jury, any party may

request, within twenty days after the judgment is signed, that the trial court

prepare findings of fact and conclusions of law. Tex. R. Civ. P. 296. Cicily requested findings of fact and

conclusions of law nine days before the trial court signed its judgment, making

her request premature. Rule 306c provides that premature requests for findings

of fact and conclusions of law shall be deemed filed on the date of, but

subsequent to, the judgment. See Tex. R. Civ. P. 306c; Echols v. Echols , 900 S.W.2d 160, 161

(Tex. App.—Beaumont 1995, writ denied). Cicily, however, also prematurely

notified the trial court that its findings and conclusions were past due —i.e., she filed her notice of past due findings and

conclusions before the expiration of twenty days from the date of the

judgment. See Tex. R. Civ. P. 297 . Rule 306c does not apply to a

prematurely filed notice of past due findings of fact and conclusions of law. See Tex.

R. Civ. P . 306c (referencing only motions for new trial and requests for

findings of fact and conclusions of law); see

also Echols , 900 S.W.2d at 161 . “[A] factually incorrect, premature

reminder does not serve the purpose for the notice.” Gorski v. Welch , 993 S.W.2d 298, 302 (Tex. App.—San Antonio 1999,

pet. denied). The record does not indicate that Cicily otherwise timely brought

the matter to the trial court’s attention. Consequently, Cicily waived her

complaint regarding the trial court’s failure to file findings of fact and

conclusions of law. [2]

We overrule

Cicily’s sixth issue.

Conclusion

Having determined that the

trial court did not commit error or that error, if any, has not been preserved

for our review, we affirm the trial court’s judgment.

Harvey

Brown

Justice

Panel

consists of Chief Justice Radack and Justices Higley and Brown.

[1]

As her third issue presented,

Cicily separately states a complaint that the trial court made “erroneous

evidentiary rulings [that] allowed [Sunny] to evade the truth.” The only

specific reference to an evidentiary ruling in the argument portions of Cicily’s

brief, however, appears in that section of her brief addressing the sufficiency

of the evidence. There, Cicily cites to a page of the record on which the trial

court sustained Sunny’s hearsay objection to a letter from the Texas

Comptroller, but she has not presented any argument or authority to support her

claim that the trial court erred in its ruling. Cicily’s evidentiary-rulings

complaint is therefore waived for inadequate briefing. See Tex. R. App. P .

38.1(f).

[2]

Even had Cicily preserved this

complaint for our review, we would hold that any error in the trial court’s

failure to issue findings of fact and conclusions of law is not reversible

error. Although “harm to the complaining party is presumed unless the

contrary appears on the face of the record,” a trial court’s “failure to make

findings is not harmful error if ‘the record before the appellate court

affirmatively shows that the complaining party suffered no injury.’” Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996)

(quoting Cherne Indus. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989) ); Las Vegas Pecan & Cattle

Co. v. Zavala Cnty., 682 S.W.2d 254, 256

(Tex. 1984) . Here, Sunny moved for directed verdict on a single ground:

Cicily’s failure to present legally sufficient evidence of a material and

substantial change in Sunny’s financial circumstances. The record thus overcomes

the presumption of harm by making clear the basis for the trial court’s directed

verdict. Cicily has not explained how she was otherwise prevented from properly

presenting her case on appeal. See Tex. R. App. P. 44.1.