William Lavan Graves, III v. Amy Katherine Graves

Affirmed in Part, Reversed in Part, and Rendered in Part and Opinion filed
April 16, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00762-CV

WILLIAM LAVAN GRAVES, III, Appellant
V.

AMY KATHERINE GRAVES, Appellee

On Appeal from the 261st District Court
Travis County, Texas
Trial Court Cause No. D-1-FM-17-004519

OPINION

Appellant William Lavan Graves, III (“William”) appeals the trial court’s
final divorce decree terminating his marital union to appellee Amy Katherine
Graves (“Amy”). In three issues, William argues the trial court abused its
discretion when it (1) deviated from the standard possession order; (2) deviated
from the child support guidelines; and (3) confirmed $61,625.00 in child-support
arrearages. We reverse in part the trial court’s determination of William’s child-
support arrearage totaling $61,625.00 for the period between July 20, 2017, and
January 1, 2020, and we render judgment in part that the arrearage is $52,625.00.
We affirm the remainder of the judgment.

I. BACKGROUND1

William and Amy married in 2001 and have two children. On July 20, 2017,
Amy filed for divorce against William, and William filed a counterpetition for
divorce.

On June 22, 2022, trial began, and Amy and William testified. William
requested the trial court to make findings of fact and conclusions of law. On July
18, 2022, the trial court signed a final decree of divorce and subsequently issued
findings of facts and conclusions of law.

As to the parties’ possession of their two minor children, the trial court
entered an order that deviated from the standard possession order by providing
each parent with two uninterrupted weeks of possession during the summer
months, instead of thirty days of possession to be taken in one period or in two
periods of at least seven days each. See Tex. Fam. Code Ann. § 153.312(b)(2)(A).
The trial court also found that William’s net resources were $9,200.00 per month
and awarded Amy $2,125.00 in child support per month. Finally, the trial court
confirmed William’s arrearage of retroactive child support at $61,625.00 from the
date of the filing of Amy’s petition until January 1, 2020. This appeal followed.

II. STANDARD OF REVIEW

We review a trial court’s ruling on possession, child support, and
confirmation of arrearages for an abuse of discretion. See Iliff v. Iliff, 339 S.W.3d
1
This case is before this court on transfer from the Third Court of Appeals in Austin,
Texas, pursuant to a docket equalization order issued by the Supreme Court of Texas. See Tex.
Gov’t Code. Ann. § 73.001.

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74, 78 (Tex. 2011); In re Roisman, 651 S.W.3d 419, 440 (Tex. App.—Houston [1st
Dist.] 2022, no pet.); Iliff v. Iliff, 339 S.W.3d 126, 133 (Tex. App.—Austin 2009),
aff’d, 339 S.W.3d 74 (Tex. 2011). A trial court abuses its discretion when it rules
without reference to guiding rules and principles or when its decision is
unreasonable or arbitrary. Transcor Astra Grp. S.A. v. Petrobras Am., Inc., 650
S.W.3d 462, 482 (Tex. 2022).

In this context, the abuse-of-discretion standard overlaps with traditional
standards for reviewing the sufficiency of the evidence. Zeifman v. Michels, 212
S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied). Consequently, the legal
and factual sufficiency of the evidence are not independent grounds of error but are
relevant factors in assessing whether the trial court abused its discretion. A.S. v.
Texas Dep’t of Fam. & Protective Servs., 665 S.W.3d 786, 795 (Tex. App.—
Austin 2023, no pet.). The reviewing court determines first “whether the trial court
had sufficient information on which to exercise its discretion and, if so, whether
the trial court erred in its application of discretion.” Id.

A no-evidence challenge is a challenge to the legal sufficiency of the
evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 809–11 (Tex. 2005).
Evidence is legally sufficient if, viewing all the evidence in the light most
favorable to the fact-finding and considering undisputed contrary evidence, a
reasonable factfinder could form a firm belief or conviction that the finding was
true. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). In conducting a legal-
sufficiency review, the reviewing court cannot ignore undisputed evidence
contrary to the finding, but it must otherwise assume the factfinder resolved
disputed facts in favor of the finding. Id. at 630–31.

III. POSSESSION ORDER

In his first issue, William argues the trial court abused its discretion when it
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entered a possession order that deviated from the standard possession order in the
Family Code. William advances two arguments in support of this assertion: (1) the
evidence was insufficient to show that a deviation from the standard possession
order was in the children’s best interest; and (2) the trial court’s findings of fact
and conclusions of law do not include an affirmative finding that deviating from
the standard possession order was in the children’s best interest.

A. APPLICABLE LAW

“The best interest of the child shall always be the primary consideration of
the court in determining the issues of conservatorship and possession of and access
to the child.” Tex. Fam. Code Ann. § 153.002. In cases where parents are
appointed as joint-managing conservators, the Family Code provides a standard
possession order (“SPO”) to allocate the child’s time between the parties. See id.
§§ 153.312, 153.313, 153.316, 153.3171. There is a rebuttable presumption that the
SPO in the Family Code is in the best interest of the child. Id. § 153.252(2).

In deviating from the SPO, the trial court may consider “(1) the age,
developmental status, circumstances, needs, and best interest of the child; (2) the
circumstances of the managing conservator and of the parent named as a
possessory conservator; and (3) any other relevant factor.” Id. § 153.256. “In all
cases in which possession . . . is contested and the possession . . . varies from the
standard possession order, . . . on request by a party, the court shall state in writing
the specific reasons for the variance from the standard order.” Id. 153.258(a).

B. ANALYSIS

Here, William requested findings of fact and conclusions of law in relevant
part under Texas Rule of Civil Procedure 296. See Tex. R. Civ. P. 296 (referencing
cases tried “without a jury”); see, e.g., Filla v. Filla, No. 03-14-00502-CV, 2016

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WL 4177236, at *2–3 (Tex. App.—Austin Aug. 5, 2016, pet. denied) (mem. op.)
(“[W]e conclude that the trial court erred in failing to file findings and conclusions
pursuant to rule 296 regarding its ruling on the parties’ possession of and access to
M.F.”). Pursuant to William’s request, the trial court did file findings of fact and
conclusions of law, stating that William’s “periods of possession comply with the
[SPO] with a deviation as authorized by discretion of the court . . . .” The trial
court, however, did not include in its findings the specific reasons for the deviation
or specifically state that the deviation was in the children’s best interest. See Tex.
Fam. Code Ann. § 153.258(a).

On appeal, William argues that the trial court was required to make an
affirmative finding that the deviation was in the children’s best interest. However,
we conclude that William did not preserve this argument for our review because he
did not file a request for additional findings of fact and conclusions of law. See
Tex. R. App. P. 33.1(a); Tex. R. Civ. P. 298; see, e.g., Villalpando v. Villalpando,
480 S.W.3d 801, 810 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (“The
failure to request amended or additional findings or conclusions waives the right to
complain on appeal about the trial court’s failure to make the omitted findings or
conclusions.”); Smith v. Abbott, 311 S.W.3d 62, 73 (Tex. App.—Austin 2010, pet.
denied) (“The district court filed its original findings and conclusions [and the]
appellants did not file a request for additional or amended findings and
conclusions . . . . Consequently, they did not preserve their complaint.”); see also,
e.g., Travis Settlement Home-Owners’ Ass’n v. 71 Warehouse, LLC, No. 03-23-
00108-CV, 2024 WL 726251, at *5 (Tex. App.—Austin Feb. 22, 2024, no pet. h.)
(mem. op.) (“Failure to request additional findings waives the right to complain on
appeal about a presumed finding.”); Goodfellow v. Goodfellow, No. 03-01-00633-
CV, 2002 WL 31769028, at *7 (Tex. App.—Austin Dec. 12, 2002, no pet.) (mem.

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op.) (concluding that appellant “cannot be heard to complain on appeal that the
findings and conclusions are incomplete” because appellant did not make a timely
request for additional findings and conclusions).

Nevertheless, even if the issue had been preserved, a failure to file findings
does not require reversal if the record affirmatively demonstrates that the
requesting party suffered no harm from the absence of the finding. Tenery v.
Tenery, 932 S.W.2d 29, 30 (Tex. 1996); Cherne Indus., Inc. v. Magallanes, 763
S.W.2d 768, 772 (Tex. 1989); Filla, 2016 WL 4177236, at *3. The general rule is
that an appellant has been harmed if, under the circumstances of the case, he is
forced to guess the reasons why the trial court ruled against him and therefore is
prevented from properly presenting a case to the appellate court. Tenery, 932
S.W.2d at 30; Filla, 2016 WL 4177236, at *3.

In this case, Amy requested a deviation from the SPO on the sole basis that
the requested summer-possession schedule was the schedule the parties previously
used and agreed to for the five years since the divorce was filed. Amy testified that
this schedule is what the girls wanted, and William acknowledged this assertion by
Amy. At the end of trial, the trial court informed the parties that it was aware of the
request for a deviation from the SPO. On appeal, William states that Amy’s “only
argument that such [deviation] is in the best interest of the children was that such
deviation is what the parties had done since their separation.” William then argues,
without citation to authority, that this argument “does not meet the stringent best
interest standard, nor does it even sufficiently make the argument that the
expanded standard possession would negatively impact the routine or stability of
the children.” See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and
concise argument for the contentions made, with appropriate citations to authorities
and to the record.”).

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Based on this record, William has not shown that he had to guess the trial
court’s reasoning and that he was prevented from properly presenting his case on
appeal. See Tenery, 932 S.W.2d at 30; see, e.g., Filla, 2016 WL 4177236, at *3;
Cobb v. Cobb, No. 03-14-00325-CV, 2016 WL 3136886, at *4 (Tex. App.—
Austin June 3, 2016, pet. denied) (mem. op.). We thus conclude the record
affirmatively demonstrates that William suffered no harm from the absence of the
finding. See Tenery, 932 S.W.2d at 30; see, e.g., Filla, 2016 WL 4177236, at *3.
Finally, the deviation here would not constitute an abuse of discretion under the
facts of this case. See, e.g., Randle v. Randle, 700 S.W.2d 314, 317 (Tex. App.—
Houston [1st Dist.] 1985, no writ) (“[T]he trial judge could reasonably have found
that a modification allowing a stable and continuing routine for the child would be
in the child’s best interests.”).

We overrule William’s first issue.

IV. CHILD SUPPORT

In his second issue, William argues the trial court abused its discretion when
it deviated from the child support guidelines and ordered him to pay the maximum
standard child support despite insufficient evidence justifying the deviation.

A. APPLICABLE LAW

The trial court is required to calculate a parent’s net resources for the
purpose of determining child-support liability per the statutory guidelines. Tex.
Fam. Code Ann. §§ 154.062(a), 154.125. Whenever feasible, this requires
computing gross income on an annual basis and then recalculating to determine
average monthly gross income. Id. § 154.061(a).

“Net resources” includes “interest [and] dividends” but not a “return of
principal or capital.” Id. § 154.062(b), (c); Harrison v. Harrison, No. 01-11-00639-

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CV, 2013 WL 485787, at *3 n.1 (Tex. App.—Houston [1st Dist.] Feb. 7, 2013, no
pet.) (mem. op.). The Family Code further provides that income from retirement
accounts can be considered part of a parent’s net resources, but only when it is
actually received. Tex. Fam. Code Ann. § 154.062(b)(5); see also, e.g., Attanguile
v. Attanguile, 584 S.W.3d 163, 182 (Tex. App.—El Paso 2018, no pet.) (“Suhey
has not cited any authority, nor are we aware of any, that authorize a court to
consider funds held in an undistributed retirement account as qualifying as
retirement income actually being received.”). Finally, withdrawals from retirement
accounts that are subject to the sole management, control, and disposition of one
spouse can be considered by the trial court in its determination of net resources and
that parent’s child support obligation. See Tex. Fam. Code Ann. § 3.202(c) (“The
community property subject to a spouse’s sole or joint management, control, and
disposition is subject to the liabilities incurred by the spouse before or during
marriage.”); In re A.D., 73 S.W.3d 244, 248 (Tex. 2002) (characterizing child
support as “a previously adjudicated liability” of the obligor); see, e.g., Koenig v.
DeBerry, No. 03-09-00252-CV, 2010 WL 1009170, at *4 (Tex. App.—Austin
2010, no pet.) (mem. op.) (“The district court thus properly considered evidence
that Koenig had recently received $34,391.59 in income from cashing out his
retirement account in determining his monthly child-support obligation.”).

B. ANALYSIS

Here, the trial court found that William’s monthly net resources were
$9,200.00 and calculated his child-support payment to be twenty-five percent of
his net resources, as mandated by the Family Code, equaling $2,125.00 per month.
See Tex. Fam. Code Ann. § 154.125(b). Without providing any applicable standard
of review or discussing the evidence before the trial court, William argues that
Amy “has produced no evidence sufficient to prove that [William] earns $9200 per

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month . . . .” See Tex. R. App. P. 38.1(i).

William testified that his monthly income at the time of the final hearing was
$4,500.00. William also testified that, in 2017, he had a 401k account with
“probably” a balance of around $200,000.00 and an IRA with “probably”
$100,000.00. A statement of the 401k account from June 11, 2018, shows a
balance of $163,794.12. William stated that he liquidated the 401k account and the
IRA, and that the money had been spent on living expenses and with his daughters
since the filing of the divorce.

Furthermore, neither William nor Amy presented evidence of whether the
withdrawals from the 401k or IRA accounts represented interest or dividends, a
return of principal or capital, or some mix of the two. See Harrison, 2013 WL
485787, at *3 n.1. Therefore, we consider the withdrawals from the 401k and the
IRA as part of William’s net resources. See id.; Koenig, 2010 WL 1009170, at *4.

These sums total $300,000.00. Approximately fifty-seven months passed
between the filing of the divorce and the date of the final hearing. Dividing the
total sum by the number of months results in a monthly average of $5,263.15. See
Koenig, 2010 WL 1009170, at *4. Once William’s income from his current
employer of $4,500.00 is added, the total increases to $9,763.15. Viewing this
evidence in the light most favorable to the trial court’s finding that William’s
monthly net resources are $9,200.00, we conclude that the evidence is legally
sufficient. See In re A.C., 560 S.W.3d at 630–31; Koenig, 2010 WL 1009170, at
*4. Because there was legally sufficient evidence that William’s monthly net
resources are $9,200.00, we conclude that the trial court did not abuse its discretion
when it ordered William to pay $2,125.00 per month in child support. See Tex.
Fam. Code Ann. § 154.125(b).

We overrule William’s second issue.
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V. CONFIRMED ARREARAGES

In his third issue, William argues that the trial court abused its discretion
when it confirmed $61,625.00 in child support arrearages because he had been
supporting the children throughout the parties’ separation.

A. APPLICABLE LAW

“The trial court in an enforcement action is to confirm the amount of
arrearages as a finding of fact.” Ochsner v. Ochsner, 517 S.W.3d 717, 72 (Tex.
2016). “Nothing in the statute suggests that the trial court can consider only
payments made through the registry in determining the amount of child support
that an obligor has paid, and thus the amount for which the obligor is in arrears.”
Id. “Rather, the statute contemplates that the trial court has discretion to consider
direct payments either to the other parent or to a third party in deciding whether an
arrearage exists.” Id.

Under Family Code § 157.263, the trial court’s duty to confirm an arrearage
arises only after the movant has first met the burden of proving not just the
existence of a child-support obligation, but of an arrearage. Tex. Fam. Code Ann.
§ 157.263(a). An arrearage in the context of a child-support enforcement action
occurs when an obligor has failed to satisfy his child-support obligation. Ochsner,
517 S.W.3d at 720. “In calculating child-support arrearages, the trial court’s
discretion is very limited.” Chenault v. Banks, 296 S.W.3d 186, 189 (Tex. App.—
Houston [14th Dist.] 2009, no pet.). The trial court has no discretion to forgive or
decrease a past child-support obligation, In re A.L.S., 338 S.W.3d 59, 65–66 (Tex.
App.—Houston [14th Dist.] 2011, pet. denied), and its calculation of child-support
arrearages must be based on the evidence of payment; not on an assessment of
what is fair or reasonable. White v. White, No. 03-21-00323-CV, 2022 WL
2542004, at *2 (Tex. App.—Austin July 8, 2022, no pet.) (mem. op.).
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B. ANALYSIS

Here, the trial court found that William’s child support obligation was
$2,150.00 per month beginning when Amy filed her petition for divorce on July
20, 2017, until January 1, 2020. During this period there were twenty-nine months;
thus, William’s total child support obligation for that period was $61,625.00.

William testified that he paid Amy certain lump sums towards child support
during this period, totaling $9,000.00. Likewise, Amy testified that William paid
her child support during that period in two lump payments of $5,000.00 and
$4,000.00. Because it is undisputed that William paid Amy $9,000.00 towards his
child support obligation during this period, we conclude that the trial court abused
its discretion when it confirmed William’s arrearage at $61,625.00. See Ochsner,
517 S.W.3d at 731 (“A trial court does . . . abuse its discretion when its decision is
contrary to the only permissible view of the evidence.”). The evidence supports
only the conclusion that William failed to pay $52,625.00 during this period in
child support. Accordingly, we reverse the trial court’s determination of child-
support arrearage totaling $61,625.00 and render judgment that William’s
confirmed arrearage is $52,625.00. See id.; McCain v. McCain, 636 S.W.3d 679,
692 (Tex. App.—Austin 2011, no pet.).

We sustain William’s third issue.

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VI. CONCLUSION

We reverse in part the trial court’s determination of William’s child-support
arrearage totaling $61,625.00 for the period between July 20, 2017, and January 1,
2020, and we render judgment that the arrearage is $52,625.00. We affirm the
remainder of the judgment.

/s/ Margaret “Meg” Poissant
Justice

Panel consists of Justices Wise, Zimmerer, and Poissant.

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