*1 рrior testimony was relevant under ap- TEX.R.CRIM.EVID. to show
pellant given explanations untrue death, surrounding
events his wife’s trial court had TEX.R. discretion under
CRIM.EVID. 403 to decide that its rele- substantially outweighed by
vance was not danger prejudice. of unfair
We hold that the trial court not re- did
versibly permitting reading err in
appellant’s prior prior testimony from the
trial, including questions which con-
tained “numerous statements prosecutor.” point of error is third prior
overruled. hold that We testimo-
ny prove was not offered “to bad character Appellant” and that it was prove appellant’s
relevant to attempted ex-
planations incriminating circum- surrounding
stances his wife’s death. The
fourth of error is overruled. We also testimony
hold that the prior from his present jury wаs read to the did not
“deprive him of a fair trial.” The fifth
point of error is overruled. of the trial af-
firmed.
In the Matter of the MARRIAGE OF
Nancy Morrow EDWARDS and James
R. Edwards and in the Interest of Rob- Edwards,
ert Karl a Minor.
No. 07-90-0007-CV. Texas, Appeals
Court of
Amarillo.
Feb. 1991.
Rehearing Overruled March Brock, Lubbock,
Ralph appellant. Brown, Bass, Rice, Harding, Fargason & Brown, Lubbock, appellee. Clifford W. *2 of child REYNOLDS, C.J., master on the issue of modification and Before support. POFF, and JJ. DODSON con- The court master’s recommendation REYNOLDS, Justice. Chief findings amount of net tains the that the James R. Ed- By four $4,000 to available Jim is over resources increas- modification order wards attacks a month, per that the amount available to (1) the support. He contends that ing child month, per- $2,500 per is that power modify to his child trial court support child centage applied under the they obligations support because were 20%, the reason the is parties, product contract between by the court support ordered abused discretion and that court by computed apply- varies from amount (2) the ordering the modification because guidelines is “Mr. Ed- percentage factually insuffi- legally was and evidence provided in support addition to wards [sic] or substantial cient to show material support and child is support,” ordered circumstances, (3) the evidence $1,200 beginning per month No- raised to factually legally and insufficient was 1, Additionally, wаs 1989. Jim or- vember interest show the increase was pay attorneys’ court costs and dered to by stated fees. support the trial court for child court master’s Nancy appealed from the guidelines con- by that indicated above finding, to contest recommendation section the Texas Code tained others, support provided by among еxpressly pro- Supp.1991) 14.055 Jim in addition to by will overrule the hibited statute. We varying from the amount com- reason for point, points, three sustain the fourth first guide- puted applying by reverse and remand. hearing, After a en- lines. (Jim) Mor- R. Edwards James adopting the court master’s tered its order 2, by Edwards divorced a March
row recommendations, perfect- from which Jim decree, final was the in which there appeal. ed this by incorporation reference approval initially only that his contends Agreement couple’s Inci- contractual pay child is contractu Support to Divorce and Child and Visi- dent therefore, subject to modifica al divorce, Rights. Upon Nancy be- tation points out that by tion the trial court. He couple’s managing came conservator contained no decree divorce final Karl, children, Amy, age two minor appellant pay child order that age 11. support; in any specific amount of child obligated pay, pay, an Jim was did stead, merely stated the order per average approximately $700 month IT that thе THEREFORE ORDERED IS Then, Amy and Karl. for naming Agreement Incident to Divorce 1,1986, September Amy beginning date Conservator, as Managing Petitioner age pay per reached Jim was children, minor Karl his 18th month until approved incorporated hereby birthday May by Decree reference. into this 10, 1986, Nancy asserts, September filed her he does not consti- language, On This pay he It agreement incident to tute suit construe the a decree continues, only follows, his he and for a modification divorce contractual, stemming support liability is requested port payments. She construc- agreement incident to divorce. Amy’s fund from the tion of terms of a trust concludes, Then, during since this couple education established contrаcts, marriage governed by the common law in child and an increase Bates, 406 S.W.2d Hutchings v. (Tex.1966), authority to later, the court has no years Three this cause severed fraud, accident hearing and a it in absence was held before a court except power modify had the parties. or mistake consent Morris, (Tex. provisions incorporatеd Morris v. 406 S.W.2d into the de- Civ.App. Duke, cree of divorce. Duke at 203. The of error over- first decision, years Yet after three its Morris *3 ruled. Court, graphically this in displayed Duke, (Tex.Civ. Duke v. 448 200 By his second 1969, writ), App. exemplified legally characterizes the evidence as held, split authority on this issue and support factually insufficient to an increase authorities, with conformably other because, contends, Nancy failed show authority the trial has or court reduce in cir change or substantial support child increase the contracted for (Vernon 14.08(a) cumstances. See sec. at the time of their divorce. (Vernon 1986); 14.08(c)(2) Supp.1991). sec. Because of our view that the Duke decision 1984, guide At time of in the divorсe grounded parent-child better on relation determining eq aid the in lines to courts ship principles, disposed we are de uitable amounts of child holding.1 from its enacted, been later in but their enactment Family encourages Texas Code am- provision that cluded the parties icable par- settlements between to a may court cоnsider the [t]he relationship ent-child suit. Tex.Fam.Code chapter child for the of a in this 14.06(a) (Vernon Ann. Supp.1991).2 To § to determine been whether there has end, provides the Code if the change material and in cir- agreement court parties finds the “is 14.08(c)(2) Section cumstances under interest,” in the child’s best terms this code that warrant a modifica- agreement shall be set forth in the existing tion of an order if decree, parties shall be the modification is in the best interest of perform terms, en- which are made the child. all forceable available en- remedies 14.056(a) (Vernon judgment, Supp.1991).
forcement of a but en- Sec. are not Under guidelines, forceable as contract terms unless Jim’s for the specifies. 14.06(b) (d) port so Sec. of Karl would be of the first 20% — (Vernon 1986). Subsequent resources, plus any sections autho- his net addi- rize the to modify support proven, tional amounts of child de- provides decree that pending the child at the significantly, place (Vernon these 14.055(c) sections no limit time of order. Sec. authority the modification in Supp.1991). the event a support agreement, contractual confirmed, The and Jim does not otherwise, incorporated in the decree. dispute, that his net resources exceed 14.08(a) 1986); 14.08(c)(2) Sec. sec. $4,000 per Computation in accord- (Vernon Supp.1991). guidelines produces ance with the dollar
Thus, although month, agree figure plus any contractual addi- incorporated Then, ment of Jim and proven. guide- tional amounts pursuant decree divorce support obligation to section lines fix Jim’s child in an 14.06, provisions greater that section’s do not at extin least 100% guish power modify or limit the court’s In contained divorce decree. situation, provide order to for the best the trial court cannot said tо Huckeby by finding interest of the child. v. Lawder have abused its discretion suffi- milk, (Tex.App justify cient in circumstances . —East land Consequently, original review of holding supporters 1. That the Duke All sections cited hereafter are sections of the Dorshaw, Annotated, critics is illustrated in Dorshaw Texas Code referenced to (Tex.App. Corpus S.W.2d 783 Christi publication supplemеnt. Vernon’s 1986 or 1991 — writ). children, Amy adult error either of two point of provisions. The second Randy. overruled. segregated those amounts are sub- When point, Jim Under his third monthly expenditures Nancy’s tracted its discretion because the trial court abused remaining during period, the four-year factually legally and in evidence producing a common monthly expenditurеs show the order sufficient $2,982.13, benefit interest the best $2,310.67 $1,736.24, $2,340.19, 14.056(a) (Vernon Supp. child. See Sec. respectively. These 1991). The exercise of discre trial court’s utilities, expenditures the costs of covered modifying child setting tion *4 groceries upkeep yard, on the house and appeal on payments will not disturbed supplies, meals outside the and househоld showing of clear abuse. Car without a entertainment, home, other mis- gifts, and White, 618, (Tex. penter v. 624 619 S.W.2d expenses. cellaneous 1981, writ). no App. [14th Dist.] — Houston expenditures these were neces Some of trial of when the Abuse discretion occurs not; sary living expenses, some how arbitrary, unreasonable or court’s action ever, duty to not limited to error оf upon gross based Sohocki, 730 bare necessities. Sohocki v. Appeals, law, v. Fourth Court Johnson 30, (Tex.App. Corpus Christi 31 of — 916, (Tex.1985), is with 918 or 700 S.W.2d 1987, writ). considering ex In these any guiding prin to rules and out reference reasonably penses, could Opera Aquamarine v. Downer ciples. sup that Jim’s of Karl’s conclude Inc., (Tex.1985), tions, 238, 241-42 701 S.W.2d inadequate, especially light in port was denied, 1159, 106 S.Ct. rt. 476 U.S. guide subsequent enactment of ce 2279, (1986). making 721 In 90 L.Ed.2d lines. determination, reviewing court Nancy that points Jim to record evidence light most must view the evidence outside the home has not needed to work of the the actions trial court favorable to divorce; savings that her since the fa indulge every legal presumption in deteriorated; finanсial condition have not Home Parks U.S. judgment. vor of 1986, that, 1, beginning September the date 479, (Tex.App.— Corp., 485 18, age paid per Amy he more $50 reached dism’d). 1983, writ Houston Dist.] [1st previously he Karl month for of discretion does exist where Abuse deprived paid; that has not been Karl conflicting evi decision is based on might be anything since the divorce and 859, Huey, 571 S.W.2d dence, Davis v. things of the without a few better off (Tex.1978), long there is some evi as as course, Nancy the fact has had. Of probative charac of substantive and dence fully to Karl without has been able v. Chris Stout support the decision. ter to on her expending other than the interest tian, 146, (Tex.Civ.App.- 593 S.W.2d job savings taking and without outside writ). 1980, no
Austin to conclusion the home does not lead sup supplement Jim’s child An of the record reveals that she should examination per beyond month her own expense port of $400 submitted detailed records 1986, 1988, parent has a 1987, duty support Karl. Each years and 1989 children, Mat duty minor through hearing. During the date Miller, 386, Marriage ter spent 600 S.W.2d years, Nancy monthly amounts these writ), (Tex.Civ.App. in $248.01 in $364.90 $284.33 support provisions shоuld reflect and child in in 1989 for Karl’s $372.55 parents lunches, allowance, clothing, respective abilities school Cunning Cunningham v. expenses. segregated contribute. medical ham, (Tex.Civ.App.— spent solely amounts for Karl’s benefit Moreover, her, Corpus spent solely to Christi from those benefit testimony might context, Nancy’s expenses, her or which included automоbile things clearly off to increase be better without a few trial court ordered Jim support payments his child provided by referred to luxuries Jim. affirming In the court master’s also out that he has had Karl Jim findings, adjudged rea- of the about time that he 38% son the ordered amount varied from $80,197.48 provided support obli- above his guidelines “because However, gation since the tri- divorce. port provided Mr. Edwards addition al court was able consider evidence regard, support.” In this $47,795.50 expended sum on the factors the consider directly clubs, golf, items related to such varying following from or lessons, fees, golf trips, entrance and relat- child; (1) (2) are: the needs of the ed matters. ability contribute remainder, spent just theOf over child; (3) financial re- car on new for Karl. The rest of sources available for the haircuts, money spent on on food child; possession the amount of Jim, consumed while Karl was with 14.052(b) and access to the child. Sec. *5 required
clothes which Jim leave Supp.1991). mother, behind when he returned to his Although given by the reason the trial bring back with him when he returned statute, expressly court is not prohibited by may Jim. trial well have con- clearly it is neither a need of the child at cluded a only small required by of the order time section expended by Jim relieved 14.055(c),nor a factor listed in section 14.- any necessary expense sup- from for Karl’s 052(b). Indeed, the given reason cannot be port which she would have had to meet a cause to of increase the amount an exist otherwise. 14.056(b) child support order. Sec. (Vernon Supp.1991). Rather, gen it is the agree with implied We Jim’s conten parent freely eral rule that a who takes obligated tion that he is not to contribute to responsibility for his or her children should Nancy’s support; yet, the real issue is the encouraged, be Adcock, White adequate support of Karl. See Orsak v. (Tex.App. [14th — Houston Orsak, (Tex.App.— 1984, writ), penalized by an Dist.] Dallas Given the facts increase the amount of existing an cause, the court’s determination that 14.056(b),supra. order. Sec. an increase was in the child’s best interest It history follows that the of voluntary against weight was not so of the evi support provided in excess of the amount dence as to constitute clear abuse proper upon not a basis point discretion. The third of error is over may vary the trial court percentage ruled. guidelines. guidelines Variance from the By point his last Jim contends predicated gross on this factor is such a court abused its discretion error of law toas constitute increasing the amount of child be- an abuse of discretion. Johnson v. Fourth yond guideline recommendations Appeals, Court at 918. The expressly prohibited by statute. point fourth of error is sustained. teach that where the obli- Accordingly, gor’s $4,000 net resources exceed reversed, court is and this cause remand- month, the apply applica- court should ed. ble first obligor’s net resources fur- without POFF, J., concurs and dissents. guideline ther reference to the percentages, Justice, POFF, concurring and may order additional amounts of child dissenting. port proven, depending “as needs at time of the I majority judg- order.” Sec. concur with the that the 14.055(c)(Vernon Supp.1991). ment reversed. I should be dissent legit- quate support sufficient to meet overruling majority opinion Under this imate needs of child.” For the reasons of error.
Jim’s third standard, two-step em- stated, process should be I be conclude that ruling modify a motion ployed an in- when by ordering abused its discretion First, the court should de- paid of child crease in the amount an termine that a material and grounds that such in- by Jim on the place. had taken change in circumstances interest of the crease was “in the best Second, how the court should determine paradoxical seem that an child.” It requested modification of support might be in and whether the in child increase legitimate child, affect the needs will would the best interest of the but as be shown, child. application literal of that standard to the can lead results detrimental case, evi- In this there child’s interest. best posi- an increase in would dence of his tively legitimate affect of the child” standard “best interest even if his determining son. Jim also contends that whether to inappropriate increased, the increase existing order оn contribution an would not enhance the child’s standard grounds and substantial 14.056(a) merely amount of living, but reduce the under section circumstances He out reading Nancy's A literal contribution. Code. obligation, the all motions to his would mandate that statute not in the interest of granted, and all trial court acted increase child denied, of his simply but in the best interest to decrease be be- motions *6 always in the ex-wife. cause an increase would be child, and decrease interest of the best Nancy contends that her son’s needs light, the best not. Examined in this would food, general living expenses clothing, and meaning- interest of child standard increased since the child have less. court, approved by in- argues inflatiоnary pressures argument a similar have Nancy advances necessary to furnish the amount justified her brief: the Court was creased “[I]f specify support. does not support being paid by adequate She expenses other the ordi- [Jim], implied it unusual clearly then must living expenses increase as a justification nary was in that the increase I matures. find no еvidence the child’s interest.” She best receiving ability that the child is ade- pay if has the more than the record agree- quate support. legitimate His needs have required by per month $400.00 met, ment, been and sometimes met excess. it is in the best interest dangerous Nancy this fact. addi- do This is a does not contest for him to so. legit- go to meet the If child’s interest fol- tional will not rationale. child, no obligor, because addi- imate needs of lows the financial fortunes legitimate have shown. change reducing tional needs been then a in circumstances the child” support Absent the “best interest of obligor’s ability to furnish 14.056(a), there of section necessarily in an order reduc- standard would result to increase beсause there ing support, regardless of the best inter- showing that the child is not ests of the child. The "best interest been receiving adequate support. its child” then belie own standard would name. question by significant raised the statute authorizes an employed case is whether standard that should be support, ab- in contractual determining interest of the increаse when the “best (1) a and substantial proof sent child” under section 14.056 is that “ade- ability is, parent necessary each to furnish and the That legitimate taking meet needs by into account the total furnished both circumstances; m the fail- ure of current levels to meet the
legitimate needs of the child. Does the
enactment of sections 14.055 and 14.056 Nancy to repudiate
allow her contractual support agreement grounds
that it not in compliance substantial with I section 14.055? decline adopt that construction.
As by majority, noted review, powerless
is not approve, support agreements. This
power must be retained
fulfill protect the child’s
legitimate If, needs for support. due to
subsequent material
changes circumstances, a contractual
support agreement meeting legitimate needs,
child’s can it and should
be modified.
If, however, legitimate the child’s
are met he or is adequately sup- she
ported, the trial grounds court has no
modify the contract entered into
parties previously approved by the grounds
court. I see no modifying
decree in this case. The record contains
evidence that receiving the child is not ade-
quate support. I, therefore, conclude the
trial court abused its discretion increas- Jim’s child obligation. Accord-
ingly, I would sustain Jim’s third the judgment reverse of the trial
court, and render vacating the modifying
order the decree.
Roger BRUMLEY, Appellant, Michael Texas, Appellee.
The STATE of
No. 07-90-0049-CR. Texas, Appeals
Court of
Amarillo.
Feb.