Penick v. Penick

BLEIL, Justice,

dissenting.

The majority’s decision, that insufficient evidence exists to support the trial court’s finding, is final and is perhaps of only slight significance to anyone other than the parties in this case. Tex.Const. art. V, § 6 makes our decision conclusive on the factual issue decided. See, e.g., Meshwert v. Meshwert, 549 S.W.2d 388 (Tex.1977); Williams v. Williams, 160 Tex. 99, 325 S.W.2d 682 (1959). Nonetheless, just because what we do today may be final, does not give us license to do whatever we choose and does not necessarily make what we do right.

The majority’s opinion, though carefully drafted and detailed, evinces a certain willingness to depart from traditional rules. My concerns are (1) the majority’s emphasis upon the nonissue of the “circumstances of the children”; (2) its casual discounting of Robert Penick’s testimony; and (3) its curious means of “fact finding” that despite the testimony and the documentary evidence, Robert Peniek had an increased income when the trial court found that it had decreased.

Circumstances of the Children

The majority’s frequent statement that no evidence shows that the circumstances of the children have changed is perplexing. No one made this claim at trial or on appeal. Clearly, this point should not be a significant basis for the majority’s decision. The majority’s accent on this nonissue foretells its flawed decision. Robert Peniek sought to show that his and Maria Penick’s financial circumstances — concerning income and obligations — had changed.1 The court found those assertions to be true.2

Robert Penick’s Testimony

In proving parties’ financial circumstances in proceedings like these, frequently *411most of the evidence comes from the parties themselves. The factfinder — here the trial court — has the uniquely difficult task of deciding facts. We do not have that task. Usually we say that the factfinder judges the credibility of the witnesses and the weight to be given their testimony. See Yanez v. Branch, 725 S.W.2d 343 (Tex.App.-Corpus Christi 1987, no writ). We also generally say that a court of appeals is not in a position to second-guess a trial court which saw and heard, live, all witnesses at trial on a motion to modify provisions of the divorce decree. See Dunker v. Dunker, 659 S.W.2d 106 (Tex.App.-Houston [14th Dist.] 1983, no writ); Carpenter v. White, 624 S.W.2d 618 (Tex.App.-Houston [14th Dist.] 1981, no writ). And we say that, as a general rule, the factfinder may make reasonable inferences and deductions from direct and circumstantial evidence. Jim Walter Homes, Inc. v. Gonzalez, 686 S.W.2d 715, 718 (Tex.App.-San Antonio 1985, writ dism’d); see also Danny Darby Real Estate, Inc. v. Jacobs, 760 S.W.2d 711, 715 (Tex.App.-Dallas 1988, writ denied).

Today the majority casts aside these traditional rules of appellate review while characterizing Robert Penick’s testimony as containing “self-serving statements.” Were this a basis for disregarding facts found in the trial court, we would routinely be required to reverse domestic relations cases, which many times have only evidence furnished by the parties.

Robert Penick’s “Increased” Earnings

Although choosing to discredit much of Robert Penick’s testimony, the majority picks some to credit and some to ignore. For instance, it accepts fully Robert Pen-ick’s “admitted income” of $16,077.00. (Majority opinion page 410). Thus, by adding back the depreciation to his stated income at the time of the hearing and comparing it with the income — without “adding back” depreciation — at the time of divorce, the majority finds an increase in Robert Penick’s earnings. An appellate court should not assume that the trial court acted irrationally. There was evidence of Robert Penick’s decreased earnings. The trial court found that as a fact and we should not assume that the trial court did not allow depreciation on rental property at the time of divorce, but did allow it one year later, when that assumption is inconsistent with the trial court’s finding of decreased earnings.3 This implies facts in a manner inconsistent with the facts specifically found by the trial court. There was no finding of fact on whether Robert Penick’s net income at the time of divorce was before or after depreciation, nor was any such finding requested. Thus any omitted, unrequested finding should be presumed in support of the judgment. Bolli v. Prewitt, 561 S.W.2d 917 (Tex.Civ.App.-San Antonio 1978, no writ). The majority — citing no authority — adopts the reverse proposition, however. And, the majority chooses to ignore a generally accepted premise that when the evidence is conflicting, we should not substitute our judgment for that of the trial court. Norris of Houston, Inc. v. Gafas, 562 S.W.2d 894 (Tex.Civ.App.-Houston [1st Dist.] 1978, writ ref’d n.r.e.).

Ordinarily, in disagreeing with the majority about whether sufficient evidence ex*412ists, I would simply say that, “I disagree because I find sufficient evidence to support the trial court’s findings.” Merely an expression of disagreement is not sufficient, however, in light of the reasons stated for the majority’s decision.

. Tex.Fam.Code Ann. § 14.08(c) (Vernon Supp. 1989) deals with the modification of an order or a decree which provides for support and conser-vatorship of a child. Section 14.08(c)(2) is that section germane to the proceeding which was brought in the lower court. It provides that the court may modify an order or portion of a decree that: “provides for the support of a child if the circumstances of the child or a person affected by the order or portion of the decree to be modified have materially and substantially changed since the date of its rendition, except that a support order may be modified only as to obligations accruing subsequent to the motion to modify.” Section 14.08(c)(1) deals with modification concerning conservatorship and Section 14.08(c)(3) deals with modification of a decree concerning rights of access and possession. It is only Section 14.08(c)(2) which is germane to our decision. It indicates that support of a child may be changed in two instances: (1) when the circumstances of the child have changed (for example, in the case of increased financial needs due to illness, educational requirements or other special matters); or (2) when the circumstances of the other persons affected by the order have materially and substantially changed since the order’s entry. This suit was brought explicitly on the basis of changed financial circumstances with regard to Robert and Maria Peniek.

. Ordinarily, when we pass on the factual sufficiency of the evidence, we consider and weigh all the evidence and set aside a finding only if it is so contrary to the overwhelming weight of the evidence as to be wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). For years we have routinely said that if there is any evidence of probative force to support the findings, we must uphold them on appeal. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Some of the evidence before the trial court was the following: since the divorce Robert Peniek had remarried; his present wife has a medical condition resulting in extensive medical bills; he has a young stepchild for whom no child support is paid; he assists his wife in supporting that child; his wife is not employed; his 1986 income was $14,921.00, which has decreased to $13,600.00; his assets used as rental properties have decreased in value approximately one-*411third; and he anticipates an increase in taxes and expenses on those properties to accompany the increased vacancies he has already experienced. In addition to this evidence given in the form of testimony by Robert Penick, his financial statement was introduced showing his monthly income to be $1,140.00; his statement of expenses showed that his expenses, before child support was paid, consumed all but $99.00 per month of his income. Maria Penick testified that she earned $2,000.00 per month as a legal secretary; that she recently received a raise of $200.00 per month; that her former mother-in-law had not required her to pay rent for the last three months and had furnished $140.00 per month for the children’s school tuition. Additionally, Maria Penick receives some cash from Robert Penick in satisfaction of the community property settlement division.

. It is further inconsistent with the trial court's finding of fact in the divorce proceedings that the parties benefited “by use of the depreciation of’ Robert Penick’s “separate estate to reduce the community estate tax liability.”