Carlos DURAN, Appellant, v. Luz Elena GARCIA, Appellee, 224 S.W.3d 309

OPINION ANN CRAWFORD McCLURE, Justice. Carlos Duran appeals from an order awarding retroactive child support for a child he fathered during a long-term extramarital relationship. Finding no error, we affirm. FACTUAL

SUMMARY Brenda Garcia was born on March 27, 1984 to Luz Elena Garcia and Carlos Duran. At the time, Duran was married to another woman and Garcia worked as a live-in housekeeper for a family in El Paso. Garcia’s sister cared for the child in Juarez, Mexico while Garcia worked in El Paso. One weekend each month, Garcia would visit Brenda in Juarez and every week she would send money for her daughter’s support. Once Brenda turned fifteen, the necessary paperwork was completed so she could attend high school in the United States. She moved to El Paso and lived with another relative.

Throughout this period of time, Duran and Garcia continued to date. In 2001, three weeks after his wife passed away, Duran asked Garcia to leave her job and move into his home. The couple lived together for fifteen months. After they separated, the Attorney General brought suit to establish paternity and child support. Following a bench trial, the court ordered Duran to pay $7,680 in retroactive child support. At the time of trial, Brenda was already eighteen. No order for current support was rendered. The trial court entered formal findings of fact.

He found that Duran’s actual income was never established, but he had an income in excess of the minimum hourly wage and net monthly resources of at least $803. Duran does not challenge these findings on appeal. The trial court applied the statutory child support guidelines of 20 percent to his net monthly resources to find that child support should be established at $160 per month. He then ordered retroactive support which was reduced to judgment and assigned to the Attorney General.

Simple mathematical calculations indicate that the judgment represents support of $160 per month for a period of 48 months before suit was filed. See tex.Fam.Code Ann. § 154.131(c)(Ver-non 2002). We presume that an award made in compliance with

Section 154.131 is reasonable and in the best interest of the child. Tex.Fam.Code Ann. § 154.131(c). Duran does not complain that this presumption was rebutted. Instead, he brings three issues for review. Broadly stated, he complains that the trial court erred in awarding child support payable to Garcia because she never had actual physical possession of the child. He also contends that the court failed to consider the actual support he had paid for his daughter, the undue hardship of paying the retroactive support, and the age and needs of the child.

His issues for review as drafted challenge the legal sufficiency of the evidence to support the trial court’s findings of fact and complain that the support order constitutes an abuse of discretion. STANDARDS OF REVIEW In considering a legal sufficiency or “no evidence” point, we consider only the evidence which tends to support the fact findings and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Worsham Steel Co. v. Arias, 831 S.W.2d 81, 83 (Tex.App.-El Paso 1992, no writ). If any probative evidence supports the findings, the judgment must be upheld.

In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951); Neily v. Aaron, 724 S.W.2d 908, 913 (Tex.App.-Fort Worth 1987, no writ). This deferential standard prevents us from considering conflicting evidence, much less weighing it. In a bench trial, findings of fact are the equivalent of a jury answer to the special issues. Associated Telephone Directory Publishers, Inc. v. Five D’s Publishing Co., Inc., 849 S.W.2d 894, 897 (Tex.App.-Austin 1993, no writ); Lorensen v. Weaber, 840 S.W.2d 644 (Tex.App.-Dallas 1992), rev’d on other grounds sub nom.; Exxon Corp. v.

Tidwell, 816 S.W.2d 455, 459 (Tex.App.-Dallas 1991), rev’d on other grounds, 867 S.W.2d 19 (Tex.1993); A-ABC Appliance of Texas, Inc. v. Southwestern Bell Telephone Co., 670 S.W.2d 733, 736 (Tex.App.-Austin 1984, writ ref'd n.r.e.). There are two separate legal insufficiency claims. When the party without the burden of proof suffers an unfavorable finding, the challenge is one of “no evidence to support the finding.” See Creative Manufacturing, Inc. v. Unik, 726 S.W.2d 207 (Tex.App.-Fort Worth 1987, writ ref'd n.r.e.).

Where, as here, the party having the burden of proof suffers an unfavorable finding (failure to find), the proper complaint is that the fact was established as “a matter of law.” Stated differently, when attacking the legal sufficiency of the evidence to support an adverse finding on an issue for which it had the burden of proof, an appellant must demonstrate that the evidence conclusively established all vital facts in support of the issue. Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex.1989); In re Estate of Livingston, 999 S.W.2d 874, 879 (Tex.App.-El Paso 1999, no pet.).

A party attempting to overcome an adverse fact finding as a matter of law must surmount two hurdles. Sterner, 767 S.W.2d at 690; In re Estate of Livingston, 999 S.W.2d at 879. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. Sterner, 767 S.W.2d at 690; In re Estate of Livingston, 999 S.W.2d at 879. Second, if there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law. Sterner, 767 S.W.2d at 690; In re Estate of Livingston, 999 S.W.2d at 879.

Only if the contrary position is conclusively established will the point of error be sustained. In re Estate of Livingston, 999 S.W.2d at 879-80. Most of the appealable issues in family law are evaluated against an abuse of discretion standard, be it the issue of property division incident to divorce or partition, conservatorship, visitation, or child support. Tate v. Tate, 55 S.W.3d 1, 5-6 (Tex.App.-El Paso 2000, no pet.). The term “abuse of discretion” is not susceptible to rigid definition. Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 934 (Tex.App.-Austin 1987, no writ).

The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action, but whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986), citing Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (Tex.Comm.App.-1939, opinion adopted). Stated differently, the appropriate inquiry is whether the ruling was arbitrary or unreasonable. Smithson v.

Cessna Aircraft Company, 665 S.W.2d 439, 443 (Tex.1984); Landry v. Travelers Insurance Co., 458 S.W.2d 649, 651 (Tex.1970). The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965); Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959).

While an appellant may challenge the sufficiency of the evidence to support findings of fact, in most circumstances, that is not enough. In the child support context, an appellant may challenge the sufficiency of the evidence to support a finding of net resources, a finding of the proven needs of the child, a finding of voluntary unemployment or underemployment, or a finding of a material and substantial change in circumstances. Knight v. Knight, 131 S.W.3d 535, 539 (Tex.App.-El Paso 2004, no pet.). We employ a two pronged analysis:

(1) Did the trial court have sufficient information upon which to exercise its discretion, and (2) did the trial court err in its application of discretion? Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex.App.-El Paso 1998, no pet.). We apply the traditional sufficiency review to the first question. Id. Once we have determined whether sufficient evidence exists, we then must decide whether the trial court made a reasonable decision. Knight, 131 S.W.3d at 539; Lindsey, 965 S.W.2d at 592. In other words, we must conclude the court’s decision was not unreasonable or arbitrary. Id. IS PHYSICAL POSSESSION REQUIRED?

In Issues One and Three, Duran contends the trial court erred in finding that Garcia had physical possession of the child because Brenda lived with her aunt in Mexico and with another relative in El Paso. We construe his argument to be that the trial court could not award child support for periods of time that Brenda wasn’t living with her mother. Duran has not provided us with any authority supporting his contention and candidly concedes there is none, at least in Texas.

Instead, he argues that Garcia had a legal duty to support the child and any monies she paid to her sister for Brenda’s support should not be recouped from him. tex. Fam.Code Ann. § 151.001(a)(3)(Vernon Supp.2005). He refers us to the following statute: In a Title IV-D case, if neither parent has physical possession or conservator-ship of the child, the court may render an order providing that a nonparent or agency having physical possession may receive, hold, or disburse child support payments for the benefit of the child. Tex.Fam.Code Ann. § 154.001(c).

Clearly, the trial court had the discretion to order that someone other than Garcia or the Attorney General on her behalf should receive the appropriate child support. But in the absence of a statutory mandate, we perceive no abuse of discretion. And we decline Duran’s invitation to legislate from the bench that a support obligee must have actual physical possession of a child. Countless men and women serving their country in the Middle East would no doubt find such a ruling problematic.

Those of us living in a border community recognize that many parents are employed in Texas but support their children who remain in Mexico. We overrule Issues One and Three. FACTORS TO BE CONSIDERED In his second issue, Duran complains of the trial court’s failure to find that he has provided his daughter with support. He claims that the court should have considered the actual necessaries he provided, the undue financial hardship the money judgment will impose, and the age and needs of the child when the court awarded the retroactive child support.

There are several factors a court must consider in awarding retroactive child support: (

b) In ordering retroactive child support, the court shall consider the net resources of the obligor during the relevant time period and whether: (1)the mother of the child had made any previous attempts to notify the obligor of his paternity or probable paternity; (2) the obligor had knowledge of his paternity or probable paternity; (3) the order of retroactive child support will impose an undue financial hardship on the obligor or the obli-gor’s family; and (4) the obligor has provided actual support or other necessaries before the filing of the action. tex.Fam.Code Ann. § 154.131.

Duran testified he gave Garcia cash on various occasions in amounts ranging from $40 to $100 per week. He also testified he gave money to Brenda for food and clothes when she moved to El Paso. Duran did not provide the trial court with any evidence of the cash disbursements, nor did he quantify the monies actually paid. On the other hand, Garcia testified that she never received any money from him. Duran contends her testimony was not credible because she waited to pursue child support until after their relationship ended and Brenda had turned eighteen.

But the trial court as the trier of fact determines the credibility of a witness’s testimony. In re E.A.S., 123 S.W.3d 565, 572 (Tex.App.-El Paso 2003, pet. denied). In a proper legal sufficiency review, we consider only the evidence supporting the judgment. Garcia testified she received no money from Duran. Even if we were to conduct a factual sufficiency review, our opinion would not change. Although there was conflicting testimony as to whether Duran supported child, the trial court had the discretion to believe one witness over the other.

In this instance, the trial court may have considered Duran’s testimony but found Garcia’s testimony to be more credible. Such a decision was well within the trial court’s discretion. Next, Duran contends the imposition of the award will create financial hardship. He is sixty-two years old and about to retire from his job. Thereafter, his sole income will consist of social security benefits. He did testify, however, that he would be interested in continuing to work if other jobs were available. Finally, Duran argues other factors should have been considered.

Specifically, he contends the trial court should have considered the amount of time Garcia actually lived with Brenda and the fact that the child is now an adult. These factors are mentioned in

Section 154.128 which addresses the award of support outside of the statutory guidelines. tex.Fam.Code Ann. § 154.123. Here, the trial court ordered Duran to pay 20 percent of his monthly net resources in accordance with the guidelines. While the court might well have considered these factors, it was not an abuse of discretion to fail to do so. Based upon the testimony established at trial, we find there was legally sufficient evidence to support the retroactive support order. Finding the evidence sufficient, we also conclude the trial court did not abuse its discretion. Issue No. Two is overruled. Having overruled all of Duran’s issues on appeal we affirm the judgment of the trial court.