MEMORANDUM OPINION No. 04-10-00109-CV

Brian Keith MACGILLIVRAY, Appellant v. Georgia Lee MACGILLIVRAY, Appellee

From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2008-CI-15198 Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice Phylis J. Speedlin, Justice Rebecca Simmons, Justice

Delivered and Filed: June 1, 2011

AFFIRMED

Appellant Brian Keith MacGillivray (“Brian”) and Appellee Georgia Lee MacGillivray

(“Georgia”) were high school sweethearts who reunited at a high school reunion. They married in 2003 and have two children. Brian, a doctor, opened a concierge practice and supplemented his income by working in an emergency room. Georgia worked as a contract physical therapist.

After a jury trial, Georgia was awarded the exclusive right to designate the primary residence of 04-10-00109-CV the children. The trial court then determined the remaining issues. Brian now brings multiple issues on appeal. We overrule all issues and affirm the judgment of the trial court.

A. Attorney’s Fees

Brian argues the trial court erred in awarding attorney fees because the jury failed to

answer the question on attorney’s fees in the charge and because Georgia did not object to the jury’s failure to answer the question. Georgia responds that the trial court did not err because the parties agreed to allow the trial court to decide the attorney’s fees issue. In support, Georgia points to the final decree, which recites that “[b]y agreement of the parties as stated in open

Court, the judge . . . made rulings and findings on all remaining matters, including attorney’s fees . . . .” (emphasis added). Brian counters that if the parties made such an agreement, the trial court erred in enforcing it because there is no record of any such agreement that complies with

Texas Rule of Civil Procedure 11.

At a post-trial hearing, Brian objected to the trial court considering the issue of attorney’s fees, arguing that because the jury had failed to answer the question and because Georgia had failed to object to that omission, Georgia had waived any award of fees. Georgia’s counsel then stated to the court that the parties had agreed during the trial to submit the issue of attorney’s fees to the trial court and that this agreement was recited in open court at the bench. The trial court also remembered the parties making that agreement in open court during the trial.

Rule 11 provides that “[n]o agreement between attorneys or parties touching any suit

pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.” TEX. R. CIV. P. 11. Brian argues that because the agreement is not reflected in the reporter’s record, it does not comply with Rule 11. However, under similar facts, the Texas Supreme Court held in City of Houston v.

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Clear Creek Basin Authority, 589 S.W.2d 671, 677 (Tex. 1979), that Rule 11 “is satisfied if the oral waiver or agreement made in open court is described in the judgment or an order of the court.” Here, the final decree recites that the parties agreed in open court to submit the attorney’s fees issue to the trial court. Therefore, Rule 11 was satisfied. See id.

B. Child Support

Brian argues the trial court abused its discretion in awarding child support in excess of the statutory guidelines without making sufficient findings in support of such excess. In awarding child support, a trial court has discretion to deviate from the statutory guidelines.

Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996); see also TEX. FAM. CODE ANN. § 154.123(a)

(“The court may order periodic child support payments in an amount other than that established

by the guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines.”). Section 154.126(a) of the Texas Family Code provides that if the obligor’s net resources exceed $7,500, the trial court shall presumptively apply the percentage guidelines to the portion of the obligor’s net resources that does not exceed $7,500.00. TEX. FAM. CODE ANN. § 154.126(a). “Without further reference

to the percentage recommended by these guidelines, the court may order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the child.” Id. In making such an award, the trial court should subtract the presumptive award from

the proven needs of the child. Id. § 154.126(b). “After the presumptive award is subtracted, the court shall allocate between the parties the responsibility to meet the additional needs of the child according to the circumstances of the parties.” Id. “However, in no event may the obligor be required to pay more child support than the greater of the presumptive amount or the amount equal to 100 percent of the proven needs of the child.” Id.

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The “needs of the child” is not limited to the “bare necessities of life.” Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 n.3 (Tex. 1993). The trial court must determine what the needs

are on a case-by-case basis by following the “paramount guiding principle: the best interest of the child.” Id. (emphasis in original). Further, in determining whether to deviate from the guidelines, the trial court considers evidence of “all relevant factors,” including the following:

1) the age and needs of the child;

2) the ability of the parents to contribute to the support of the child;

3) any financial resources available for the support of the child;

4) the amount of time of possession of and access to a child;

5) the amount of the obligee’s net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee;

6) child care expenses incurred by either party in order to maintain gainful employment;

7) whether either party has the managing conservatorship or actual physical custody of another child;

8) the amount of alimony or spousal maintenance actually and currently being paid or received by a party;

9) the expenses for a son or daughter for education beyond secondary school;

10) whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;

11) the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;

12) provision for health care insurance and payment of uninsured medical expenses;

13) special or extraordinary educational, health care, or other expenses of the parties or of the child;

14) the cost of travel in order to exercise possession of and access to a child; 04-10-00109-CV

15) positive or negative cash flow from any real and personal property and assets, including a business and investments; 16) debts or debt service assumed by either party; and 17) any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parties. Id. § 154.123(b). Brian was ordered to pay $2,600.00 per month in child support, an amount that deviates from the statutory guidelines. In deviating from the guidelines, the trial court made the following findings: 1 1. The net resources of Brian MacGillivray per month is at least $20,400.00 2. The net resources of Georgia MacGillivray per month is $1698.77. 3. The percentage applied to the first $7,500.00 of Brian MacGillivray’s net resources for child support is 25%, which results in a child support figure of $1,875.00 per month. 4. The percentage applied to Brian MacGillivray’s remaining net resources of $12,900.00 for child support is 5.62%, which results in an additional $725.00 per month in child support. 5. The total percentage applied to Brian MacGillivray’s net resources of $20,400.00 per month for child support is 12.75%, which results in a total child support award of $2,600.00. 6. The specific reasons that the amount of child support per month ordered by the court varies from the amount computed by applying the percentage guidelines under section 154.125 of the Texas Family Code are as follows: a. Brian MacGillivray’s net resources exceed the maximum monthly amount referenced in section 154.125 of the Texas Family Code by $12,900.00; b. The cost of the proven needs of the children exceeds $5,000.00 per month; c. The amount of child support calculated under the guidelines for the first $7,500.00 of Brian MacGillivray’s net resources would result in a child support 1 On February 8, 2011, noting that Brian had complained in his brief that the trial court had failed to make findings pursuant to section 154.130(b) of the Texas Family Code, we abated this appeal to the trial court so that it could make such findings. We then allowed the parties to file supplemental briefing.

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obligation of $1,875.00 per month, which, when combined with the net resources of Georgia MacGillivray, would result in total net resources that is at least $1,426.23 per month less than the proven needs of the children. Such an award would not be in the best interest of the children, and would be unjust and inappropriate; and d. A total child support award of $2,600.00 per month is justified and proper in this case because i. such an award is in the best interest of the children; ii. such an award is necessary given the age and proven needs of the children;

iii. such an award is appropriate and justified given the ability of the parents to contribute to the support of the children; and

iv. such an award is appropriate and justified considering the financial resources available to each parent to support the children.

On appeal, Brian argues that the proven needs supported by the record equal no more than $2,083.00. Thus, Brian argues that by ordering him to pay $2,600.00 per month in child support, the trial court has required he pay an amount in excess of 100 percent of the proven

needs of the children in violation of section 124.126(b). In concluding that the proven needs of the children equal no more than $2,083.00, Brian refers to Trial Exhibit 100, an exhibit

introduced by Georgia and admitted in evidence without objection. In referring to Exhibit 100, Brian argues that the proven needs of the children should equal $2,083.00 per month. In making this conclusion, Brian removes certain items that were included in Exhibit 100’s list of expenses

for the children. For example, Brian deducts $425 from his daughter’s monthly proven needs, arguing that because his daughter now attends school, she no longer needs child care. However, Georgia’s exhibit was not objected to at trial and is evidence that her daughter has the need for child care. We cannot assume that because Georgia and Brian’s daughter is now attending school means that Georgia, a working mother, does not incur child care expenses, such as after-school care, for her daughter. See TEX. FAM. CODE ANN. § 154.123(b)(6) (explaining that in deviating 04-10-00109-CV from guidelines, court can consider child care expenses incurred by either party in order to maintain gainful employment); In re Gonzalez, 993 S.W.2d 147, 160 (Tex. App.—San Antonio

1999, no pet.) (holding that expenses for nanny were included within proven needs of the child).

Brian also removes recurring annual expenses for the children in the form of Christmas presents, birthday presents, birthday parties, and vacations, arguing that he can provide those needs to the children himself. However, Brian points to no authority that prohibits the trial court from considering such expenses as a “need” of the children. Indeed, while the “needs of the child” are not so expansive as to encompass the most extravagant demands, the trial court is given broad discretion to determine the needs of the child. See Scott v. Younts, 926 S.W.2d 415, 422 (Tex.

App.—Corpus Christi 1996, writ denied). And, when the monthly cost of these expenses is combined with Georgia’s child care cost for her daughter, the proven needs of the children exceed Brian’s court-ordered child support of $2,600. Therefore, the trial court did not require

Brian to pay an amount in excess of 100 percent of the proven needs of the children in violation of section 124.126(b).

Brian also complains that the trial court abused its discretion in deviating from the guidelines because of his “steep monthly debt level.” However, given the trial court’s finding

that Brian has monthly net resources of more than $20,000, we find no abuse of discretion in the trial court ordering Brian to pay $2600 per month in child support.

C. Temporary Spousal Support

Brian argues that the trial court erred in awarding temporary spousal support to Georgia through January 31, 2010, and in ordering him to pay temporary car payments and car insurance payments through January 31, 2010. We disagree.

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On November 14, 2008, the trial court ordered Brian to pay temporary spousal support to

Georgia in the amount of $1,200 per month. The trial court also ordered Brian to make temporary car payments and car insurance payments. The temporary orders specifically stated that they would continue in force until the signing of the final divorce decree or until further

order of the court. On September 29, 2009, during the jury trial regarding conservatorship, the parties proved up their divorce and the trial court orally granted the divorce: “Proved up the divorce? Want me to grant it today? Okay. Divorce is granted.” On October 1, 2009, the jury

returned its verdict by finding that Georgia should have the exclusive right to designate the primary residence of the children. On December 1, 2009, the trial court held a hearing regarding the remaining issues of property division, spousal support, child support, and visitation. During that hearing, the trial court orally denied Georgia’s request for spousal support and stated how

the property should be divided among the parties. On February 9, 2010, the trial court signed the final order, which specifically stated that the temporary orders “shall remain in full force and effect until January 31, 2010.”

Pointing to the oral pronouncement of divorce on September 29, 2009, Brian argues that because the trial court rendered an oral judgment that day, Georgia was not entitled to temporary spousal support after September 29, 2009. Brian further argues that he was not required to make the temporary car payments and car insurance payments after September 29, 2009. In making this argument, Brian emphasizes that under the law, judgment is rendered when the court makes an official announcement, either in writing or orally in open court, of its decision on the matter

submitted for adjudication and that once a judgment is rendered by oral pronouncement, the entry of a written judgment is purely a ministerial act. James v. Hubbard, 21 S.W.3d 558, 561

(Tex. App.—San Antonio 2000, no pet.). However, in order to be an official judgment, the trial 04-10-00109-CV court’s oral pronouncement must indicate intent to render a full, final, and complete judgment at

that point in time. In re Marriage of Joyner, 196 S.W.3d 883, 886 (Tex. App.—Texarkana 2006, pet. denied). That is, the trial court’s words, whether spoken or written, must evince a present, as opposed to future, act that effectively decides the issues before the court. Id. at 887. Here, there was no such intent by the trial court. On September 29, 2009, during the jury trial, the trial court stated that the parties were divorced before the jury had rendered its decision and before the trial court had decided the remaining issues. Thus, the trial court’s oral pronouncement on September

29, 2009, was not a full, final, and complete judgment.

Brian alternatively argues that the trial court’s oral rulings at the December 1, 2009, hearing should be considered the final judgment and thus Georgia is not entitled to temporary spousal support after December 1, 2009. In making this argument, he also argues that he was not

required to make the temporary car payments and car insurance payments after December 1, 2009. However, the temporary orders specifically stated that they would remain in effect until the final judgment was signed or until further order of the court. The trial court made no ruling on December 1, 2009, relating to temporary spousal support or relating to other temporary orders.

Brian next argues that the trial court had no authority to award temporary spousal support

after the December 1, 2009, oral pronouncement because the oral pronouncement made the judgment final that day and because the trial court may award temporary spousal support only

while a case is “pending.” Thus, Brian argues because the judgment was final on December 1, 2009, the case was no longer pending after that date. However, the case was indeed still pending.

Even if the trial court’s oral ruling on December 1, 2009, is considered the trial court’s full, final, and complete judgment, the trial court retains plenary power and has discretion to issue a written 04-10-00109-CV decree that is modified from its oral ruling. Cash v. Cash, No. 03-04-00560-CV, 2005 WL

1787552, at *3 (Tex. App.—Austin 2005, no pet.); Cook v. Cook, 888 S.W.2d 130, 132 (Tex.

App.—Corpus Christi 1994, no writ); Louwien v. Dowell, 534 S.W.2d 421, 422 (Tex. App.—

Dallas 1976, no writ). Thus, the trial court had authority to state in its final written judgment that

Georgia would receive temporary support until January 31, 2010. 2

D. Rights and Duties of the Parents

The jury answered Question No. 1 of the charge by stating Georgia should be the joint managing conservator with the exclusive right to designate the primary residence of the children.

Brian argues that the jury’s answer is not supported by the evidence. We review the jury’s answer under traditional legal and factual sufficiency standards. In re Doe, 19 S.W.3d 249, 253

(Tex. 2000); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). In so reviewing, we keep in mind that the jury is the sole judge of the credibility of witnesses and the weight to be given their testimony. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). Further, we may not substitute our judgment for that of the jury, even if we would reach a different finding based on the evidence. Id.

Brian argues that the evidence is factually insufficient to support the jury’s finding. He emphasizes that the court-appointed social worker, Colette Duciaume Wright, recommended that he be given the right to designate the children’s primary residence. However, while the jury heard the social worker’s recommendation, it also heard her testify that this was the first contested custody case in which she had testified; that she had failed to perform an adequate investigation; that she was unfamiliar with the Family Code’s standard possession order; and that