Opinion issued October 10, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00992-CV ——————————— BRADLEY SCOTT BRANHAM, Appellant V. MELANIE DEE DAVENPORT, Appellee
On Appeal from the County Court at Law Washington County, Texas Trial Court Case No. CCL-6106
MEMORANDUM OPINION
This appeal involves a dispute between former spouses over child custody
and child support payments. In three issues, appellant Bradley Scott Branham
challenges the trial court’s refusal to modify the possessory terms of his divorce decree as he requested, the trial court’s increase of his child support obligation, and
the award of attorney’s fees. We affirm.
Background
Branham, a disabled veteran, and Melanie Dee Davenport divorced in 2010.
They had one child, a daughter, during their marriage. Branham and Davenport
entered into a mediated settlement agreement (“MSA”) on June 16, 2010, which
provided for their respective possessory rights to the child and child support
payments. The MSA was the basis for the terms of their “Agreed Final Decree of
Divorce,” signed by the court on July 1, 2010.
Two months later, Branham filed a petition to modify the parent-child
relationship. Under the terms of the MSA and divorce decree, Branham would
pick up and return the child at Davenport’s residence in Port Lavaca, Texas. In his
petition, Branham sought to modify these terms so that the child could be
exchanged somewhere halfway between Port Lavaca and Branham’s residence,
located 246 miles away from Port Lavaca in Gatesville, Texas. Davenport
responded by filing a counter-petition in which, among other requests, she sought
an increase in Branham’s child-support payments. The trial court held a two-day
hearing on the modification motions in July 2011.
At trial, Branham presented evidence regarding the circumstances that he
believed had materially and substantially changed since he and Davenport entered
2 into the MSA and their divorce became final. He testified that he had moved to
Gatesville on May 30, 2010, only two weeks before entering into the MSA, and so
he had not realized the effect that the long drive between Gatesville and Port
Lavaca would have on him and his daughter. Before the divorce, he had only
made the drive one or two times and would stop at places closer than Gatesville
during his periods of possession. Branham had been diagnosed in May 2010 with
post-traumatic stress disorder, but he did not understand that driving long distances
with PTSD was causing him psychological stress and physical problems, such as
diarrhea, until he received treatment from doctors in December 2010. Branham’s
physical injuries also increasingly caused him pain during the drive. Branham’s
current wife, Kelli Forrester, whom he was seeing in July 2010 and married in
December 2010, also testified that the travel took a toll on Branham, exacerbating
his physical and psychological problems.
The drive to pick up and return the child also became much more expensive
between the divorce and the time of trial, because the price of gas increased by
approximately $1.30 to $1.40 per gallon. According to Branham, he had been
unable to exercise one period of possession with his daughter because he could not
afford to pay for the gasoline.
Davenport disputed Branham’s account that the effects of the drive were a
material and substantial change from circumstances at the time of the divorce, and
3 she questioned Branham’s motivation in seeking the modification. Rather than
moving to Gatesville on May 30, 2010, she testified that Branham had lived in
Gatesville for six months before the divorce. She presented a copy of a text
message Branham had sent her after the divorce in which he told her, “You have
got to be the craziest person I know. . . . Hope your [sic] ready to spend some
money because I’m fixing to take you back to court and take custody of [the child].
Jacked with the wrong guy.”
Davenport indicated that Branham’s testimony concerning his problems
driving was untrustworthy because he had given an implausible story about
moving to Gatesville. Branham stated that he had moved to Gatesville to be closer
to Veterans Benefits Administration hospitals and that his move had nothing to do
with his current wife, a long-time resident of Gatesville, although he began living
with Forrester at the time of the divorce and there were several Veterans Benefits
Administration hospitals and clinics near Port Lavaca and in much closer
proximity to where Branham had lived before moving. Davenport also presented a
video showing that Branham frequently arrives to pick up or drop off the child
with his wife in the passenger seat. Davenport testified that this behavior was
consistent with Branham’s behavior during their marriage when he would always
insist on driving. Davenport admitted on cross-examination, however, that
4 whether he drove or not, Branham would have to spend long periods of time in the
car to exercise his possessory periods with the child.
Regarding her child-support modification request, Davenport presented
evidence of Branham’s income at the time of the divorce and at the time of the
motion for modification. According to a Veterans Benefits Administration letter
dated May 18, 2010, as an unemployable veteran with two dependents, Branham
received a monthly payment of at least $2,932 since 2009. Davenport argued that
Branham’s obligation to pay $422 per month in child support based on this income
was less than the statutory child-support guideline, which would have been $586.
See TEX. FAM. CODE ANN. § 154.125 (West Supp. 2012) (providing that the court
shall presumptively order that an obligor pay 20% of monthly net resources in
child support for one child).
To demonstrate that Branham’s income had increased, Davenport introduced
a copy of Branham’s bank account statement from June 2011. The statement
reflected that the Veterans Benefits Administration made two deposits into
Branham’s account that June for $3,007 and $1,149, totaling $4,156. She
presented another statement from a few weeks before trial showing that Branham
had transferred $727 from his personal account into his joint account with
Forrester, which Davenport believed was an attempt to hide his income.
5 Davenport testified that she had seen other bank statements showing that Branham
received more than $3,000 per month from the Veterans Benefits Administration.
In discovery before the hearing, Davenport had requested four months of
bank account statements, but Branham provided her with only four statements.
Davenport explained that during her marriage to him, she had often seen Branham
engaging in work to earn additional income. Finally, she introduced a message
Branham posted on Facebook the day after the MSA was executed, stating that
“out of almost $5,000 a month in income, she only got $422 a month.”
Branham attempted to refute Davenport’s testimony, explaining that the
June deposits were unusually large because the $1,149 reflected a back payment
owed to him. He said his benefits had decreased when he divorced Davenport
because she was no longer his dependent spouse. The benefits then increased
when he married Forrester, adding her and her daughter as dependents, but it took
the Veterans Benefits Administration several months to increase his benefits to the
new amount, and so the administration made a lump payment of $1,149 in June for
those months when he had not received benefits for his dependents. Branham said
he was not engaged in any other employment, either sporadic or otherwise,
because his veteran benefits were based on being unemployed. He testified that
veteran benefits are his only source of income, which only amount to $3,007
monthly.
6 The trial court found that there had been a material and substantial change of
circumstances with respect to the child support requested by Davenport, and it
ordered Branham to pay $750 per month in child support. The trial court did not
change the terms of the original divorce decree providing that Branham had to pick
up and drop off the child at Davenport’s residence. Finally, the trial court ordered
Branham to pay $5,000 of Davenport’s attorney’s fees. In pertinent part, the trial
court found that:
7. At the time of trial the child was approximately 6 weeks shy of turning three (3) years of age.
8. The agreement already included an increase in [Branham]’s times of access and possession for when the child attains the age of 3 years.
....
11. [Branham]’s testimony and evidence often lacked credibility.
12. [Davenport]’s testimony and evidence were very credible.
13. [Davenport]’s evidence was not sufficient to show any material and substantial changes in circumstances that would give rise to a modification of the agreement in a manner as requested by [Branham] in his pleadings.
14. It would not be in the child’s best interest to modify the [MSA and divorce] agreement as requested by [Branham]. . . .
20. The prior agreement required [Branham] to pay $442.60 per month to [Davenport] for support of the child.
21. [Davenport] proved that since the mediated settlement agreement, circumstances of the parties and the child had changed which warranted an increase in [Davenport]’s periodic monthly support to $750.00 per month. 7 22. The increase in [Branham]’s child support payments to $750.00 per month is in the child’s best interest. . . .
29. [Davenport]’s attorney proved up reasonable and necessary attorney’s fees and costs in excess of $5,000.00 incurred by [Davenport] in behalf of the child in connection with this suit.
Branham then filed this timely appeal. On appeal, he argues that the trial
court abused its discretion in failing to modify the terms of possession, increasing
his child support payments, and awarding $5,000 in attorney’s fees.
Analysis
A trial court has broad discretion in ruling on matters pertaining to child
support and possession, and it will not be reversed absent a clear abuse of
discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Gillespie v.
Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Moreno v. Perez, 363 S.W.3d 725,
735, 737 (Tex. App.—Houston [1st Dist.] 2011, no pet.). A trial court abuses its
discretion when it acts without reference to any guiding rules and principles.
Worford, 801 S.W.2d at 109; McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex.
App.—Houston [1st Dist.] 1999, no pet.). Sufficiency challenges are not
independent points of error in the child-support context, but are relevant factors in
assessing whether a trial court abused its discretion. Bush v. Bush, 336 S.W.3d
722, 729 (Tex. App.—Houston [1st Dist.] 2010, no pet.); see Newberry v. Bohn-
Newberry, 146 S.W.3d 233, 235 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
We employ a two-pronged inquiry in such cases: (1) whether the trial court had
8 sufficient information upon which to exercise its discretion; and (2) whether the
trial court erred in its application of discretion. Moreno, 363 S.W.3d at 735.
If some probative and substantive evidence supports the order, there is no
abuse of discretion. Newberry, 146 S.W.3d at 235. After a bench trial, the trial
court’s findings of fact have the same weight as a jury’s verdict. Brejon v.
Johnson, 314 S.W.3d 26, 30 (Tex. App.—Houston [1st Dist.] 2009, no pet.). In
reviewing a ruling that results from the trial court’s resolution of underlying facts,
we must defer to the trial court’s factual resolutions and any credibility
determinations that may have affected those resolutions, and we may not substitute
our judgment for the trial court’s in those matters. George v. Jeppeson, 238
S.W.3d 463, 468 (Tex. App.—Houston [1st Dist.] 2007, no pet.). In a bench trial,
the trial court is the factfinder and the sole judge of the credibility of the witnesses
and the weight to be given their testimony. See City of Keller v. Wilson, 168
S.W.3d 802, 819 (Tex. 2005)
I. Child custody modification
In his first issue, Branham argues that the trial court abused its discretion in
denying the modification he requested in possessory rights because there was
uncontroverted evidence that circumstances had changed since the execution of the
parties’ MSA. Specifically, Branham notes that he presented evidence of a drastic
increase in gas prices, his realization that his PTSD was causing him increased
9 physical and psychological problems in making long drives, and the child’s
increased agitation during long drives between his home and Davenport’s.
Texas law has imposed “significant hurdles” before a conservatorship order
may be modified. In re A.L.E., 279 S.W.3d 424, 428 (Tex. App.—Houston [14th
Dist.] 2009, no pet.). A trial court may modify an order that provides for the
possession of or access to a child if the modification would be in the child’s best
interest and “the circumstances of the child, a conservator, or other party affected
by the order have materially and substantially changed since the earlier of . . . the
date of the rendition of the order . . . or the date of the signing of a mediated or
collaborative law settlement agreement on which the order is based.” TEX. FAM.
CODE ANN. § 156.101(a)(1) (West Supp. 2012). The best interest of the child shall
always be the primary consideration of the court in determining issues of
conservatorship and possession of and access to the child. TEX. FAM. CODE ANN.
§ 153.002 (West 2008); Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002). The movant
“must show a material and substantial change in circumstances; otherwise, the
petition must be denied.” A.L.E., 279 S.W.3d at 428.
Regarding the terms and conditions of conservatorship, “the trial court is in
the best position to observe the credibility and personalities of the witnesses, and,
consequently, an abuse of discretion does not occur when a trial court bases its
decision on conflicting evidence.” In re R.D.Y., 51 S.W.3d 314, 321 (Tex. App.—
10 Houston [1st Dist.] 2001, pet. denied). In determining whether a material and
substantial change of circumstances has occurred, a trial court is not confined to
rigid or definite guidelines, but makes a fact-specific inquiry according to the
circumstances as they arise. A.L.E., 279 S.W.3d at 428. Other courts have
recognized material changes affecting possession and conservatorship as including
(1) the marriage of one of the parties, (2) poisoning of the child’s mind by one of
the parties, (3) change in home surroundings, (4) mistreatment of the child by a
parent, or (5) a parent becoming an improper person to exercise custody. Id. at
429.
The evidence Branham presented regarding the change in circumstances
surrounding his drive between Gatesville and Port Lavaca was his testimony, and
that of his wife and Davenport. As Branham acknowledged, he had already moved
to Gatesville and made the drive between Gatesville and Port Lavaca before the
MSA and “Agreed Final Decree of Divorce” were signed. He acknowledged that
he already had been diagnosed with PTSD before the divorce. Although he said
that he did not realize the impact his PTSD may be having on his driving until he
consulted doctors in December 2010, he filed his motion for modification of the
possessory periods before that, in September 2010. He also continued to drive on
the trips between Gatesville and Port Lavaca although his wife was able to drive in
his stead. Controverting his explanation that he was seeking increased possessory
11 rights due to problems only with the long drive, Davenport introduced a text
message in which Branham said that he was going to take her to court to seek
custody because he was angry with her. And Davenport testified that Branham had
moved to Gatesville six months before the divorce to be with Forrester,
undermining Branham’s testimony that he had moved to Gatesville only a few
weeks before the divorce to be closer to Veterans Benefits Administration
hospitals.
The trial court, as the factfinder, was the sole judge of the credibility of the
witnesses and was free to give more weight to Davenport’s testimony than
Branham’s. See City of Keller, 168 S.W.3d at 819. Based on the aforementioned
evidence, the trial court had sufficient information to conclude that, while there
may have been some undisputed changes in circumstance such as an increase in the
price of gasoline, the changes Branham described were not material and substantial
changes warranting a modification of the possession order. See, e.g., Zeifman v.
Michels, 212 S.W.3d 582, 594–95 (Tex. App.—Austin 2006, pet. denied) (holding
evidence of child’s change from infant to seven-year-old with academic potential
did not amount to material and substantial change); Considine v. Considine, 726
S.W.2d 253, 255–56 (Tex. App.—Austin 1987, no writ) (movant presented no
evidence of material and substantial change although she had remarried and moved
to Canada). In addition, there was no showing that Branham’s requested
12 modification was in the best interest of the child. See TEX. FAM. CODE ANN.
§ 153.002; Lenz, 79 S.W.3d at 14. Accordingly, Branham has not shown that the
trial court abused its discretion with respect to his requests for modification, and
we overrule his first issue.
II. Child support modification
In his second issue, Branham contests the trial court’s increase in his child
support obligation. A court may modify an order that provides for the support of a
child if “the circumstances of the child or a person affected by the order have
materially and substantially changed since . . . the date of the order’s rendition . . .
or the date of the signing of a mediated or collaborative law settlement on which
the order is based.” TEX. FAM. CODE ANN. § 156.501(a)(1) (West 2011). In
determining whether a modification of support is necessary, the trial court is to
examine and compare the circumstances of the parents and the child at the time of
the initial order with the circumstances existing at the time modification is sought.
London v. London, 192 S.W.3d 6, 15 (Tex. App.—Houston [14th Dist.] 2005, pet.
denied); Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.]
1993, writ denied). The record must contain both historical and current evidence
of the relevant person’s financial circumstances, because without both sets of data,
the court has nothing to compare and cannot determine whether a material and
substantial change has occurred. London, 192 S.W.3d at 15.
13 The requesting party bears the burden to show the requisite change in
circumstances. Rumscheidt v. Rumscheidt, 362 S.W.3d 661, 666–67 (Tex. App.—
Houston [14th Dist.] 2011, no pet.). The party’s financial ability to pay child
support does not depend solely on current earnings, but extends to all sources that
might be available. Id.; see also TEX. FAM. CODE ANN. § 154.062 (in calculating
net resources for child support, court may look at all income actually being
received). The trial court is not required to accept the child-support obligor’s
evidence of income as true, but instead it may properly determine that an obligor
has higher net resources based on testimony by the obligee and other evidence in
the record. In re N.T., 335 S.W.3d 660, 666 (Tex. App.—El Paso 2011, no pet.).
The trial court’s findings must be supported by a preponderance of the evidence.
TEX. FAM. CODE ANN. § 105.005.
Davenport presented evidence that Branham was receiving $2,932 in
monthly income at the time of the divorce, and that his income had materially and
substantially increased since then. She introduced a bank statement showing that
Branham received $4,156 in June 2011 from the Veterans Benefits Administration.
Branham testified that the $4,156 was not his regular income, as that amount
included a non-recurring back payment for his dependents.
But other evidence before the trial court undermined his credibility.
Davenport testified that she had requested four-months’ worth of bank statements
14 but Branham only provided four statements, one of which was merely a transfer
payment. Davenport introduced the statement showing a $727 transfer from
Branham’s account to his joint account with Forrester. Davenport testified that
Branham had said these transfers were for when he would purchase items such as
groceries for the family, and Forrester would reimburse him. But the transfer
showed that the money was moving from Branham’s account to the joint account
with Forrester, contradicting Branham’s statement. Davenport also introduced a
message Branham posted to Facebook in which he said, “out of almost $5,000 a
month in income, she only got $422 a month.”
Deferring to the trial court’s determination that Branham was not credible
while Davenport was, we conclude that this evidence was sufficient to support a
conclusion that there had been a material and substantial change in Branham’s
income to justify a modification in child support. The trial court increased the
amount of monthly child support to $750. Under the Family Code, the trial court
shall presumptively order a child support provider to pay 20% of his monthly net
resources for one child. See TEX. FAM. CODE ANN. § 154.125. Assuming it
applied this presumption, the trial court impliedly found that Branham had monthly
net resources of $3,750, which is less than Branham’s claim of $5,000 in monthly
income and also less than the $4,156 monthly income reflected in the June 2011
bank statement. $3,750 would also roughly correspond to the amount Branham
15 acknowledged he received in July 2011, when his income included $3,007, plus the
amount of his transfer payment of $727.
Branham contends that “there is a glaring inconsistency” in the court’s
findings that the increase in his income was a material and substantial change in
circumstances but that his increased fuel expense was not a material and
substantial change in circumstances for purposes of the terms of possession.
Branham argues that the court “found that the fact that [he] was incurring $400.00
to $600 per month in additional travel expenses to exercise possessory rights was
not a material and substantial change in [his] circumstances.” However, the trial
court made no finding of fact regarding Branham’s travel expenses. The court
found that Branham’s “testimony and evidence often lacked credibility.” As we
have explained, we defer to the trial court’s factual resolutions and credibility
determinations. We see no glaring inconsistency in the trial court’s resolution of
the factual questions pertaining to the change in Branham’s financial
circumstances.
Accordingly, we hold that the trial court did not abuse its discretion in
increasing Branham’s monthly child support obligation. We overrule Branham’s
second issue.
16 III. Attorney’s fees
In his third issue, Branham argues that “because the trial court erred in
denying his requested modification and granting Davenport’s requested
modification, it acted arbitrarily or unreasonably or without regard to any guiding
rules of [sic] principles, and the issue of attorney’s fees should be remanded for
reconsideration.” The Family Code authorizes the trial court to award reasonable
attorney’s fees in a suit affecting the parent-child relationship. See TEX. FAM.
CODE ANN. § 106.002 (West 2008). We review the award of attorney’s fees for
abuse of discretion. Watts v. Oliver, 396 S.W.3d 124, 132 (Tex. App.—Houston
[14th Dist.] 2013, no pet.); Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996). The
award must be supported by evidence, however, that should include testimony
regarding the hours spent on the case, the nature of preparation, the complexity of
the case, the experience of the attorney, and the prevailing hourly rates. Hardin v.
Hardin, 161 S.W.3d 14, 24 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
The trial court awarded Davenport $5,000 in reasonable and necessary
attorney’s fees. This award was supported by the testimony of Davenport’s
attorney, who requested $31,670 in total fees based on the hours she worked on the
case, the nature of the case, her experience, and the prevailing hourly rates.
Branham does not challenge this testimony or the amount of the $5,000 award—he
challenges the award only on the basis that Davenport should not have prevailed.
17 Because the trial court did not err in its determination of the parties’ modification
requests and Branham does not dispute the amount or reasonableness of the fees
awarded, we conclude that the trial court did not abuse its discretion in awarding
Davenport $5,000 in attorney’s fees. We overrule Branham’s third issue.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale Justice
Panel consists of Justices Keyes, Higley, and Massengale.