Elizabeth M. Trammell v. Fletcher v. Trammell, Sr.

Opinion

ACCEPTED

01-14-00629-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS 4/15/2015 5:08:25 PM CHRISTOPHER PRINE

CLERK

NO: 01-14-00629-CV

IN THE FILED IN 1st COURT OF APPEALS

FIRST COURT OF APPEALS OF TEXAS HOUSTON, TEXAS AT HOUSTON, TEXAS 4/15/2015 5:08:25 PM CHRISTOPHER A. PRINE

Clerk

Elizabeth M. Trammell,

Appellant

v.

Fletcher V. Trammell, Sr.

Appellee

from the 3081h Judicial District Court of Harris County, Texas, The Honorable James Lombardino Presiding Trial Court Case No. 2010-72050

REPLY BRIEF OF THE APPELLANT

Maurice Bresenhan, Jr. Texas Bar No. 02959000 Cynthia Keen Perlman TexasBarNo.11161700 Zukowski, Bresenhan, Sinex & Petry, L.L.P. 11 77 West Loop South, Suite 1100 Houston, Texas 77027 Telephone: (713) 965-9969 Telecopier: (713) 963-9169 Attorneys for Appellant

TABLE OF CONTENTS

Table ofContents ....................................................................... i

Table of Authorities.................................................................. 11

Reply Points .. .. .. .. .. .. .. .. .. . . .. .. .. .. . .. .. .. .. . .. . .. . .. .. .. .. . .. .. .. .. . .. .... 111

Abbreviations ....................................................................... 1v

Summary of the Argument ............................................................ 1

Argument ................................................................................. 2

Prayer ..................................................................................... 13

Certificate of Service .................................................................. 14

Appendix ................................................................................. 15

i

TABLE OF AUTHORITIES

Cases: Page:

City of Pasadena v. Gennedy, 125 S.W. 3d 687, 691 (Tex. App - Hous. [l st Dist.] 2003, pet. denied)...................................................... 4-5

City of San Antonio v. City ofBoerne, 111 S.W.3d 22, 25 (Tex. 2003)... 7

Dunaway v. Dunaway, 2007 Tex. App. LEXIS 8950 *25(Tex. App - Hous. [14th Dist.] 2007, no pet.)......................................................... 4

In re Forlenza, 140 S.W.3d 373, 376 (Tex. 2004). .... .. . ... ... .......... .... 7

Howethinvs., Inc.v. City ofHedwig Vil!., 259 S.W. 3d 877, 888 (Tex. App - Houston [l st Dist.] 2008, pet. denied)........................... 4

In re GE Co., 271 S.W.3d 681 (Tex. 2008).. ...... ... .. .. .. .. . .. ........ ... 6

In re Marriage ofLassmann, 2010 Tex. App. LEXIS 6982 *10 (Tex. App - Corpus Christi 2010, no pet.).................................. 10

In the Interest of CC..!., 244 S.W. 3d 911, 924 (Tex. App-Dallas 2008, no pet.).................................................................. 13

Klumb v. Houston Mun. Emples. Pension Sys., 2015 Tex. LEXIS 266 (Tex. 2015).... .... .. . ... .... ... . . ...... ........... ... .. . . ... . . ....... ......... ..... 7

Moreno v. Perez, 363 S.W. 3d 725, 738 (Tex. App-Hous. [l st Dist.] 2011, no pet.)............................................................ 13

Pharo v. Trice, 711 S.W.2d 282, 284 (Tex. App.-Dallas 1986, no pet.)... 10

Rangel v. Rangel, 2014 Tex. App. LEXIS 9402 *6 (Tex. App-Austin 2014, no pet.)................................................................................. 4

Rumscheidt v. Rumscheidt, 362 S.W. 3d 661, 666 (Tex. App-Hous. [14th Dist.] 2011, no pet.)........................................................... 8

Sterner v. Marathon Oil Co., 767 S.W. 2d 686, 690 (Tex. 1989)............ 5 ii

Statutes and Rules:

Texas Family Code § 14.06(a)(repealed) ........................................... 7

Texas Family Code, chapter 154 .................................................... 6

Texas Family Code, §156.lOl(a)(l) ............................................... 9, 13

Texas Family Code § 154.124 ........................................................ 7

Texas Family Code § 156.401 ........................................................ 6, 9

Texas Family Code§ 156.402 ...................................................... 6, 7, 9

Tex. R. App. P. Rule 38.9 ............................................................ 4

iii

REPLY POINTS

1. Elizabeth clearly challenges the pertinent findings of fact and conclusions of law issued by the District Court in her briefing.

2. Fletcher cannot support the District Court's erroneous grant of relief modifying downward the amount of Fletcher's child support obligations as he failed to produce any evidence or sufficient evidence that the change is in the children's best interest and that there was a material and substantial change in the children's or his circumstances.

3. Fletcher cannot support the District Court's erroneous grant of relief that gives Fletcher the right, subject to the agreement of the other parent conservator, to make decisions concerning the children's education as he failed to produce any evidence or sufficient evidence that the change is in the children's best interest and that there was a material and substantial change in the children's or his circumstances.

4. Fletcher cannot support the District Court's erroneous grant of relief that gives Fletcher the right, subject to the agreement of the other parent conservator, to consent to medical, dental and surgical treatment involving invasive procedures concerning the children as he failed to produce any evidence or sufficient evidence that the change is in the children's best interest and that there was a material and substantial change in the children's or his circumstances.

5. Fletcher cannot support the District Court's erroneous grant of relief that gives Fletcher the right, subject to the agreement of the other parent conservator, to consent to psychiatric and psychological treatment of the children as he failed to produce any evidence or sufficient evidence that the change is in the children's best interest and that there was a material and substantial change in the children's or his circumstances.

iv

ABBREVIATIONS

CR-xx Clerk's Official Record --page numbers

RR-xx Reporter's Record -- page numbers

FF Findings of Fact

CL Conclusions of Law

For the convenience of the Court, Appellant, ELIZABETH M. TRAMMELL, will be referred to as "Elizabeth," Appellee, FLETCHER V. TRAMMELL, SR., will be referred to as "Fletcher," and the children will be referred to collectively as "the children".

v

NO: 01-14-00629-CV

IN THE

FIRST COURT OF APPEALS OF TEXAS AT HOUSTON, TEXAS

Elizabeth M. Trammell,

Appellant

v.

Fletcher V. Trammell, Sr.

Appellee

REPLY BRIEF OF THE APPELLANT

On Appeal from the 3081h Judicial District Court of Harris County, Texas

TO THE HONORABLE JUDGES OF THE FIRST COURT OF APPEALS:

Appellant Elizabeth M. Trammell ("Elizabeth") replies to the Original Brief

filed by Appellee Fletcher V. Trammell, Sr. ("Fletcher") as follows:

SUMMARY OF THE ARGUMENT

This case involves an Order in Suit to Modify Parent-Child Relationship,

entered on June 30, 2014, which drastically changed the parties' agreements that

they made in their Agreed Final Divorce Decree, signed May 23, 2011, and the Trial

Court's Decree that approved those agreements and made them the judgment of the

court. Elizabeth appeals the Trial Court's final judgment which drastically modified

2

downward by 55% the amount of child support she receives from Fletcher (her

former husband) and altered Elizabeth's independent right to make educational

decisions, health care decisions and mental health care decisions for the children

made the subject of the suit, all of which modifications are clearly not in the best

interest of the children, and there is insufficient evidence that there was a material

and substantial change in the children's or any conservator's circumstances as

required by the Family Code.

ARGUMENT

The Pertinent Findings of Fact and Conclusions of Law Have Been Clearly Challenged By Elizabeth in her Briefing

Fletcher's brief incorrectly asserts that Elizabeth has not challenged the trial

court's findings of fact that the drastic reduction in child support is in the children's

best interest and that there was a material and substantial change in either their or

Fletcher's circumstances since the divorce.

Fletcher's brief also incorrectly asserts that Elizabeth has failed to challenge

the trial court's findings of fact that the modifications of Elizabeth's exclusive right

to make decisions concerning the children's education is in the children's best

interest and that there was a material and substantial change in either their or

Fletcher's circumstances since the divorce.

3

Likewise, Fletcher's brief incorrectly asserts that Elizabeth has not challenged

the trial court's findings of fact that the modifications of Elizabeth's independent

right to make decisions concerning medical, dental and surgical treatment involving

invasive procedures concerning the children is in the children's best interest and that

there was a material and substantial change in their or Fletcher's circumstances since

the divorce. Finally, Fletcher's brief incorrectly asserts that Elizabeth has failed to

challenge the trial court's findings of fact that the modifications of Elizabeth's

independent right to consent to psychiatric and psychological treatment of the

children is in the children's best interest and that there was a material and substantial

change in either their or Fletcher's circumstances since the divorce.

Quite to the contrary, Elizabeth raised her objections to the trial court's

extensive findings of fact and conclusions of law numerous times throughout her

entire Original Brief, and clearly asserted that Fletcher's evidence is legally and

factually insufficient to demonstrate that the changes granted were in the children's

best interest and that there was a material and substantial change in circumstances.

Moreover, if she had no objections to the trial court's findings, she would not have

moved this Court to require that new, final findings and conclusions of law be issued

since the ones the trial court issued, dated October 3, 2014, are called "Proposed

Findings of Fact and Conclusions of Law." (To this date, Appellant is unsure

4

whether such Findings and Conclusions are final since they are merely "proposed.")

In a case like the instant one where the appellee argues that the findings are

binding on the appellate court since the appellant did not explain which specific fact

findings or legal conclusions the appellant was challenging, the Court held that

"a challenge to an unidentified finding of fact may be sufficient for review if it is included in the argument of the issue or point, of if after giving consideration to the nature of the case, the underlying applicable legal theories, and the findings of fact provided, the specific findings of fact which the appellant challenges can be fairly determined from the argument ....Accordingly, the finding is not binding on this court."

Dunaway v. Dunaway, 2007 Tex. App. LEXIS 8950 *25; 2007 WL 3342020(Tex. App -Houston [14th Dist.] 2007, no pet.).

In another similar case, Rangel v. Rangel, 2014 Tex. App. LEXIS 9402 *6;

2014 WL 4364752(Tex. App - Austin 2014, no pet.), the Court concluded the

appellants did not waive their issues based on inadequate briefing even though the

appellants do not directly set forth particular fact findings or legal conclusions that

they are challenging since, pursuant to Tex. R. App. P. 38.9, the Court is required to

construe the appellants' brief liberally. See also, Howeth lnvs., Inc. v. City of

Hedwig Vil!., 259 S.W. 3d 877, 888 (Tex. App - Houston [1'1 Dist.] 2008, pet.

denied) ("we have ... reviewed the substance of all of their appellate arguments to

determine, as best we can, which fact findings and legal conclusions the

[appellants] have implicitly challenged for each appellate argument."); City of

5

Pasadena v. Gennedy, 125 S.W. 3d 687, 691 (Tex. App - Houston [1st Dist.] 2003,

pet. denied) ("We construe the enforcing parties' challenges to be to the pertinent

fact findings and legal conclusions supporting these aspects of the judgment.");

Sterner v. Marathon Oil Co., 767 S.W. 2d 686, 690 (Tex. 1989) (" ..it is our practice

to construe liberally points of error in order to obtain a just, fair and equitable

adjudication of the rights of the litigants.")

In the event that this Court prefers to have challenges to the specific fact

findings and legal conclusions, Elizabeth objects to the following: FF 19-21, 32, 40,

42-43, 56 (finding that the circumstances have materially and substantially

changed), FF 19, 36, 45, 47, 50-52, 57-60, 63-64 (regarding the best interest of the

children), and CL 3-5.

The common theme of all the above mentioned fact findings and legal

conclusions is that it is all about Fletcher; in other words, the only thing that matters

is what is in the best interest of Fletcher, not of the children. (Note the Trial Court's

proposed findings and conclusions are attached to Appellant's Original Brief at Tab

2.)

For the above reasons, this Court must find that Elizabeth has challenged the

trial court's findings of fact and legal conclusions that the drastic reduction in child

support, the modifications of Elizabeth's exclusive right to make educational

6

decisions concerning the children, and the modifications of Elizabeth's independent

right to make health care decisions and mental health care decisions for the children,

are in the children's best interest and that there was a material and substantial change

in either their or Fletcher's circumstances since the divorce.

Fletcher Has Failed to Produce Sufficient Evidence That the Drastic Reduction in Child Support is in the Children's Best Interest Fletcher's brief, at page 13, incorrectly asserts that the Family Code does not

require that the modification of child support be in the children's best interest. In

support of his argument, he cites Tex. Fam. Code §156.401. However, he is wrong.

In fact, Tex. Fam. Code §156.402 specifically requires that a court may modify an

existing child support order to substantially conform with the guidelines under

Chapter 154 (as the District Court did in FF45), but only if it is in the "best interest of

the child" and there has been a material and substantial change of circumstances.

Tex. Fam. Code §156.402. The applicable statute does not say "the best interest of

another person" or words of like import. The best indicator of the intent of the

Legislature are the words used in the statute. The Trial Court was obligated to begin

with the statutory language to be applied. In discharging that duty, there was no

discretion. In re GE Co., 271 S.W.3d 681 (Tex. 2008.)

The applicable test to modify support downward requires there be a "material

change" which could include Fletcher, but the second step "best interest" is limited

7

to the children.

There is no ambiguity in the language, and the burden is a conjunctive one.

There is no difficulty in determining the Legislature's intent which is determined

from the plain meaning of the statute. City of San Antonio v. City of Boerne, 111

S.W.3d 22, 25 (Tex. 2003). The Trial Court strayed from the Legislature's directive,

and this Court must review that action de nova. In re Forlenza, 140 S.W.3d 373,

376, 47 Tex. Sup. Ct. J. 879 (Tex. 2004); Klumb v. Houston Mun. Emples. Pension

Sys., 2015 Tex. LEXIS 266 (Tex. 2015).

During the time Tex. Fam. Code § 14.06 (a) was in force, parties to a divorce

could enter into enforceable contracts regarding the payment of child support.

Courts and parties soon realized the pernicious effect of such agreements and how

such agreements interfered with the ability of Courts to act in the best interest of

children under their jurisdiction. Next came the cases recognizing contract

enforcement but overriding that principle through the creation of an evolving

common law. IBtimately, the Legislature passed §154.124 and §156.402 that

allowed contracts regarding child support but that precluded enforcement as a

contract. The trade-off to preserve the parties' expectations in entering into

agreements far in excess of guidelines was to make a change be dependent on a

showing that the change must be in the best interest of the child. This Legislative

8

hurdle is designed and intended to prevent just the shenanigans Fletcher would have

this Court adopt.

As stated in the Original Brief filed by Elizabeth, the finding that a drastic

55% reduction in child support is in the best interest of the children is not supported

by the evidence. Further, Fletcher was unable to answer the question yes or no as to

whether it is in the best interest of the children to provide them with less support.

(RR 88.) The record should allow this Court to find evidence that three years after

$6,000 per month in child support was in the best interest of the children, now only

$2,565 per month is in their best interest. It does not.

It is undisputed that the child support order in the Agreed Final Divorce

Decree, agreed to by Fletcher, went way beyond the guidelines, and the agreed-to

amount of support was deemed to be in the best interest of the children by the

parties. Following the divorce, the Family Code requires that any modification must

be proved to be in the children's best interest. See, Rumscheidt v. Rumscheidt, 362

S.W. 3d 661, 666 (Tex. App- Houston [14th Dist.] 2011, no pet.) where the Court,

affirming there was no material change in circumstances, held that "[t]he best

interest of the child is always the trial court's primary consideration in determining

questions of child support".

Moreover, in his brief, Fletcher disingenuously claims that Elizabeth should

9

be required to obtain her own employment. Yet at the time of their divorce, he

clearly intended for her to be a stay at home mom to take care of the children, and the

parties structured the divorce decree to reflect that decision. Now he is criticizing her

for his own breach of their contract. This is another example of the only

consideration that must be taken into account is what is best for him.

There is no evidence in the record to support that a 55o/o reduction in child

support would be in the best interest of the children.

Fletcher Has Failed to Produce Sufficient Evidence That There Was a Material and Substantial Change in His or the Children's Circumstances Requiring the Drastic Reduction in Child Support Again, the Family Code requires that Fletcher produce legally sufficient

evidence that the circumstances of a child or person affected by the order have

materially or substantially changed since the order, and that the requested and

ordered change be in the best interest of the children. Tex. Fam. Code §156.101

(a)(l), 156.401 and 156.402. Fletcher's brief, at page 7, incorrectly asserts that the

evidence supports a material and substantial change due to his alleged decline in

income as a personal injury trial lawyer.

During his testimony, Fletcher admits that he publicizes on his firm's website

for his professional corporation, Trammell, P.C., that he has won big verdicts. (RR

89.) The website states, in part, that "Fletch is one of the top trial lawyers in

10

America. In the past five years he has won over $1.7 billion in trial judgments

against major pharmaceutical manufacturers, on top of hundreds of millions more in

pre-trial settlements. His $1.2 billion jury verdict against Johnson & Johnson in

2012 was the highest judgment of any kind in America that year." See copies of

pages from his website attached hereto as Tab 1 of the Appendix. Presumably, the

snapshot of Fletcher's salary decline over the last two or three years took place while

he was an employee at a prior law firm; at this point in time, it appears that Fletcher

presently owns his own law firm, Trammell, P .C., and is one of the top trial lawyers

in America.

In numerous cases, courts have found that they may take a parent's earning

potential into account when determining the amount of child support the parent must

pay. "The duty to support is not limited to a parent's ability to pay from current

earnings, but extends to his or her financial ability to pay from any and all sources

that might be available." In re Marriage ofLassmann, 2010 Tex. App. LEXIS 6982

*10; 2010 WL 3377773 (Tex. App - Corpus Christi 2010, no pet.) citing Pharo v.

Trice, 711 S.W.2d 282, 284 (Tex. App.-Dallas 1986, no pet.)

Based on the evidence in this case, the trial court abused its discretion in its

judgment that a drastic reduction in child support is in the best interest of the

children and there has been a material and substantial change of circumstances, and

11

in this regard, should be reversed.

Fletcher Has Failed to Produce Sufficient Evidence That the Modifications Of Elizabeth's Rights to Make Educational, Health Care, and Mental Health Care Decisions for the Children Are In the Children's Best Interest and That a Material and Substantial Change in Circumstances Has Occurred Fletcher's testimony supporting his request to alter the agreed rights awarded

to Elizabeth, when distilled to their essence, is simply that "I would like to have

these rights" or "just because". During his testimony, Fletcher admits numerous

times that he has no criticism of the way Elizabeth has handled the decisions she has

made, namely, that he is not saying that Elizabeth has made bad decisions per se (RR

71), that the children have all been at St. Mark's as long as they have gone to school

and they like it (RR 56), he has no criticism of Elizabeth about any educational

decision that she has made or can name any decision where he would have made a

better decision (RR 99), that he has no criticism of Elizabeth about any medical, e:::

dental, surgical, psychiatric and psychological decision that she has made or can

name any decision where he would have made a better decision (RR 99), that he has

no issue with St. Mark's (RR 99), that his children are exemplary students (RR 99),

that Elizabeth has consistently made good decisions (RR 100), that he ceded that

decision-making power to Elizabeth at the time of the divorce (RR 99), that he is not

here to criticize Elizabeth (RR 101), and that he believes that Elizabeth has the best

interest of the children at heart (RR 103.)

12

It is clear that since the children are thriving and doing well, and in the past,

Fletcher had no input into these matters, then there is no reason to believe that it

would be in the children's best interest to make any changes in these custodial

arrangements now. Moreover, Elizabeth points out that the parties are unable to

communicate other than possibly by email. She explains in her testimony:

Q. But you have since 2011, you sent him an email saying, Hey. She is in soccer?

A. No. Actually it's not right. Well, let me finish my sentence. Occasionally when he used to - he no longer comes up to the door to get the children, but there were times when we discussed things outside in the yard.

Q. So you do have the ability when you want to --

A. Well-

Q. -- to visit with him about --

A. No. I don't.

Q. Okay.

A. Not anymore. We don't talk.

[RR 116.]

In a case like the instant one, the Court found that

"the evidence in the record as to the parties' inability to reach shared decisions and Father's testimony as to his unwillingness to communicate other than by email supports the trial court's ruling that it would be in the best interest of the children for Mother to have final decision-making authority with respect to educational matters. "

13

In the Interest of CC J, 244 S.W. 3d 911, 924 (Tex. App- Dallas 2008, no pet.)

Moreover, the law is clear in Texas that when a court modifies terms and

conditions of an order concerning conservatorship, possession, and access

concerning a child, "the record must contain evidence in support of the terms of the

modification-a bare recitation in the court's order that such modification is in the

children's 'best interest' is not enough."Moreno v. Perez, 363 S.W. 3d 725, 738

(Tex. App - Houston [1st Dist.] 2011, no pet.)

Clearly, the terms and conditions of conservatorship should not be modified

in this case since there is insufficient evidence that the modifications would be in the

best interest of the children and that the circumstances of the children or conservator

have "materially and substantially changed" since the rendition of the order. Tex.

Fam. Code §156.101 (a)(l).

Fletcher's evidence in support of the desired changes was, in each instance,

legally and factually insufficient. Accordingly, the Trial Court's Order in Suit to

Modify Parent-Child Relationship, entered on June 30, 2014, in favor of Fletcher

was an abuse of discretion.

PRAYER

Appellant Elizabeth M. Trammell prays that this Court grant all requested

relief including, without limitation, that this Court reverse the Order in Suit to

14

Modify Parent-Child Relationship, render a judgment in favor of Elizabeth and deny

all relief requested by Fletcher to modify the parent-child relationship.

Elizabeth further prays that the Court grant her all whole, partial, general,

specific, legal, equitable, statutory or other available relief.

Respectfully submitted,

ZUKOWSKI, BRESENHAN, SINEX & PETRY, L.L.P.

Isl Maurice Bresenhan, Jr. MAURICE BRESENHAN, JR. State Bar No. 02959000 CYNTHIA KEEN PERLMAN State Bar No. 11161700 1177 West Loop South, Suite 1100 Houston, Texas 77027 (713) 965-99691(713) 963-9169 (Fax)

CERTIFICATE OF SERVICE

I hereby certify service of a true and correct copy of this Appellant's Reply Brief on April 15, 2015 as follows:

Sallee S. Smythe 800 Jackson Street Richmond, Texas 77469 VIA EMAIL smyth.sallee@gmail.com

Isl Maurice Bresenhan, Jr.

15

NO: 01-14-00629-CV

INTHE

FIRST COURT OF APPEALS OF TEXAS AT HOUSTON, TEXAS

ELIZABETH M. TRAMMELL, Appellant

v.

FLETCHER V. TRAMMELL, SR.

Appellee

Appendix

Tab Document

1 pages from firm website of Trammell, P.C.

2 Texas Family Code§ 156. lOl(a)(l)

3 Texas Family Code §156.401

4 Texas Family Code § 156.402

5 Texas Family Code §154.124

Co-

TABl

Fletch Trammell, Top Trial Lawyer - Trammell PC Page 1 of3

Our Lawyers

Our Lawyers Fletch Trammell Fletch is one of the top trial lawyers in America. In the past five years he has won over $1. 7 billion in trial judgments against major pharmaceutical manufacturers, on top of hundreds of millions more in pre-trial settlements. His $1.2

billion jury verdict against Johnson & Johnson in 2012 was the highest judgment of any kind in America that year.

In addition to representing individuals and their families against major international drug companies, Fletch has been retained by several State Attorneys General to prosecute those companies' violations of State fraud and consumer protection laws. Fletch's

http://trammellpc.com/lawyers/ . 4/10/2015

Fletch Trammell, Top Trial Lawyer - Trammell PC Page 2 of3

trial victories on behalf of States are some of the highest judgments of their kind in the history of American jurisprudence.

Fletch is involved in every aspect of Trammell PC's cases. Fletch knows that each client's case involves that client's one and only opportunity to be heard in court. Trammell PC makes that opportunity count.

Fletch is consistently voted in as a Super Lawyer by his peers. He is licensed with the State Bars of Texas and New York and admitted to practice before multiple State and Federal Courts across the Country.

Education and Admissions • University of Mississippi. EBA 1997 South Texas College of Law, J.D. Magna Cum Laude, 2003 National Moot Court Champion, 2003 South Texas Law Review Order of the Barristers Dean's List · Multiple American Jurisprudence Awards • Langdell Scholar Professional Affiliations State Bar of Texas

http://trammellpc.com/lawyers/ 4/10/2015

Fletch Trammell, Top Trial Lawyer - Trammell PC Page 3 of3

• New York State Bar American Association for Justice

http://trammejlpc.com/lawyers/ 4/10/2015

TAB2

378

§ 156.006 PARENT-CHILD RELATIONSHIP Note 9 Title s cy concerning former wife's custody of logical father's motion to modify visitatiori child was a finding only necessary in a conservatorship, and child support as t~ terriporary order, and order contemplated out-of-wedlock child were not subject to a further hearing after psychological coun- interlocutory appeal; motion to modify seling had been obtained. In re Blevins Added b parent-child relationship was suit affecting Acts 19S (App. 6 Dist. 2004) 2004 WL 911317, Un- parent-child relationship, and statute proreported , rehearing overruled, review de- 1390, § vided that temporary orders entered in nied. Child Custody *" 902 suit affecting parent-child relationship . 2001; A

were not subject to interlocutory appeal.

Leg., ch.

Temporary orders entered on mother's motion concerning child's residency, visi- Pina v. Shaw (App. 1 Dist. 2004) 2004 WL Sept. 1, tation rights and allegations of sexual abuse by step-father in proceeding on bio- wedlock = 306096, Unreported. Children Out-of-

20.11

Acts 19 subsec. (< .provision

SUBCHAPTER B. MODIFICATION OF CONSERVATORSHIP, deleted f, POSSESSION AND ACCESS, OR DETERMINATION OF redesigna RESIDENCE added su!

74th Leg.

§ 156.101. Grounds for Modification of Order Establishing Conser- "the re aging co1

vatorship or Possession and Access the welfa1 Acts 19

(a) The court may modify an order that provides for the appointment sec. (b), of a conservator of a child, that provides the terms and conditions of . substitute conservatorship, or that provides for the possession of or access to a Section child if modification would be in the best interest of the child and: · 1390 pro> ''The cl

(1) the circumstances of the child, a conservator, or other party 102.003, affected by the order have materially and substantially changed since 107.014(a 156.006(b

the earlier of: . by this A< (A) the date of the rendition of the orde,r; or the paren after the

(B) the date of the signing of a mediated or collaborative law this Act. settlement agreement on which the order is based; date of th effect on

(2) the child is at least 12 years of age and has expressed to the the forme that purpc

court in chambers as provided by Section 153.009 the name of the Acts 201

person who is the child's preference to have the exclusive right to the sectior designate the primary residence of the child; or "(a) Th< designates

(3) the conservator who has the exclusive right to designate the a child of' primary residence of the child has voluntarily relinquished the pri- "(1) the mary care and possession of the child to another person for at least six managing months. vator, or c have mate

(b) Subsection (a)(3) does not apply to a conservator who has the since the C and

exclusive right to designate the primary residence of the child and who "(2) the

has temporarily relinquished the primary care and possession of the · managing child to another person during the conservator's military deployment, improvem<

379

MODIFICATION § 156.101 Ch. 156

visitation, military mobilization, or temporary military duty, as those terms are ?Ort as to defined by Section 153.701. subject to to modify Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995. Amended by t affecting Acts 1995, 74th Leg., ch. 751, § 47, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. :atute pro- 1390, § 16, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1289, § 5, eff. Sept. 1, !ntered in 2001; Acts 2003, 78th Leg., ch. 1036, § 19, eff. Sept. 1, 2003; Acts 2009, 8lst !lationship Leg., ch. 727, § 3, eff. Sept. 1, 2009; Acts 2009, 81st Leg., ch. 1113, § 28, eff. ry appeal. Sept. 1, 2009; Acts 2009, 81st Leg., ch. 1118, § 3, eff. Sept. 1, 2009. I 2004 WL o Out--of- Historical and Statutory Notes Acts 1995, 74th Leg., ch. 751 designated "(b) The court may modify an order that subsec. (a) and therein, in the introductory designates a sole managing conservator of provision, inserted "of a child of any age"; a child 10 years of age or older if:

P, deleted former subd. (2); as designated, "(1) the child has filed with the court in redesignated subsec. (a)(3) as (a)(2); and writing the name of the person who is the added subsec. (b). As added by Acts 1995, child's choice for managing conservator; 74th Leg., ch. 20, former subd. (2) read: . and "the retention of the present sole man- "(2) the court finds that the appoint-

Conser- aging conservator would be injurious to ment of the named person is in the best the welfare of the child; and" interest of the child."

Acts 1999, 16th Leg., ch. 1390, in sub- Acts 2003, 78th Leg., ch. 1036 in the oinf- 'ent sec. (b), in the introductory paragraph, introductory paragraph deleted ''or porlitic . of substituted "10" for "12". tion of a decree" following "modify and cess to a Section 51(c) of Acts 1999, 76th., ch. order"; rewrote subsec. (1); in subsec.

1390 provides: (2), substituted "person" for "conservator"

rild and: and "designate" for "determine"; and in ''The changes in law made to Sections subsec. (3) substituted "designate" for "esier party 102.003, 105.00l(b) and (d), 107.0135, tablish". The former subsec. (1) read:

107.014(a), 107.015, 153.008, 153.434, sed since 156.006(b), and 156.lOJ(b), Family Code, "the circumstances of the child, a conby this Act apply only to a suit affecting servator, or other party affected by the the parent-child relationship filed on or order have materially and substantially after the effective date [Sept. l, 1999] of changed since the date of the rendition of 1tive law this Act. A suit filed before the effective the order;"

date of this Act is governed by the law in Section 23(g) of Acts 2003, 78th Leg., effect on the date the suit was filed, and ch. I 036 provides: the former law is continued in effect for "(g) The changes in law made by this od to the that purpose.'' Act to Sections 156.101, 156.102(a) and rre of the Acts 2001, 77th Leg., ch. 1289 rewrote (b), and 156.401(a), Family Code, apply right to the Section, which formerly read: only to an action to modify an order in a "(a) The court may modify an order that suit affecting the parent-child relationship designates a sole managing conservator of pending on the effective date [Sept. 1, mate the 0 a child of any age if: 2003] of this Act or filed on or after that l the pri- date."

"(1) the circumstances of the child, sole t least six managing conservator, possessory conser- Acts 2009, Slst Leg., ch. 727 inserted vator, or other party affected by the order subsec. (a) designator at the beginning of have materially and substantially changed the section; and added subsec. (b). since the date of the rendition of the order; Section 7 of Acts 2009, 8 lst Leg., ch.

1has the and 727 provides:

and who "(2) the appointment of the new sole "The changes in law made by this Act m of the managing conservator would be a positive apply to a suit affecting the parent-child Jlo: nt, improvement for the child. relationship that is pending in a trial court

TAB3

437

§ 156.401

SUBCHAPTER D. MODIFICATION OF POSSESSION OF OR ACCESS TO CHILD [REPEALED]

156.301 to 156.304. Repealed by Acts 2001, 77th Leg., ch. 1289, § 12(2), eff. Sept. 1, 2001

Historical and Statutory Notes 'I Repealed§§ 156.301 to 156.304, provid- V.T.C.A., Family Code §§ 14.033(0), ;ng for the modification of possession of or 14.08(c)(3). access to a child, were derived from: Acts 1995, 74th Leg., ch. 20, § 1.

Acts 1983, 68th Leg., p. 2354, ch. 424, Acts 1995, 74th Leg., ch. 602, § 1.

§ 9. Acts 1999, 76th Leg., ch. 62, § 6.21. Acts 1987, 70th Leg., ch. 739, § 1. Acts 1999, 76th Leg., ch. 178, § 10. Acts 1989, 71stLeg., ch. 617, § 4. Acts 1999, 76th Leg., ch. 1390, Acts 1993, 73rd Leg., ch. 766, § 10. § 17(a).

SUBCHAPTER E. MODIFICATION OF CHILD SUPPORT

156.401. Grounds for Modification of Child Support (a) Except as provided by Subsection (a-1), (a-2), or (b), the court may modify an order that provides for the support of a child, including ·an order for health care coverage under Section 154.182, if:

(1) the circumstances of the child or a person affected by the order have materially and substantially changed since the earlier of:

(A) the date of the order's rendition; or (B) the date of the signing of a mediated or collaborative law settlement agreement on which the order is based; or (2) it has been three years since the order was rendered or last 1 modified and the monthly amount of the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines. (a-1) If the parties agree to an order under which the amount of child support differs from the amount that would be awarded in accordance rG with the child support guidelines, the court may modify the order only if the circumstances of the child or a person affected by the order have ch. materially and substantially changed since the date of the order's · rendition.

(a-2) A court or administrative order for child support in a Title IV-D case may be modified at any time, and without a showing of material and substantial change in the circumstances of the child or a person affected by the order, to provide for medical support of the child if the ,_:;-

order does not provide health care coverage as required under Section 154.182.

438

§ 156.401 PARENT-CHILD RELATIONSHIP Title

(b) A support order may be modified with regard to the amount support ordered only as to obligations accruing after the earlier Sec

( 1) the date of service of citation; or 916 p: (2) an appearance in the suit to modify. "Th

(c) An order of joint conservatorship, in and of itself, does constitute grounds for modifying a support order.

(d) Release of a child support obligor from incarceration is a material :· and substantial change in circumstances for purposes of this section if .·, ' the obligor' s child support obligation was abated, reduced, or suspended · during the period of the obligor' s incarceration. Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995. Amended by ;C:i Acts 1997, 75th Leg., ch. 911, § 16, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch.·· .. ·. 43, § 1, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1036, § 21, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 916, § 19, eff. June 18, 2005; Acts 2007, 80th Leg., ch. 363, § 6, eff. Sept. 1, 2007; Acts 2007, 80th Leg., ch. 972, § 15, eff. Sept. 1, 2007; Acts 2011, 82nd Leg., ch. 508 (H.B. 1674), § 3, eff. Sept. 1, · 2011; Acts 2013, 83rd Leg., ch. 742 (S.B. 355), § 5, eff. Sept. 1, 2013, Ac1 (b) ir

Historical and Statutory Notes Acts 1997, 75th Leg., ch. 911, in subsec. Acts 2003, 78th Leg., ch. 1036 rewrote (a), designated subd. (1) and added subd. subsec. (a)(l) which prior thereto read:. (2). "(1) the circumstances of the child or a · "(c

Section 98(b) and (c) of Acts 1997, 75th person affected by the order have materirel at

Leg., ch. 911 provides: ally and substantially changed since the terni

"(b) The change in law made by this Act date of the order's rendition; or" port does not affect a proceeding under the Section 23(g) of Acts 2003, 78th Leg., Family Code pending on the effective date ch. 1036 provides: [Sept. 1, 1997] of this Act. A proceeding "(g) The changes in law made by this pending on the effective date of this Act is Act to Sections 156.101, 156.102(a) and governed by the law in effect at the time (b), and 156.401(a), Family Code, apply the proceeding was commenced, and the only to an action to modify an order in a, former law is continued in effect for that suit affecting the parent-child relationship purpose. pending on the effective date [Sept. 1, "(c) The enactment of this Act does not 2003] of this Act or filed on or after that by itself constitute a material and substan~ date." men tial change of circumstances sufficient to Section S(c) of Acts 2003, 78th Leg., ch. befo warrant modification of a court order or 1262 provides: only portion of a decree that provides for the "(c) The change in law made by this Act · enfc support of or possession of or access to a 1 d ter child entered before the effective date of does not by itself constitute a materia an substantial change of circumstances under this Act.'' Section 156.401, Family Code, sufficient to Acts 1999, 76th Leg., ch. 43, added sub- warrant modification of a court order or a Chil

sec. (d). portion of a decree that provides for the Section 2 of Acts 1999, 76th Leg., ch. 43 support of a child rendered before th~ Con provides: effective date [Sept. I, 2003] of this Act.

"This Act takes effect September 1, Acts 2005, 79th Leg., ch. 916 subsec. (a), 1999, and applies to a child support order in the introductory paragraph, insert~d entered before, on, or after that date." "(a-1) or "; added subsec. (a-1); and m

TAB4

478

~ ;:.

§ 156.401 PARENT-CHILD RELATIONSHJp Note 50 MODIJF

Title 5 Ch. 156 probative and substantive evidence to sup- amount of child support payments failed Child SU] ' port trial court's ruling, then there is no to demonstrate that current income of di- Corn abuse of discretion. Tucker v. Tucker vorced husband was greater than it was (App. 4 Dist. 1995) 908 S.W.2d 530, re- when amount of child support was I~st Find hearing denied, writ denied. Child Sup- fixed, Court of Civil Appeals would assume port<= 555 that it remained unchanged. Willis v. Wil- Part Where divorced wife on appeal by di- lis (Civ.App. 1968) 425 S.W.2d 696. Child vorced husband from order increasing Support<= 555 Court-01 F'

Modific2

§ 156.402. Effect of Guidelines c, (a) The court may consider the child support guidelines for single and :Ii;, ,· f

multiple families under Chapter 154 to determine whether there has Famil

been a material or substantial change of circumstances under this w. Paui chapter that warrants a modification of an existing child support order if the modification is in the best interest of the child.

(b) If the amount of support contained in the order does not substan- Child WestL

tially conform with the guidelines for single and multiple families under Chapter 154, the court may modify the order to substantially conform with the guidelines if the modification is in the best interest of the child. ALR Lil A court may consider other relevant evidence in addition to the factors 34 N listed in the guidelines. Chi cur

Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995. Amended by den Acts 1999, 76th Leg., ch. 62, § 6.22, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. Chi 556, § 12, eff. Sept. 1, 1999. 39 Al f-~ Obi t:'"

r.o,

Ter r~:

Historical and Statutory Notes for

Acts 1999, 76th Leg., ch. 62, in subsec. tence, inserted "for single and multiple (a), substituted "154" for "153".

' Aw

families under Chapter 154". 89 Al ,.

Acts 1999, 76th Leg., ch. 556, in subsec. Prior Laws: di ti (a), substituted "for single and multiple as Acts 1989, 71st Leg., ch. 617, § 6.

families under Chapter 154" for "in Chap- for Acts 1993, 73rd Leg., ch. 798, § 6.

ter 153"; in subsec. (b), in the first sen- V.T.C.A., Family Code§ 14.056(a), (b). Encycl< ,.

., 1 Arr

Texas Annotated Code Series References in Child support guidelines, .;.

' tio· '

Additional factors for court to consider, Sampson & Tindall's Texas Family Code, 17 A Family§ 154.123. Wi Agreement concerning support, Sampson & Tindall' s Texas Family Code, Family 37 A § 154.124. for Application of guidelines rebuttably presumed in best interest of child, Sampson & Tindall's Texas Family Code, Family§ 154.122.

Application of guidelines to additional net resources, Sampson & Tindall' s Texas Family Code, Family§ 154.126. ; ··~ I;· In geni

Application of guidelines to children of obligors receiving social security, Sampson Ability & Tindall's Texas Family Code, Family§ 154.133.

Amour

In

Application of guidelines to net resources, Sampson & Tindall's Texas Family Code, A~ Family§ 154.125. D<

TABS

153

:HIP CHILD SUPPORT § 154.124 itle. 5 Cb. !54 vsical o-ations; father ed some undetermined 0V11 tion of child support gujdelines vvould be ~1onth ~mount in child support, and calculation unjust or inappropriate under the circum- Dist. of father's net resources 1~ 1 as only one step stances. Agraz v. Carnley (App. 5 Dist. n-of- in assessing chi1d support. Marquez v. 2004) 143 S.W.3d 547. Child Support e-

Moncada (App. 1 Dist. 2012) 388 S.W.3d 342 i sup- 736, rehearing overruled. Children Out- Evidence vvas insufficient to support sht of of-wedlock <1:=o 73 finding that former husband's earnings 'Pan- The trial court did not abuse its discre- would be $970 per month one year after botb tion w·hen it failed to consider the value of child support hearing which determined agLLg father's personal use of his company's such figure; former husband's earning poantial truck and the $1,000 monthly health insur- tential could not be determined based on :.cess- ance premium paid on father's behalf by his earnings in prior years, given his erratce of his company as "adilltional factors" sup· ic employment history in the two years arded porting departure from the child support preceding hearing. Starck v. Nelson (App. :. and guidelines on bis motion to modify his 13 Dist. 1994) 878 S.W.2d 302. Child :::d to support obligation; the record did not Support <1:=o 339(3)

and show the dollar amount of the value of Evidence supported trial court variance mate- father's use of the company vehicle he from the child support guidelines and oras in received, or evidence as to what portion of der which did not require \Vife to pay arties the health insurance premium payment husband child support, even though hus- •PP· 1 was attributable to insurance for father, band had primary physical custody of the over- his wife, or stepson. In re P.C.S. (App. 5 parties son; husband manipulated son so tition Dist. 2010) 320 S.W.3d 525, review de- that son did not want to see wife anymore, rt '""' nied. Child Support e- 357 wife only made $8.50 per hour and was on Evidence was legally insufficient to sup- probationary status at her place of employ-

'Yim- port default judgment modifying child sup- ment, v..1ife provided health insurance for )nihly port; despite evidence that amount vvas child, and wife had special education and Nhich below statutory child support guidelines, health needs. Trueheart v. Trueheart ify di- there v.ras no evidence regarding best in· (App. 14 Dist. 2003) 2003 WL 22176626, r hus- terests of children or any factors the court Unreported. Child Support <1:=o 60; Child ;erva- n1ay consider in determining that applica- Support""' 148 hild's v.rife's ed to § 154.124. Agreement Concerning Support l rnin- 1ce as (a) To promote the amicable settlement of disputes between the par- :l not lt that ties to a suit, the parties may enter into a written agreement containing ng to provisions for support of the child and for modification of the agree- Dist. ment, including variations from the child support guidelines provided by ni_ e:=i Subchapter C.'

(b) If the court finds that the agreement is in the child's best interest, ice to the court shall render an order in accordance with the agreement. father (c) Terms of the agreement pertaining to child support in the order lODth, od re- may be enforced by all remedies available for enforcement of a judg- _on of ment, including contempt, but are not enforceable as a contract. Ld retlt ren-

(d) If the court finds the agreement is not in the child's best interest, )pea1s the court may request the parties to submit a revised agreement or the imum court may render an order for the support of the child. . child ishing Added by Acts 1995, 74th Leg., ch. 20, § !, eff. April 20, 1995. Amended by obli- 2003, 78th Leg., ch. 480, § !, eff. Sept. !, 2003.