In re Moore

511 S.W.3d 278, 2016 WL 80205
CourtCourt of Appeals of Texas
DecidedJanuary 7, 2016
DocketNo. 05-14-01173-CV
StatusPublished
Cited by16 cases

This text of 511 S.W.3d 278 (In re Moore) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Moore, 511 S.W.3d 278, 2016 WL 80205 (Tex. Ct. App. 2016).

Opinion

OPINION

Opinion by

Justice Lang-Miers

In this suit affecting the parent-child relationship, Father appeals orders modifying child support and requiring him to pay Mother’s appellate attorney’s fees and expenses. For the reasons that follow, we affirm the orders.

Background

Mother and Father married in 2002, had a child, N, in 2005, and divorced in 2012. Their settlement agreement appointed them joint managing conservators of N with Mother having the exclusive right to designate N’s primary residence. Additionally, the parties agreed to divide their community property equally, with Mother receiving the marital home along with its mortgage and related expenses, and neither party paying child support. About [282]*282fourteen months later, Mother filed a petition to modify in which she asked the trial court to order Father to pay monthly child support in accordance with the maximum child support guidelines. Father answered and denied that there had been a material and substantial change in circumstances to justify modifying the child support and characterized Mother’s complaint as “buyer’s remorse.”

At a bench trial, Mother presented evidence that her income had steadily decreased since the divorce and that Father’s income had increased. The evidence showed that Mother was employed as a commercial property insurance broker and Father was employed as a commercial real estate lender for a private bank; they had roughly equal incomes during their marriage. Mother testified that since the divorce her base salary had remained relatively constant at $94,000, but her bonuses had steadily decreased because of decreasing commercial property insurance premium rates. She explained that her bonus was calculated as a percent of commission, which was calculated as a percent of premiums, and premiums had decreased because the “property rates in the commercial market have decreased steadily[.]” She testified that “commercial property rates are just very low” and that she was renewing “accounts at 15[%] to 25[%] premium decrease or rate decrease.” She said she “had roughly close to a $20,000 decrease” in income since the divorce. She agreed that at the time of divorce she knew her bonus for 2012 would be lower than it had been in the past, but she said she did not anticipate her bonuses would continue to decrease.

Mother also testified that while she knew the divorce decree required her to pay the mortgage and related household expenses, those expenses had gone up due to her having primary care of N. She also testified that Father reimbursed her only $1500 for N’s expenses for the year 2013. She said she “dipped into the savings that [she] was going to use for [N’s] college” to pay some of those expenses and, because of that, N “is not seeing any difference himself’ as a result of her decrease in income. She testified that she had used over half of her savings to pay expenses, including attorney’s fees in this matter. In response to the trial court’s questions, Mother testified that prior to the divorce she “felt that [she] could handle the house payment.” She said she “realized [she was] biting off this big chunk” of bills, including property insurance and taxes and the house payment, but she thought she could make those payments.

Father cross-examined Mother on the circumstances that existed at the time of divorce to support his argument that there had been no material and substantial change in circumstances and that Mother “was fully informed of the nature of the fluctuations” in her bonuses at the time of divorce. Father attempted to get Mother to pinpoint a specific event that allegedly caused a change in circumstances, but Mother testified that the change in circumstances was not something she could relate to a particular month and that it happened “over a long period of time[.]” Mother testified that the steady decrease in bonuses was not something she anticipated at the time of divorce.

With regard to Father’s income, the evidence showed it was $154,539 in 2011, fell somewhat in 2013, and increased again to a projected $169,000 in 2014, with the potential for more bonuses in 2014. Father testified that there was “a substantial difference in [his] income” because of fluctuating bonuses, but he did not consider that a “substantial change of circumstances” because his “bonus has always fluctuated” and “that was perfectly consistent with the [283]*283reality and the circumstances that were in place” at the time of divorce.

After hearing all the evidence, the court modified the agreed decree of divorce and ordered Father to pay $1500 per month in child support, $7500 in retroactive child support, and $7500 in attorney’s fees to Mother. Father appealed. While the appeal was pending, Mother moved for temporary orders pending appeal in which she sought conditional appellate attorney’s fees in the amount of $52,500. After a hearing, the trial court granted Mother’s motion, and Father challenged the order in a petition for writ of mandamus. We consolidated the mandamus proceeding and appeal and ordered the parties to address the issues in their briefs on appeal.

Modification of Child Support

In issue one on appeal, Father contends that Mother did not prove a material and substantial change in circumstances to justify a modification, one year later, to their agreement that neither parent would pay child support. He contends that Mother filed the motion to modify because, among other things, she had “buyer’s remorse” about agreeing to no child support. He argues that the only change in their circumstances was the fluctuation of their respective bonuses, which he contends was an anticipated circumstance at the time of divorce and will not support a modification. In issue two on appeal, Father argues that the trial court abused its discretion, for the same reasons raised in issue one, when it ordered him to pay retroactive child support. And in issue three on appeal, Father argues that the award of $7500 in attorney’s fees must be reversed if he prevails on issues one and two.

Applicable Law

When parents agree to a support order that is different from the amount required by the child support guidelines, the trial court has discretion to modify the support order “only 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.” Tex. Fam.Code Ann. § 156.401(a-l) (West Supp.2015). The movant bears the burden to show a material and substantial change in circumstances. In re P.C.S., 820 S.W.3d 525, 530 (Tex.App.-Dallas 2010, pet. denied). The trial court determines whether the movant, satisfied its burden by comparing the circumstances at the time of the initial order with those at the time the modification is sought. Id.

Standard of Review

A trial court has broad discretion to decide the best interest of a child in family law matters, and we review the trial court’s decision to modify a child support order for an abuse of discretion. Id. A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or without reference to guiding rules or principles. Id. Under this standard of review, we consider the legal and factual sufficiency of the evidence in our assessment of whether the court abused its discretion. In re J.D.D.,

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Cite This Page — Counsel Stack

Bluebook (online)
511 S.W.3d 278, 2016 WL 80205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-moore-texapp-2016.