In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-24-00195-CV ___________________________
IN THE INTEREST OF R.H. AND H.H., CHILDREN
On Appeal from the 324th District Court Tarrant County, Texas Trial Court No. 324-591612-16
Before Sudderth, C.J.; Womack and Wallach, JJ. Memorandum Opinion by Justice Wallach MEMORANDUM OPINION
A.S. (Wife) and G.H. (Husband) divorced in 2017. This appeal arises from
Wife’s petition to modify the parent–child relationship in which she sought to modify,
among other things, the amount of child support paid by Husband. The trial court
granted the modification, and Husband now appeals. Husband argues in his sole issue
that the trial court abused its discretion by granting the modification because Wife
failed to show a material and substantial change of circumstances. Because Wife’s
modification petition relied on a provision that does not require a change in
circumstances, we will affirm.
Background
Wife’s original petition to modify the parent–child relationship alleged that
“[t]he circumstances of the children or a person affected by the order have materially
and substantially changed since the date of the rendition of the order to be modified”
and that “[t]he support payments previously ordered are not in substantial compliance
with the guidelines in [C]hapter 154 of the Texas Family Code, and the requested
increase would be in the best interest of the children.” See Tex. Fam. Code Ann.
§§ 156.401(a)(1), 156.402. Wife then filed a first amended petition. In her amended
petition, instead of alleging that circumstances had materially and substantially
changed, she alleged that “[i]t has been three years since the order to be modified was
rendered, and the monthly amount of support ordered differs by $100.00 from the
2 amount that would be awarded in accordance with the guidelines” in Texas Family
Code Chapter 154. See id. § 156.401(a)(2).
Husband filed a counterpetition seeking to be appointed as the person who had
the right to designate the children’s primary residence and to receive child support. By
amended counterpetition, he (1) sought to be appointed sole managing conservator or
alternatively to be appointed as the person who had the right to designate the
children’s primary residence, (2) asked that Wife be ordered to provide child support,
and (3) alleged that “[t]he circumstances of the children, a conservator, or other party
affected by the order to be modified have materially and substantially changed since
the date of rendition of the [divorce decree].”
After a hearing, the trial court signed an order granting Wife’s petition in part.
The order increased the amount of child support paid by Husband and made other
modifications not at issue in this appeal. The trial court denied Husband’s
counterpetition. Husband now appeals from the modification order.
Discussion
In his sole issue on appeal, Husband argues that the trial court abused its
discretion by modifying his child support obligation when the evidence is legally and
factually insufficient to show a material and substantial change in circumstances. He
asserts that the record contains no evidence regarding his historical financial
circumstances or those of Wife or the children. He contends that “Texas [c]ourts have
made it clear that in order to determine whether there has been a substantial and
3 material change, a court must compare the financial circumstances of the child and
the affected parties at the time the order was entered with their financial
circumstances at the time of the hearing on the modification” and that “[a]lthough
testimony was given and exhibits were admitted regarding [his] financial
circumstances during the nineteen months preceding the [modification trial], there
was no evidence admitted . . . relat[ing] to the financial circumstances of [Husband],
[Wife], or the children subject of this suit at the time” of the divorce decree.
Texas Family Code Section 156.401 provides grounds for modifying child
support. Tex. Fam. Code Ann. § 156.401. Husband is correct that if Wife wanted to
rely on Subsection (a)(1) to seek a modification, she would have had to show that,
since the divorce decree’s rendition, the circumstances of the children or a person
affected by the decree had materially and substantially changed. See id. § 156.401(a)(1).
However, Wife’s amended petition sought modification under Subsection (a)(2), not
Subsection (a)(1).
Subsection (a)(2) provides for modification of child support if “[i] it has been
three years since the order [to be modified] was rendered or last modified and [ii] 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 [under] the child support
guidelines.” Id. § 156.401(a)(2). Subsection (a)(2) does not require proof of a material
and substantial change. Id.; In re K.M.B., 606 S.W.3d 889, 898 (Tex. App.—Dallas
2020, no pet.); see In re A.E.A., 406 S.W.3d 404, 411 n.3 (Tex. App.—Fort Worth
4 2013, no pet.) (noting that although conservatorship modification requires material
and substantial change, child support modification does not require such a showing if
three years have elapsed since order’s signing). Husband’s brief recognizes that Wife
had amended her petition to allege that it had “been three years since the order to be
modified was rendered[ and that] the monthly amount of support differs by
$100.00 from the amount that would be awarded in accordance with the guidelines.”
He does not argue that Wife failed to satisfy Subsection (a)(2)’s requirements. See
Britton v. Tex. Dep’t of Crim. Just., 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.]
2002, no pet.) (noting general rule that an appellate court may not “alter an erroneous
judgment in favor of an appellant in a civil case who does not challenge that error on
appeal”); see also C. L. v. Williamson Cnty., No. 03-21-00405-CV, 2023 WL 1998894, at
*2 (Tex. App.—Austin Feb. 15, 2023, no pet.) (mem. op.) (noting that appellant had
not challenged the basis for the trial court’s order and stating that appellate court may
not consider unassigned error).
Another subsection—Subsection (a-1)—requires a material and substantial
change even if three years have passed since the last child support order. That
subsection applies only when the parties had “agree[d] to an order under which the
amount of child support differs from the amount that would be awarded in
accordance with child support guidelines.” Tex. Fam. Code Ann. § 156.401(a-1).
Husband’s opening brief does not argue that Subsection (a-1) applied or that
5 Subsection (a)(2) did not apply. In fact, it does not mention those two subsections at
all.
Wife’s brief noted that Husband’s brief had not cited Subsection (a-1) or
addressed Subsection (a)(2). In response, Husband filed a reply brief stating that
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-24-00195-CV ___________________________
IN THE INTEREST OF R.H. AND H.H., CHILDREN
On Appeal from the 324th District Court Tarrant County, Texas Trial Court No. 324-591612-16
Before Sudderth, C.J.; Womack and Wallach, JJ. Memorandum Opinion by Justice Wallach MEMORANDUM OPINION
A.S. (Wife) and G.H. (Husband) divorced in 2017. This appeal arises from
Wife’s petition to modify the parent–child relationship in which she sought to modify,
among other things, the amount of child support paid by Husband. The trial court
granted the modification, and Husband now appeals. Husband argues in his sole issue
that the trial court abused its discretion by granting the modification because Wife
failed to show a material and substantial change of circumstances. Because Wife’s
modification petition relied on a provision that does not require a change in
circumstances, we will affirm.
Background
Wife’s original petition to modify the parent–child relationship alleged that
“[t]he circumstances of the children or a person affected by the order have materially
and substantially changed since the date of the rendition of the order to be modified”
and that “[t]he support payments previously ordered are not in substantial compliance
with the guidelines in [C]hapter 154 of the Texas Family Code, and the requested
increase would be in the best interest of the children.” See Tex. Fam. Code Ann.
§§ 156.401(a)(1), 156.402. Wife then filed a first amended petition. In her amended
petition, instead of alleging that circumstances had materially and substantially
changed, she alleged that “[i]t has been three years since the order to be modified was
rendered, and the monthly amount of support ordered differs by $100.00 from the
2 amount that would be awarded in accordance with the guidelines” in Texas Family
Code Chapter 154. See id. § 156.401(a)(2).
Husband filed a counterpetition seeking to be appointed as the person who had
the right to designate the children’s primary residence and to receive child support. By
amended counterpetition, he (1) sought to be appointed sole managing conservator or
alternatively to be appointed as the person who had the right to designate the
children’s primary residence, (2) asked that Wife be ordered to provide child support,
and (3) alleged that “[t]he circumstances of the children, a conservator, or other party
affected by the order to be modified have materially and substantially changed since
the date of rendition of the [divorce decree].”
After a hearing, the trial court signed an order granting Wife’s petition in part.
The order increased the amount of child support paid by Husband and made other
modifications not at issue in this appeal. The trial court denied Husband’s
counterpetition. Husband now appeals from the modification order.
Discussion
In his sole issue on appeal, Husband argues that the trial court abused its
discretion by modifying his child support obligation when the evidence is legally and
factually insufficient to show a material and substantial change in circumstances. He
asserts that the record contains no evidence regarding his historical financial
circumstances or those of Wife or the children. He contends that “Texas [c]ourts have
made it clear that in order to determine whether there has been a substantial and
3 material change, a court must compare the financial circumstances of the child and
the affected parties at the time the order was entered with their financial
circumstances at the time of the hearing on the modification” and that “[a]lthough
testimony was given and exhibits were admitted regarding [his] financial
circumstances during the nineteen months preceding the [modification trial], there
was no evidence admitted . . . relat[ing] to the financial circumstances of [Husband],
[Wife], or the children subject of this suit at the time” of the divorce decree.
Texas Family Code Section 156.401 provides grounds for modifying child
support. Tex. Fam. Code Ann. § 156.401. Husband is correct that if Wife wanted to
rely on Subsection (a)(1) to seek a modification, she would have had to show that,
since the divorce decree’s rendition, the circumstances of the children or a person
affected by the decree had materially and substantially changed. See id. § 156.401(a)(1).
However, Wife’s amended petition sought modification under Subsection (a)(2), not
Subsection (a)(1).
Subsection (a)(2) provides for modification of child support if “[i] it has been
three years since the order [to be modified] was rendered or last modified and [ii] 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 [under] the child support
guidelines.” Id. § 156.401(a)(2). Subsection (a)(2) does not require proof of a material
and substantial change. Id.; In re K.M.B., 606 S.W.3d 889, 898 (Tex. App.—Dallas
2020, no pet.); see In re A.E.A., 406 S.W.3d 404, 411 n.3 (Tex. App.—Fort Worth
4 2013, no pet.) (noting that although conservatorship modification requires material
and substantial change, child support modification does not require such a showing if
three years have elapsed since order’s signing). Husband’s brief recognizes that Wife
had amended her petition to allege that it had “been three years since the order to be
modified was rendered[ and that] the monthly amount of support differs by
$100.00 from the amount that would be awarded in accordance with the guidelines.”
He does not argue that Wife failed to satisfy Subsection (a)(2)’s requirements. See
Britton v. Tex. Dep’t of Crim. Just., 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.]
2002, no pet.) (noting general rule that an appellate court may not “alter an erroneous
judgment in favor of an appellant in a civil case who does not challenge that error on
appeal”); see also C. L. v. Williamson Cnty., No. 03-21-00405-CV, 2023 WL 1998894, at
*2 (Tex. App.—Austin Feb. 15, 2023, no pet.) (mem. op.) (noting that appellant had
not challenged the basis for the trial court’s order and stating that appellate court may
not consider unassigned error).
Another subsection—Subsection (a-1)—requires a material and substantial
change even if three years have passed since the last child support order. That
subsection applies only when the parties had “agree[d] to an order under which the
amount of child support differs from the amount that would be awarded in
accordance with child support guidelines.” Tex. Fam. Code Ann. § 156.401(a-1).
Husband’s opening brief does not argue that Subsection (a-1) applied or that
5 Subsection (a)(2) did not apply. In fact, it does not mention those two subsections at
all.
Wife’s brief noted that Husband’s brief had not cited Subsection (a-1) or
addressed Subsection (a)(2). In response, Husband filed a reply brief stating that
Subsection (a-1) does apply because the divorce decree’s child support award had
deviated from the guidelines with the parties’ agreement. However, “[p]arties are
restricted on appeal to the theory on which the case was tried.” Wells Fargo Bank, N.A.
v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015) (citation omitted). Further, parties are
generally required to first raise a complaint in the trial court before raising it on
appeal. See Tex. R. App. P. 33.1. As Wife points out, not only did Husband not raise
this argument in his opening brief, he also did not invoke Subsection (a-1) in the trial
court, either by citing it directly or by otherwise making the trial court aware of his
complaint, and he did not assert that Subsection (a)(2) did not apply. Thus, he has not
preserved this argument. See id.; Martinez v. Martinez, 157 S.W.3d 467, 471 (Tex.
App.—Houston [14th Dist.] 2004, no pet.) (holding that wife had not preserved her
argument that the trial court should have applied a different statute in deciding
conservatorship); see also In re J.M., No. 02-21-00346-CV, 2022 WL 872542, at *3 (Tex.
App.—Fort Worth Mar. 24, 2022, no pet.) (mem. op.) (holding that parents failed to
preserve argument that trial court had applied wrong version of statute); In re A.A.M.,
No. 05-18-01314-CV, 2020 WL 477109, at *3 (Tex. App.—Dallas Jan. 29, 2020, no
pet.) (mem. op.) (citing Martinez).
6 Husband also raises for the first time in his reply brief an argument that the
trial court abused its discretion in setting the modified child support amount because
the amount is not supported by sufficient evidence of his net income. He cannot raise
this argument for the first time in his reply brief, and we will not consider it.1 See Tex.
R. App. P. 38.3.
In summary, Wife sought a child support modification under Subsection (a)(2),
which does not require proof of a material and substantial change. See Tex. Fam. Code
Ann. § 156.401(a)(2); K.M.B., 606 S.W.3d at 898. Husband’s brief does not challenge
the sufficiency of the evidence to establish modification under Subsection (a)(2), and
he did not object in the trial court that the subsection was inapplicable. We overrule
his sole issue.
Conclusion
Having overruled Husband’s sole issue, we affirm the trial court’s modification
order.
Husband’s opening brief did state that there was “only minimal evidence of 1
[his], [Wife]’s, or the children’s present financial circumstances,” but he made that statement in the context of arguing that Wife had failed to prove a material and substantial change in circumstances since 2017. He did not argue that the evidence of Husband’s current finances that was presented at trial was insufficient to support the modified child support amount. His brief elsewhere acknowledged that testimony and exhibits were presented regarding his financial circumstances “during the nineteen months preceding” the modification hearing, including “bank statements and testimony regarding his gross income from cattle and oil sales.” He did not explain why that evidence was insufficient to support the modified child support amount, and his reply brief does not discuss that evidence. See Tex. R. App. P. 38.1(i).
7 /s/ Mike Wallach Mike Wallach Justice
Delivered: January 9, 2025