Coburn v. Moreland

• Decision Date: 23 May 2014
• Docket Number: No. 03–12–00709–CV.,03–12–00709–CV.
• Citation: 433 S.W.3d 809
• Parties: Kirk Brand COBURN, Appellant v. Janet MORELAND, Appellee.
• Court: Texas Court of Appeals

433 S.W.3d 809

Kirk Brand COBURN, Appellant

v.Janet MORELAND, Appellee.

No. 03–12–00709–CV.

Court of Appeals of Texas, Austin.

May 23, 2014.

Janet McCullar Vavra, Nikki G. Maples, Jennifer S. Caras, Law Office of Janet McCullar PC, Stephen Orsinger, McGinnis, Lochridge & Kilgore, LLP, Austin, TX, William D. Powers, Law Offices of William D. Powers, Austin, TX, Richard R. Orsinger, McCurley, Orsinger, McCurley, Nelson & Downing, LLP, San Antonio, TX, for Appellant.

Michael Burnett, Andrew York, Armbrust & Brown, PLLC, Austin, TX, John Barrett, Barrett & Coble, Austin, TX, for appellee.

Before Chief Justice JONES, Justices PEMBERTON and FIELD.

OPINION

J. WOODFIN JONES, Chief Justice.

This is an appeal from a modification order in a “high-conflict” suit affecting the parent-child relationship (SAPCR).¹ The appellant, Kirk Brand Coburn, challenges the trial court's modification order, which (1) increased his monthly child-support obligation, (2) granted the appellee, Janet Moreland, the exclusive right to make certain decisions concerning their children's education and health care, (3) restricted his possession of and access to the children while he engaged in limited court-ordered counseling, and (4) awarded Moreland a substantial portion of her attorney's fees and costs. We will vacate the trial court's order in part, dismiss that part of the cause as moot, and affirm the remainder of the trial court's modification order.

FACTUAL AND PROCEDURAL BACKGROUND

On February 11, 2011, Coburn and Moreland ended their twelve-year marriage with an agreed divorce decree. In the decree, Coburn and Moreland were appointed joint managing conservators of their young daughters, E.C. and P.C. Moreland was awarded the exclusive right to designate the children's primary residence, and Coburn was awarded standard possession. Although both parents were reportedly living in Austin when the decree was executed, the standard possession terms included modified possessory rights if the parents began living more than 100 miles apart (long-distance standard possession).

At the time the agreed divorce decree was executed, Coburn had not been regularly employed for several years, and the terms of the decree recognized Coburn's limited financial resources by awarding Moreland a larger share of the marital debts and by limiting Coburn's child-support obligation to $600 per month. The decree, however, contemplated that Coburn would be seeking employment and specified that the $600 child-support obligation would exist only “[f]or the period of time while KIRK BRAND COBURN is unemployed” and would be recalculated “as soon as [he] gains employment.” ²

A mere week after the divorce was finalized, there began a series of events and circumstances that triggered a cascade of escalating discord between the parties that culminated in the underlying modification proceeding and the trial-court order at issue in this appeal. The precipitating event occurred when Coburn picked his daughters up for his first post-divorce weekend visitation. Coburn arrived at Moreland's home driving an expensive new vehicle of unknown origin, which caught Moreland's attention. Coburn then took the children to Houston for the weekend after representing to Moreland and his daughters that they would be staying in Austin for the visitation period. As Moreland and the girls would soon discover, Coburn had moved to Houston but had failed to disclose that fact until he was en route to his new home with the girls.

When the girls discovered they were leaving Austin, they telephoned their mother. According to Moreland, she and the girls were frightened by the undisclosed diversion and unsettled by the discovery that Coburn had moved to Houston without their knowledge. Adding to their distress, the children learned during the trip to Houston that their father had begun dating his childhood sweetheart, Holly.³ When the children returned to Austin, E.C. informed Moreland of that fact and inquired whether Coburn had been dating his new girlfriend before the divorce. Moreland responded that she was not able to answer that question, and she admittedly was upset and angry about the situation.

Moreland was also keenly interested in what appeared to be a sudden improvement in Coburn's financial resources. She was particularly upset by the fact that Coburn was driving a very expensive new car when a mere week before she had taken responsibility for the majority of the marital debt and agreed to accept a $600 monthly child-support payment. Moreland therefore set out to determine whether Coburn had additional financial resources to contribute to the support of his children.

Although Moreland knew that Holly was extremely wealthy and could have been supporting Coburn financially, he had previously informed her that he was interviewing for a job in Houston. Moreland and her attorney, therefore, repeatedly requested that Coburn disclose the source of his newfound prosperity. Coburn refused the request, but in an e-mail exchange with Moreland's attorney, he denied being employed and closed by saying “[i]t's nice being kept,” implying that Holly was his benefactor.

Shortly thereafter, Moreland's attorney noticed Coburn's deposition in an effort to discover information about his financial resources. At that time, Moreland had purchased airline tickets to take her daughters to Costa Rica for spring break, because the standard possession terms of the divorce decree granted her possession of the children at that time. In response to the deposition notice, however, Coburn notified Moreland of his intent to exercise his long-distance standard-possession rights since he was now residing more than 100 miles from the children; in accordance with those provisions, Coburn was entitled to possession of the girls during spring break every year. When Moreland agreed to cancel Coburn's deposition, the girls were permitted to go on the Costa Rica trip as planned. After returning from the trip, Moreland filed the underlying modification petition, seeking recalculation of child support pursuant to the terms of the agreed divorce decree.

In the two months that followed, Coburn and Holly became engaged, and Coburn submitted to a deposition. At his deposition, Coburn testified that he did not have a job, but he was working on starting a venture-capital business. As a result, he had not done anything to apply for a job that would pay a salary and presently had no income. He further disclosed that Holly was supporting him by paying (1) the debt he had assumed in the agreed divorce decree, (2) all of his child-support payments to Moreland, (3) his attorney's fees for the modification proceeding, and (4) all of his monthly credit-card expenses. He explained that Holly had also paid the rent for his furnished two-bedroom apartment and purchased the expensive new car he had been driving. Coburn acknowledged that Holly's financial gifts predated execution of the agreed divorce decree by approximately two months. He further testified that he did not believe $600 per month in child support was “fair” and stated that he believed that an adequate and fair amount of child support for his children was $300 per month.

Coburn was also questioned about his relationship with his daughters. He acknowledged having a poor relationship with them at the time of the deposition, but he blamed Moreland for alienating them from him. Coburn did not accept responsibility for any of the friction and asserted that the only thing he had done to contribute to the situation was that he had married Moreland in the first place.

Coburn's relationship with his daughters further soured after he and Holly were married in July 2011. At that time, Coburn and Holly were anxious to blend their two families, which included Holly's three children from a previous marriage. To that end, Coburn attempted to exercise his long-distance standard-possession rights in Houston, but the girls, who where increasingly exhibiting signs of emotional distress and anxiety, resisted visitation by crying, getting physically ill, refusing to get out of the car, and running away and hiding. The issues the children were experiencing included distress over being so quickly integrated into a new family situation and discomfort at missing events and activities in Austin that were important to them during their father's periods of visitation. The relationship between Coburn and Moreland had also become highly conflicted, and the parties dispute whether and to what extent the conflict resulted from or caused the situation between Coburn and their daughters.

Due to frequent disagreements about the nature, extent, and location of Coburn's visitation with the girls, a number of efforts ensued to ameliorate the discord and address the transition issues the children were experiencing. Temporary orderswere issued concerning Coburn's summer visitation, and a parenting facilitator was appointed to assist in visitation transitions, dispute resolution, and communications between Moreland and Coburn.

The parties also engaged the assistance of therapeutic professionals to address the issues of familial conflict. Dr. Allison Wilcox became the girls' individual therapist. Family counseling was also secured, first from Dr. Susan McMillan and then from Dr. Carlos Loredo.⁴ In addition to engaging the services of these therapists, Moreland started attending a divorce support group and participating in individual therapy. Coburn did not retain an individual therapist but did begin attending family therapy sessions.

In therapy, the family worked to address a number of consistent behavior patterns that were identified as having aggravated tensions, including that (1) Coburn minimized or failed to appreciate how his daughters were impacted by the significant and sudden changes in their lives, creating the impression that he was disinterested in their feelings; (2) Coburn disregarded or...