In re A.B.P.

• Citation: 291 S.W.3d 91
• Decision Date: 17 June 2009
• Docket Number: No. 05-07-01748-CV.,05-07-01748-CV.
• Parties: In the Interest of A.B.P., a Minor Child.
• Court: Court of Appeals of Texas

291 S.W.3d 91

In the Interest of A.B.P., a Minor Child.

No. 05-07-01748-CV.

Court of Appeals of Texas, Dallas.

June 17, 2009.

James Nygaard, McKinney, TX, for Appellant.

Loretta A. Keller, Plano, TX, for Appellee.

Before Justices BRIDGES, FITZGERALD, and LANG-MIERS.

OPINION

Opinion By Justice LANG-MIERS.

This is an appeal from a final order issued after a hearing on counter-petitions to modify the parent-child relationship. In six issues, J.P. (Father) challenges the provisions in the order (1) removing him as joint managing conservator and appointing B.P. (Mother) as sole managing conservator, (2) giving Mother the right to designate a three-week period of travel every other summer before Father designates his extended period of summer possession, (3) awarding $11,040 to Mother as a sanction against Father for violating notice provisions in the divorce decree, (4) awarding Mother attorneys' fees, and (5) classifying Mother's attorneys' fees as a child support arrearage. We reverse the provision of the trial court's order removing Father as joint managing conservator and appointing Mother sole managing conservator and affirm the remainder of the trial court's order.

BACKGROUND

Mother and Father were divorced in 2005, when their son, A.B.P., was two. In the divorce decree, Mother and Father were appointed joint managing conservators, and Mother was given the exclusive right to designate A.B.P.'s primary residence within Collin County and contiguous counties. Father was ordered to pay Mother $1,000 per month in child support and to notify Mother of any change in employment, via certified mail within seven days. The decree also required Father to maintain health insurance for A.B.P. through Father's United Health Care insurance, and to notify Mother within fifteen days of (1) any termination of, or lapse in, coverage, and (2) the availability of other health insurance for A.B.P.

In 2006, Father filed a petition to modify the parent-child relationship, in which he sought to reduce his child support obligation. The trial court conducted a hearing on Father's petition in December 2006 and issued an order in January 2007 reducing his child support obligation to $600 per month. The trial court also found that Father had not paid the costs of A.B.P.'s health insurance, as required under the terms of the 2005 decree, and awarded $1,120 to Mother to cover the six months of health insurance premiums she had paid for A.B.P.'s health insurance through her work.

In April 2007, Father filed another petition to modify the parent-child relationship, in which he generally alleged that there had been a material and substantial change in circumstances since the entry of the prior order and specifically alleged that Mother "has had an order deferring adjudication with regard to an offense involving family violence" and "has a history or pattern of committing family violence." In that petition, Father sought the exclusive right to designate A.B.P.'s primary residence, to terminate his child support obligation, and to receive child support from Mother. Father also asked that Mother be ordered to complete a battering intervention and prevention program.

In May 2007, Mother answered and filed a counter-petition seeking, among other things, to be designated the exclusive custodian of A.B.P.'s passport and the right to designate a three-week period for travel with A.B.P. every other summer before Father designates his extended periods of summer possession. Mother's counter-petition included a motion for sanctions, in which she sought sanctions against Father for two reasons. First, she sought sanctions because Father failed to notify Mother and the trial court that he found a new job and started working on December 29, 2006—between the time of the hearing on Father's 2006 petition to modify and the trial court's January 2007 order reducing his child support. She alleged that Father's failure to comply with the notice provision of the divorce decree prevented her from seeking an appropriate amount of child support starting in January 2007. She asked the trial court to sanction Father and order him to pay Mother an amount equal to or greater than twice the amount of additional child support she would have received from Father if his actual income had been used to calculate his child support obligation under family code guidelines. Second, Mother sought sanctions against Father for failing to notify her and the trial court that he enrolled A.B.P. in his new employer's health insurance plan beginning in January 2007. More specifically, Mother alleged that she kept A.B.P. enrolled in her employer's health insurance plan, and the costs of his enrollment were deducted from her wages unnecessarily, because Father did not comply with the divorce decree and inform her that A.B.P. had other health insurance. She asked the trial court to sanction Father and order him to pay Mother an amount equal to or greater than twice the amount of A.B.P.'s health insurance premiums deducted from Mother's wages beginning in January 2007.

In June 2007, Father filed an amended petition to modify, in which he again generally alleged a material and substantial change in circumstances, but did not allege family violence. In his amended petition he sought, among other things, to be appointed sole managing conservator of A.B.P., or in the alternative, joint managing conservator with the exclusive rights to designate A.B.P.'s primary residence and to make decisions about A.B.P.'s education. In his amended petition, he also sought to abate his child support obligation and to receive child support from Mother, or in the alternative, for his child support obligation to be decreased.

After a three-day hearing, the trial court issued an order in which, among other things, it (1) removed both parents as joint managing conservators, appointed Mother sole managing conservator, and appointed Father possessory conservator, (2) gave Mother the exclusive right to apply for and maintain possession of A.B.P.'s passport and the right to designate three weeks of possession every other summer before Father designates his extended period of summer possession, and (3) ordered Father to pay $1,380 per month in child support. The trial court also granted Mother's motion for sanctions and ordered Father to pay $11,040 to Mother as a sanction for violating the notice provisions in the divorce decree. The trial court also ordered Father to pay $15,000 to Mother for her attorneys' fees in the instant proceeding, $5,000 of which had already been paid pursuant to a temporary order, and an additional $4,500 in attorneys' fees previously awarded to Mother in two prior proceedings that remained unpaid. The trial court also designated the remaining $10,000 in attorneys' fees awarded for the instant proceeding and the $4,500 awarded in past proceedings as "in the nature of child support" and as "a child support arrearage." Father timely requested, and the trial court timely filed, written findings of fact and conclusions of law.

ISSUES ON APPEAL

Father raises six issues on appeal challenging the provisions in the trial court's order modifying conservatorship and visitation, awarding sanctions against Father, awarding attorneys' fees to Mother, and classifying Mother's attorneys' fees as "in the nature of child support" and as "a child support arrearage."

STANDARD OF REVIEW

Most appealable issues in a family law case, including the issues in this case, are evaluated under an abuse-of-discretion standard. See In re B.M., 228 S.W.3d 462, 464 (Tex.App.-Dallas 2007, no pet.) (orders regarding child custody, control, possession, and visitation reviewed for abuse of discretion); In re R.C.S., 167 S.W.3d 145, 152 (Tex.App.-Dallas 2005, pet. denied) (award of attorneys' fees in modification proceeding reviewed for abuse of discretion); In re C.Z.B., 151 S.W.3d 627, 636 (Tex.App.-San Antonio 2004, no pet.) (sanctions award reviewed for abuse of discretion). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or when it acts without reference to any guiding principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); In re M.J., 227 S.W.3d 786, 790 (Tex.App.-Dallas 2006, pet. denied).

In family law cases, the abuse-of-discretion standard of review overlaps with the traditional sufficiency standards of review; as a result, insufficiency of the evidence is not an independent ground of reversible error, but instead constitutes a factor relevant to our assessment of whether the trial court abused its discretion. In re Marriage of Roberson, No. 05-07-01061-CV, 2008 WL 4868345, at *3 (Tex.App.-Dallas Nov. 12, 2008, no pet.) (mem. op.). To determine whether the trial court abused its discretion we consider whether the trial court (i) had sufficient evidence upon which to exercise its discretion and (ii) erred in its exercise of that discretion. Id. We conduct the applicable sufficiency review with regard to the first question. Id.

ANALYSIS

Modification of Conservatorship

In his first issue, Father challenges the trial court's decision to remove him as joint managing conservator and to appoint mother as sole managing conservator. He argues that the evidence is insufficient to support the trial court's decision. A party may challenge the sufficiency of the evidence in a nonjury trial for the first time on appeal. See TEX.R.APP. P. 33.1(d). Consequently, we determine whether the trial court had sufficient evidence upon which to exercise its discretion. In re Marriage of Roberson, 2008 WL 4868345, at *3.

Under section 156.101 of the family code, a trial court may modify conservatorship of a child if the modification is in the child's best interest, and the circumstances of the child, a conservator, or other party affected by the existing conservatorship order have materially and substantially changed since the rendition of the existing order. TEX....