In re C.C.J.

• Decision Date: 14 February 2008
• Docket Number: No. 05-07-00216-CV.,05-07-00216-CV.
• Citation: 244 S.W.3d 911
• Parties: In the Interest of C.C.J. and C.M.J., Minor Children.
• Court: Texas Court of Appeals

244 S.W.3d 911

In the Interest of C.C.J. and C.M.J., Minor Children.

No. 05-07-00216-CV.

Court of Appeals of Texas, Dallas.

February 14, 2008.

Joseph Eric Higgins, J. Eric Higgins, P.C., Plano, for Appellant.

James Nygaard, McKinney, for Appellee.

Before Justices O'NEILL, RICHTER, and LANG.

OPINION

Opinion by Justice LANG.

Craig Jones ("Father") appeals the trial court's order modifying a final divorce decree. Father asserts four issues on appeal. In his first issue, Father contends the evidence is legally and factually insufficient to support the trial court's finding that child support should be increased. In his second and third issues, Father asserts the trial court was without authority to designate Charlotte Marie Jones ("Mother") as the parent with the exclusive right to make educational decisions on behalf of minor children C.C.J. and C.M.J. (the "children") and the evidence is legally and factually insufficient to support the trial court's finding that Mother should have such right. Finally, in his fourth issue, Father challenges the legal and factual sufficiency of the evidence to support the trial court's award of attorney's fees to Mother.

For the reasons below, we decide Father's first issue in his favor. Father's second and third issues are decided against him. In view of our decision respecting Father's first issue, we need not address Father's fourth issue. We reverse and render in part and affirm in part. In addition, we reverse the trial court's award of attorney's fees to Mother and remand the issue of Mother's attorney's fees for reconsideration in light of this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

Father and Mother were divorced on April 26, 2005, and were appointed joint managing conservators of C.C.J., born September 27, 1999, and C.M.J., born October 11, 2001. Under the terms of the divorce decree, Mother was to receive child support from Father in the amount of $1025 per month. In addition, the divorce decree provided in relevant part that Father and Mother each had the right, subject to the agreement of the other parent, to make decisions concerning the children's education.

On February 14, 2006, Father filed a "Petition to Modify Parent-Child Relationship," seeking the exclusive right to make educational decisions on behalf of the children and attorney's fees. In his petition, Father stated, "The 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 order to be modified." Mother filed a general denial on February 23, 2006. On April 24, 2006, Mother filed a "Counter-Petition to Modify Parent-Child Relationship," requesting in relevant part the exclusive right to make educational decisions on behalf of the children, an increase in Father's child support obligations, and attorney's fees. With respect to both educational decisions and child support, Mother stated in her counter-petition that the circumstances of the relevant persons "have materially and substantially changed" since the date of the rendition of the order to be modified.

At a November 2, 2006 hearing on the petition and counter-petition (the "modification hearing"), Father testified that his annual salary had increased by $1500 since the time of the divorce. Records of Father's income from June 2006 through August 2006 were admitted into evidence. Also admitted into evidence were Mother's August 2006 paycheck stub and Mother's banking statements from June 2005 through September 2006, which listed itemized expenditures. Mother testified at the modification hearing that she "would like to continue with the joint rights" respecting educational decisions on behalf of the children.

A memorandum containing orders modifying the parties' final divorce decree was signed by the trial judge on November 2, 2006. The orders in the memorandum provided in relevant part that Mother "shall have the right to make final decisions concerning the education of the children after a good faith effort to exchange information and ideas and reach an agreement with [Father]." Further, the trial court found Father's net monthly resources to be $4503.92 and ordered Father to pay child support to Mother in the amount of $1126 per month, retroactive to May 1, 2006. In addition, the trial court found that "$5000 is a reasonable and necessary attorney fee for [Mother] in this action" and awarded judgment in the amount of $5000 to Mother against Father. Father's request for attorney's fees was denied. On November 27, 2006, Father filed a "Motion to Reconsider" respecting modification of child support and Mother's attorney's fees.

The trial court entered an "Order in Suit to Modify Parent-Child Relationship" on November 29, 2006, containing provisions identical to those in its November 2, 2006 memorandum. On December 15, 2006, a request for findings of fact and conclusions of law was filed by Father. The trial court's findings of fact and conclusions of law were filed on December 18, 2006. On that same date, Father filed a "First Amended Motion to Reconsider," in which he repeated his original assertions respecting modification of child support and Mother's attorney's fees and, in addition, stated:

The Court issued a ruling awarding [Mother] the exclusive right to make educational decisions. Movant requests the court to reconsider its ruling in that [Mother] abandoned her request to be awarded the exclusive right to make educational decisions on behalf of the children in open court and under oath.

Father's "First Amended Motion to Reconsider" was denied by the trial court after a hearing. A notice of appeal was timely filed by Father on February 26, 2007.

II. MODIFICATION OF DIVORCE DECREE

A. Standard of Review

We review a trial court's decision to modify child support or conservatorship under an abuse of discretion standard. In re M.A.S., 233 S.W.3d 915, 919 (Tex.App.-Dallas 2007, pet. denied); Garner v. Garner, 200 S.W.3d 303, 306 (Tex.App.-Dallas 2006, no pet.); In re E.A.C., 162 S.W.3d 438, 441 (Tex.App.-Dallas 2005, no pet.) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) (per curiam)). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding principles. Garner, 200 S.W.3d at 306.

Under an abuse of discretion standard, legal and factual insufficiency issues are not independent grounds of error, but are relevant factors in assessing whether the trial court abused its discretion. Id. We review the evidence in the light most favorable to the order and indulge every presumption in favor of the trial court's ruling. Id. If some probative and substantive evidence supports the order, there is no abuse of discretion. Id.

B. Child Support

In his first issue, Father asserts the evidence is legally and factually insufficient to support the trial court's finding that child support should be increased. Father argues Mother failed to meet her burden of proof to demonstrate the required material and substantial change of circumstances to warrant an increase in child support and contends, "The Trial Court's judgment for an increase in child support constituted an abuse of discretion." Mother argues she met her burden of proof and "established by a preponderance of the evidence a material and substantial change of circumstances" in support of her request for a retroactive child support increase as required under the Texas Family Code. Additionally, Mother asserts the evidence is "legally and factually sufficient to support the Trial Court's judgment for the retroactive child support increase" and the trial court did not abuse its discretion.

1. Applicable Law

The trial court may modify a previous child support order 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. Act of May 29, 2005, 79th Leg., R.S., ch. 916, § 19, 2005 Tex. Gen. Laws 3148, 3154 (amended 2007) (current version at TEX. FAM.CODE ANN. § 156.401(a)(1) (Vernon Supp.2007)). In determining whether there has been a material and substantial change in circumstances, it is well-settled that the trial court must examine and compare the circumstances of the parents and any minor children at the time of the initial order with the circumstances existing at the time modification is sought. In re J.D.M., 221 S.W.3d 740, 744 (Tex.App.-Waco 2007, no pet.); London v. London, 192 S.W.3d 6, 15 (Tex.App.-Houston [14th Dist.] 2005, pet. denied); In re J.R.D., 169 S.W.3d 740, 743-44 (Tex.App.-Austin 2005, pet. denied). The record must contain both historical and current evidence of the relevant person's financial circumstances. London, 192 S.W.3d at 15. Without both sets of data, the court has nothing to compare and cannot determine whether a material and substantial change has occurred. Id. The movant has the burden to show the requisite material and substantial change in circumstances since the entry of the previous order. Cameron v. Cameron, 158 S.W.3d 680, 682 (Tex.App.-Dallas 2005, pet. denied).

2. Application of Law to Facts

The parties do not dispute that Mother, as the movant in this case with respect to modification of child support, had the burden to show the requisite material and substantial change in circumstances since the entry of the divorce decree. See id. However, Father contends the trial court erred in exercising its discretion to increase child support because the evidence is insufficient to support the trial court's finding of "a substantial and material change of circumstances since the rendition of the prior order."

Mother asserts that in the April 26, 2005 final divorce decree, which she requested the trial court to judicially notice, Father was ordered to pay "Texas Family Code guideline child support" in the amount of $1025 per month, "thereby...