Phillips v. Phillips

• Decision Date: 05 June 1985
• Docket Number: No. 04-83-00565-CV,04-83-00565-CV
• Citation: 695 S.W.2d 61
• Parties: Jerry Lee PHILLIPS, Appellant, v. Chari Lee PHILLIPS, Appellee.
• Court: Texas Court of Appeals

Page 61

695 S.W.2d 61

Jerry Lee PHILLIPS, Appellant, v. Chari Lee PHILLIPS, Appellee.

No. 04-83-00565-CV.

Court of Appeals of Texas San Antonio.

June 5, 1985.

Rehearing Denied July 19, 1985.

Eileen Flume, Flume & Flume, San Antonio, for appellant.

Abraham D. Ribak, San Antonio, for appellee.

Before BUTTS, CANTU and REEVES, JJ.

OPINION

BUTTS, Justice.

The father, Jerry Lee Phillips, appeals from an order to pay increased child support. TEX.FAM.CODE ANN. § 14.08(a), (c)(2) (Vernon Supp.1985). The mother, Chari Lee Phillips, filed her motion to modify the support order for the divorced couple's two children. The trial court increased the child support to be paid each month by the amount of $130.00. We affirm.

The parents were divorced in March, 1979. Although they have returned to court on other matters such as visitation since the judgment of divorce, this is the only motion to modify the order of support since that time. The father argues four points of error, the first being that the trial court erred, as a matter of law, in denying him a jury trial on the motion to modify the support order. He relies upon TEX.FAM.CODE ANN. § 11.13(a) (Vernon Supp.1985), which provides that any party in a suit affecting the parent-child relationship may demand a jury (excepting in adoption suits). Section 11.13(b) further provides:

The court may not enter a decree that contravenes the verdict of the jury, except with respect to the issues of the specific terms and conditions of access to the child, support of the child, and the rights, privileges, duties, and powers of conservators, on which the court may submit or refuse to submit issues to the jury as the court determines appropriate, and on which issues the jury verdict, if any, is advisory only.

As noted in the Commentary, 13 TEX.TECH.L.REV. 869 (1982) entitled Parent and Child, this section was amended in 1975 and 1981, each time in an attempt to solve problems of jury issues in conservatorship suits. As proposed in a 1973 amendment, (b) provided that the jury verdict was advisory on issues of conservatorship possession, support, and access to a child. However, the legislature added a clause prohibiting the court from entering a verdict that contravened a jury verdict on conservatorship issues. The purpose was to retain the limitation on the judge's power found in section 1 of former article 4639a, TEX.REV.CIV.STAT.ANN. (Vernon 1960), repealed by Acts 1973, 63rd Leg., p. 1458, ch. 543, § 3, eff. Jan. 1, 1974. Further problems arising in conservatorship suits led to a complete rewriting in 1975 and an amendment in 1981. But, we add, it is significant that not any of these problems affected the child support provisions in the statute.

The authors of the Commentary, supra, at 870, write that section 11.13(b) now provides that the court may not enter a decree that contravenes the verdict of the jury except with respect to the following issues: The specific terms and conditions of access to the child; the support of the child; and the rights, privileges, duties, and powers of conservators, on which issues the jury verdict, if any, is merely advisory. Their definitive use of punctuation serves as a guide.

It is thus obvious that, should there be a jury trial involving the issue of managing conservatorship, the trial court would not be bound to submit any issue on child support to that jury. If it did, that portion of the verdict would be advisory only. In that respect the law in Texas remains the same.

It has been held that a jury trial on the issue of visitation is not a matter of right. Henderson v. Youngblood, 512 S.W.2d 35, 36 (Tex.Civ.App.--El Paso 1974, no writ); Walker v. Showalter, 503 S.W.2d 624, 626-627 (Tex.Civ.App.--Houston [1st Dist.] 1973, no writ). Neither is it as to child support.

When the sole issue before the trial court is that of modification of child support, no jury trial on that issue is required. We hold that the trial court did not abuse its discretion in denying a jury trial under those circumstances. The fact that this trial court did not state a reason for refusing the jury trial on this sole issue does not elevate the action to abuse of discretion. The first point of error is overruled.

The father next contends the trial court abused its discretion by ending the hearing arbitrarily and refusing to hear his testimony. The statement of facts consists of thirty-seven pages of detailed evidence of the financial status of both parties, including exhibits. There was lengthy direct and cross-examination of each party. When the counsel for the father began to ask about money the father spent on the children (at the time of the hearing ages 10 and 12) during visitation, there was an objection. The trial court did state at that time that they could "tell me anything you want. We've got all day long, fellows, but ... I have already made up my mind. You can go ahead and put it on the record." Further it was stated, "No, I am not going to listen to any more than you have already put on." He also cautioned the father that he did not have to make payments which were not court-ordered.

The evidence showed the father's net earnings had increased from $1700.00 per month to $2100.00. He is a professor but now does research at a cancer research treatment center. The mother works as an assistant director for a day-care center, netting the sum of $837.00 each month. The trial court ordered the father to pay an additional $130.00 each month following the hearing.

Both parties were given the opportunity in this case to present relevant evidence. Compare Jordan v. Jordan, 653 S.W.2d 356 (Tex.App.--San Antonio 1983, no writ). We note also that no bill of exception by the father was made; nor has he demonstrated any harm resulting from refusal to hear further testimony concerning voluntary monies spent on the children. The second point of error is overruled.

Points three and four question the evidence to support the order. The father states that the last order of support was entered in July, 1983, just prior to this hearing, and the evidence should be limited from that date. We have that order before us, and it follows a motion to modify and clarify visitation privileges, wherein the father was the movant. The "child support order" stated therein is simply a restatement of the 1979 obligation of the father for child support. The agreed order sets out the same child support amount as ordered by the divorce judgment.

While it is true that section 14.08(c)(2) does provide that the order of support may be modified only if the circumstances have materially and substantially changed since the entry of the order or decree, in this instance the court could properly hear evidence of the financial condition of each party since the entry of the original order which was contained in the divorce judgment. See Moreland v. Moreland, 589 S.W.2d 828, 829 (Tex.Civ.App.--Dallas 1979, writ dism'd); Bradshaw v. Billups, 587 S.W.2d 61, 62 (Tex.Civ.App.--Eastland 1979, no writ).

We have reviewed the evidence heard by the trial court. The record reflects a substantial and material change in the circumstances of the children and the father since the divorce judgment was entered. The evidence is sufficient to support the order entered in this case. Cannon v. Cannon, 646 S.W.2d 295, 296-297 (Tex.App.--Tyler 1983, no writ). See also Jackman v. Jackman, 533 S.W.2d 361, 364 (Tex.Civ.App.--San Antonio 1975, no writ). The trial court did not abuse its discretion in entering the increased child support order. Points of error three and four are overruled.

The judgment is affirmed.

CANTU, Justice, dissenting.

Jerry Lee Phillips, appellant, appeals from an order entered in a suit affecting the parent-child relationship requiring him to pay increased child support.

On June 9, 1983, Chari Lee Phillips, appellee, mother of the minor children and appellant's former wife, filed a motion to modify a judgment entered on March 8, 1979. By said motion, appellee sought to have child support payments being made by appellant increased. The motion further sought to require appellant to provide either dental insurance coverage or the cost of dental care as needed by the minor children.

The motion was set for a hearing on August 1, 1983.

The record is silent as to when appellant was served with notice of the hearing, nevertheless, on June 27, 1983 appellant filed his answer to appellee's motion.

On August 31, 1983, a hearing was held before the trial court without intervention of a jury. Appeal is from the order entered at this hearing.

Appellant initially complains about the trial court's adamant refusal to grant him a trial by jury on the pending motion.

There is nothing in the transcript indicating when a jury demand was made or when the jury fee was tendered. Appellant asserts that the request was timely made and appellee does not take issue with this statement. This statement may be accepted as factually correct. TEX.R.CIV.P. 419. The order appealed from recites that a jury was not waived but rather was denied. This is consistent with appellant's position that compliance was had with TEX.R.CIV.P. 216. The statement of facts further reflects that denial of a jury was not predicated upon failure to timely make a jury demand under Rule 216. It is evident from a reading of the trial court's oral ruling that denial was made entirely upon the trial court's belief that a party to a motion seeking child support increase is not entitled to a jury trial. ¹ Appellant has properly preserved the issue for review.

Appellee's position is that a jury's decision on the issue of child support is not binding upon the trial court but is advisory only, thus the trial court is not bound to submit the issue even where a jury trial is had. This argument is founded upon appellee's interpretation of TEX.FAM.CODE § 11.13(b) (Vernon 1975).

Section 11.13, presently reads:

(a) In a suit affecting the...