S.A.B.S. v. H.B.

• Decision Date: 09 March 1989
• Docket Number: No. 13-88-350-CV,13-88-350-CV
• Parties: S.A.B.S., Appellant, v. H.B., Appellee.
• Court: Texas Court of Appeals

Page 860

767 S.W.2d 860

S.A.B.S., Appellant, v. H.B., Appellee.

No. 13-88-350-CV.

Court of Appeals of Texas,

Corpus Christi.

March 9, 1989.

Kemper Stephen Williams, III, Kelly, Stephenson & Marr, Victoria, for appellant.

Knute L. Dietze, Victoria, for appellee.

Before NYE, C.J., and BENAVIDES and DORSEY, JJ.

OPINION

BENAVIDES, Justice.

This appeal concerns an order by the trial court modifying a divorce decree in a suit affecting the parent-child relationship. The order appellant seeks to reverse substantially reduces and restricts her visitation rights with her child. It also orders her to pay child support payments of $150.00 per month.

Appellant raises five points of error. Points one, two and three address the propriety of the modification of visitation rights. Points four and five address the issue of child support. Appellee has filed no brief. We reverse the trial court's order and render judgment that restores the orders contained in the original decree.

By her first point of error, appellant asserts that the trial court erred in reducing her possession of or access to the child because there is no pleading to support the modification. Appellant filed Motion to Modify in Suit Affecting the Parent-Child Relationship. Appellee responded with a general denial and a counterclaim for child support and attorney's fees. Appellee did not seek modification of the custody portion of the decree to reduce appellant's access to or possession of the child. ¹ The court's order substantially reduced and restricted appellant's access to and possession of her child, though no such relief had been sought by appellee.

The Family Code provides that the terms and conditions of access to or possession of a child may be modified only by filing a motion. Tex.Fam.Code Ann. § 14.08(a) (Vernon 1986). This court has twice held that a motion to modify is the exclusive method to obtain the relief sought. Gawlik v. Gawlik, 707 S.W.2d 256, 260 (Tex.App.--Corpus Christi 1986, no writ); In the Interest of Vasquez, 666 S.W.2d 649, 651 (Tex.App.--Corpus Christi 1984, no writ).

The reduction and restriction of appellant's visitation rights were neither pled nor requested; therefore, we hold that the trial court's order of July 12, 1988, as it pertains to visitation, possession or access was improper. Furthermore, we hold that the rights of appellant as they pertain to access to the child are controlled by the original decree of divorce entered on June 20, 1984. We need not address appellant's second and third points of error. Appellant's first point is sustained.

Appellant complains by her fourth point of error that the trial court erred in ordering her to pay appellee child support because there is no evidence of a change of circumstances or, alternatively, because the evidence is factually insufficient to support the trial court's order. Upon careful review of the record, we agree that there is no evidence of a change in circumstances since the entry of the original decree.

In response to appellant's motion to modify, appellee filed a counterclaim seeking child support. After the hearing, the trial court ordered appellant to pay child support in the amount of $150.00 per month. The original decree imposed no child support obligations upon appellant.

Tex.Fam.Code Ann. § 14.08(c) (Vernon Supp.1989) permits the trial court to modify that portion of a decree pertaining to support of a child "if the circumstances of the child or a person affected by the order or portion of the decree to be modified have materially and substantially changed since the date of its rendition ..." In determining whether a modification in child support payments is appropriate, the trial court should examine the circumstances of the child and parents at the time the prior decree was rendered in relation to the circumstances existing at the time the prior order is sought to be modified. Liveris v. Ross, 690 S.W.2d 60, 61 (Tex.App.--Houston [14th Dist.) 1985, no writ); Stofer v. Linville, 662 S.W.2d 783, 784 (Tex.App.--Houston [14th Dist.] 1983, no writ); Cannon v....