Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 94th District Court of Nueces County, Texas.
Justices Rodriguez, Contreras, and Longoria Memorandum
V. RODRIGUEZ Justice
issued a memorandum opinion in this case on January 26, 2017,
affirming the trial court's judgment in all respects.
Appellant subsequently filed an amended motion for rehearing.
Without changing our previous disposition, we deny the motion
for rehearing but withdraw our prior memorandum opinion and
judgment and substitute the following memorandum opinion and
accompanying judgment in their place.
parties in this case are appellee A.M. and appellant J.F.L.,
the parents of T.A.M. J.F.L. brings three issues on appeal.
By her first two issues, J.F.L. argues that the trial court
erred in granting A.M.'s petition to modify child support
and denying J.F.L.'s petition to modify custody. By her
third issue, J.F.L. argues that the judge erred by denying
her motion to recuse. We affirm.
suit began in 2012, when both J.F.L. and A.M. filed competing
petitions to modify the parent-child relationship. Both
petitions were ultimately tried to the bench in March 2015.
An order of modification was entered October 2015, by which
time T.A.M. was eleven years old.
was the second time J.F.L. and A.M. sought modification of
their respective parent-child relationships. The first
modification case was tried in 2011, and it resulted in both
parents retaining joint managing conservator status and many
of the same rights they had been entitled to under the
original decree of divorce. But the 2011 order granted A.M.
two exclusive rights which had previously been held by
J.F.L.: "the exclusive right to designate the primary
residence of the child within Nueces County, Texas" and
"the exclusive right to receive and give receipt for
periodic payments for the support of the child and to hold or
disburse these funds for the benefit of the child."
However, the trial court ordered that J.F.L. would pay no
child support "at this time" in consideration of
the "agreement of the parties and the circumstances of
J.F.L ..... "
to A.M.'s testimony, he had agreed that J.F.L. should pay
no child support until she was able to support herself.
August 20, 2012, J.F.L. filed a petition to modify A.M.'s
exclusive residence-designation rights under the 2011 order.
J.F.L. had moved from Rockport to Austin, obtained a job, and
proposed a modification of custody to allow T.A.M. to live
with her. Throughout the litigation, J.F.L. cited this new
job and other positive developments in her financial affairs
as a basis for modification of custody. According to J.F.L.,
these changes qualified as a "material and substantial
change in circumstances" under the Texas Family Code,
and she further argued that a modification of custody was in
the best interest of T.A.M. J.F.L. also requested child
filed a counter-petition seeking to modify child support from
the agreed amount of $0 per month to an amount within the
child support guidelines.
case was transferred from the Aransas County Court to the
94th District Court in Nueces County, the Honorable Bobby
Galvan presiding. J.F.L. filed a motion to recuse Judge
Galvan, which he denied. The allegations and evidence related
to this motion are set forth separately in Section IV,
the bench trial, A.M. acknowledged J.F.L.'s new job and
prosperity but argued that there was no material and
substantial change of circumstances to warrant a modification
of custody. However, he urged that in light of J.F.L.'s
improved financial condition, there was a material and
substantial change in financial circumstances and
that J.F.L. should be ordered to pay child support consistent
with the state guidelines.
the trial, Judge Galvan entered a finding that J.F.L. had
failed to prove a material and substantial change in
circumstances since the 2011 order "that would support a
change in the conservator designated as having the exclusive
right to establish the primary residence of the child."
However, Judge Galvan also entered a finding that A.M.
"proved that the financial circumstances . . .
have materially and substantially changed since the date of
rendition of the order to be modified . . . sufficient to
support an increase in the amount of child support"
which J.F.L. was required to pay. (Emphasis added).
Ultimately, Judge Galvan denied J.F.L.'s motion to modify
custody but granted A.M.'s motion to modify child
support, ordering J.F.L. to pay $499 per month. This appeal
Material and Substantial Change in Circumstances
first issue, J.F.L. focuses on whether there was a material
and substantial change in circumstances of the child, a
conservator, or one affected by the order-which is a
precondition for modification of child custody or child
support. As a general proposition, J.F.L. argues that a
change in circumstances related to child support is
necessarily a change in circumstances for custody as well.
She frames this proposition in two ways. Her first argument
is that when A.M. pleaded there was a change in circumstances
for one purpose, he judicially admitted a change of
circumstances for all other purposes, including custody.
J.F.L.'s second argument is that because the trial court
found a material change as to child support but not as to
custody, this shows an arbitrary, internal inconsistency that
qualifies as an abuse of discretion.
the parties have agreed to a child support order that is
different from the amount required by the child support
guidelines, the trial court has discretion to modify the
support order "only 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." Tex. Fam. Code Ann. § 156.401(a-1)
(West, Westlaw through 2015 R.S.); In re P.C.S., 320
S.W.3d 525, 530 (Tex. App.-Dallas 2010, pet. denied). The
party seeking a modification of child support has the burden
to show the requisite change in circumstances. In re
C.C.J., 244 S.W.3d 911, 918 (Tex. App.-Dallas 2008, no
pet.). An order modifying child support will not be
overturned unless the trial court clearly abused its
discretion. See Iliff v. Iliff, 339 S.W.3d 74, 78
court may modify an order that provides the terms and
conditions of conservatorship or that provides for the
possession of or access to a child if modification would be
in the best interest of the child and the circumstances of
the child, a conservator, or other party affected by the
order have materially and substantially changed since the
earlier of: (A) the date of the rendition of the order; or
(B) the date of the signing of a mediated or collaborative
law settlement agreement on which the order is based. Tex.
Fam. Code Ann. § 156.101 (West, Westlaw through 2015
R.S.). "Thus, any person who seeks to modify an existing
custody order must show (1) changed circumstances and (2)
that modification would be a positive improvement for the
child." In re V.L.K., 24 S.W.3d 338, 342 (Tex.
2000). We reverse a trial court's order on custody
modification only ...