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In re T.A.M.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

February 23, 2017

IN THE INTEREST OF T.A.M., A CHILD

         On appeal from the 94th District Court of Nueces County, Texas.

          Before Justices Rodriguez, Contreras, and Longoria Memorandum

          MEMORANDUM OPINION

          NELDA V. RODRIGUEZ Justice

         We 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.

         The 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.

         I. Background

         This 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.

         This 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 ..... "

         According to A.M.'s testimony, he had agreed that J.F.L. should pay no child support until she was able to support herself.

         On 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 support.

         A.M. 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.

         The 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, infra.

         During 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.

         After 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 followed.

         II. Material and Substantial Change in Circumstances

         By her 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.

         A. Applicable Law

         When 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 (Tex. 2011).

         The 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 ...


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