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In re J.D.A.

Court of Appeals of Texas, Fifth District, Dallas

December 19, 2017


         On Appeal from the 255th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-09-15331

          Before Justices Lang-Miers, Brown, and Boatright



         In this suit affecting the parent-child relationship, Mother appeals orders modifying child support and enjoining Maternal Grandfather from unsupervised access to her child, J.D.A. For the following reasons, we modify the trial court's final order in part, reverse it in part, and remand the case to the trial court for further proceedings consistent with this opinion.


         Mother and Father, parents of J.D.A., divorced in August 2011. Before the divorce, Father reported an outcry by J.D.A. of sexual misconduct by Maternal Grandfather. Child Protective Services (CPS) investigated the matter, which it resolved as "unable to determine." In the divorce proceeding, Father requested that Maternal Grandfather's access to J.D.A. be supervised. Following trial, the trial court signed a divorce decree appointing Mother and Father as joint managing conservators, giving Mother the exclusive right to designate the primary residence, and ordering Father to pay $1500 monthly for child support. The decree further denied Father's request that Maternal Grandfather's access to J.D.A. be supervised.

         Pursuant to a mediated settlement agreement, the trial court signed an Agreed Final Order Relating to Suit to Modify Parent/Child Relationship (Agreed Order) in November 2015. Mother and Father remained joint managing conservators, and Father continued to pay child support of $1500 per month. The Agreed Order, however, gave Mother the exclusive right to designate the primary residence, but only within the geographic boundaries feeding into J.D.A.'s elementary school in Coppell, Texas until Father resided within those boundaries. Once Father moved within those boundaries, the Agreed Order provided for a more equitable access and possession schedule. And, following entry of the Agreed Order, Father moved into the same Coppell apartment complex where Mother and J.D.A. lived, triggering the new schedule.

         Just three months later, Mother notified Father that she planned to move to her parents' home in Arlington, Texas. In response, Father filed a petition to modify parent-child relationship and request for sanctions. Among other things, Father requested that, should Mother move outside the geographic boundaries described in the Agreed Order, he be named sole managing conservator, J.D.A.'s residence and all periods of possession remain within the Agreed Order's geographical boundaries, Mother be ordered to pay child support, and Maternal Grandfather be allowed only supervised access to J.D.A.

         The trial court held a bench trial on Father's motion to modify. Mother represented herself pro se. She testified that she moved to her parents' house due to her financial situation. She had worked as a self-employed certified public accountant (CPA) on and off since 2003. She thought she may have reported income of $15, 000 on her 2015 tax return, but could not remember. She was earning an average of about $1000 per month at the time of trial. Her income depended on how many hours she could work and varied each month. She had suffered from Multiple Sclerosis (MS) since 2000. Her MS caused fatigue, which impacted the hours she could work. Her rent expense in Coppell was $1800 per month, and she had to pay for J.D.A.'s expenses when he was living with her. She also had extensive litigation costs, which required her to lower her expenses. She had borrowed $30, 000 on a credit card and was trying to pay $500 per month on that debt. Mother conceded that she was aware of her expenses, including the high litigation bills, during the settlement negotiations prior to entry of the Agreed Order.

         Father acknowledged Mother suffered from fatigue and questioned her physical capacity to raise J.D.A. He nevertheless believed she was "making more than what she told the Court" and "either lying to the court or underemploying herself." Maternal Grandfather testified that Mother did not have a regular income, and he had helped her financially since her move at the end of March 2016. She moved so she could pay her litigation costs and work with her doctor to regain her health.

         The trial court asked Mother why she was underemployed; Mother responded that it was due to her health and the ongoing litigation. The trial court then stated on the record, "I'll look up what a public accountant makes, and I'll determine what your child support is on that amount."

         The trial court issued a memorandum ruling the day of trial. Under the ruling, both parents remained joint managing conservators, but Father would determine the primary residence. Mother would pay child support of $652 per month based on the trial court's findings that Mother was intentionally underemployed and the median salary for a CPA in Tarrant County was $50, 000. The ruling also included a permanent injunction precluding Maternal Grandfather from unsupervised access to J.D.A. The trial court subsequently entered a Final Order in Suit to Modify Parent-Child Relationship consistent with the memorandum ruling. Mother filed a timely request for findings of fact and conclusions of law under Texas Rule of Civil Procedure 296. Thereafter, she also filed a notice and a supplemental notice of past due findings and conclusions. The trial court never entered the requested findings and conclusions, and Mother appealed to this Court.

         Child Support Order

         In her second issue, Mother contends the trial court abused its discretion in ordering her to pay monthly child support of $652. We review a trial court's child support order for abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re J. G. L., 295 S.W.3d 424, 426 (Tex. App.-Dallas 2009, no pet.). A trial court abuses its discretion if its decision is arbitrary, unreasonable, or without reference to any guiding rules or principles. In re J. G. L., 295 S.W.3d at 426; see Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). In family law cases, the abuse of discretion standard overlaps the traditional sufficiency standard of review; legal and factual sufficiency of the evidence are not independent grounds of error but are relevant factors as to whether a trial court abused its discretion. In re P.C.S., 320 S.W.3d 525, 530-31 (Tex. App.-Dallas 2010, pet. denied). If evidence of a "substantive and probative character" supports a trial court's judgment, it ...

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