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Dobyanski v. Breshears

Court of Appeals of Texas, First District

May 3, 2018


          On Appeal from the 308th District Court Harris County, Texas Trial Court Case No. 2011-47824

          Panel consists of Justices Bland, Lloyd, and Caughey.



         Clint Thomas Dobyanski brings a restricted appeal, challenging the trial court's default judgment granting Michelle Breshears f/k/a Michelle Hanks's motion to modify Dobyanski's child-support obligation for their six-year-old son, Tom (a pseudonym). Dobyanski contends that the trial court erred in granting a default judgment because legally insufficient evidence supports (1) the statutory grounds that justify modification, (2) the increase in the amount of child support owed, (3) a deviation from the statutory child-support guidelines, and (4) a finding that the child is disabled and entitled to child support into adulthood. Hanks did not submit a response brief. We reverse and remand.


         Tom was born in 2011. When he was about 18 months' old, Hanks began legal proceedings to adjudicate Dobyanski's paternity. Dobyanski and Hanks entered into a mediated settlement agreement (MSA), and the trial court signed an agreed order setting out the parents' visitation schedules, duties as joint managing conservators, and child-support obligations. The agreed order requires Dobyanski to pay $490 per month until Tom reaches the age of 18. Neither the MSA nor the agreed order identifies Dobyanski's occupation or income. The MSA states that Hanks is self-employed, but it does not show the type of self-employment she has or the amount of income she earns from it.

         About five years after the trial court signed the agreed order, Hanks petitioned the trial court to modify the amount of child support. Dobyanski was served with citation, but he did not answer or appear for trial.

         During the bench trial, Hanks provided documents prepared by Tom's physicians in 2015 and 2016, stating that Tom had been diagnosed with vaccination delay, oppositional defiance disorder, attention deficit hyperactivity disorder; developmental language disorder, and autism spectrum disorder. Hanks attested that Tom visited a psychiatrist every two weeks. Most recently, the psychiatrist had prescribed Abilify, but had not yet found a medication that provided Tom with a long-term therapeutic benefit.

         Hanks testified that Tom was attending special education classes during the school day. Hanks informed the trial court that, on a school day, Tom's schedule "has to be almost exactly the same every day." According to Hanks, Tom "just requires a very high level of care. You cannot take your eyes off him." She told the trial court that she believed Tom's disability would prevent her from working full-time.

         In addressing Dobyanski's financial status, Hanks testified that Dobyanski was currently employed by Union Pacific Railroad as a conductor. She told the trial court that she discovered that an agreed order had been entered in a suit against Dobyanski involving a second child. Hanks provided the trial court with the case number for that proceeding, but she did not introduce the agreed order or any documents from that proceeding as evidence. According to Hanks, the agreed order included a finding that, in 2015, Dobyanski had gross monthly resources of $7, 437.56 and a net monthly income of $5, 423.30. She further stated that the agreed order required Dobyanski to pay $600 in monthly child support for that child.

         Hanks requested an increase to $1, 200 in monthly child support. She based the requested amount on the findings concerning Dobyanski's 2015 income in the other child-support proceeding, "as well as any increase [in income] [Dobyanski] could have had" since then. Hanks conceded that under the guidelines, Dobyanski would not owe $1, 200 in monthly support unless he had a gross monthly income of $9, 200, substantially more than the amount she testified that the Attorney General established in a finding in the other suit. She nevertheless opined that Dobyanski was capable of earning that much because, in 2015, he was "constantly telling [Hanks] he was working" as a reason for cancelling visitation with Tom.

         Hanks concluded her testimony by asking the trial court to order Dobyanski to pay the increase in monthly child support because of Tom's disability and to find that Tom was disabled and would require continuous care beyond the age of 18.

         The trial court's "Default Final Order of Modification" includes the following findings:

• "There has been a substantial and material change in circumstance that warrants a ...

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