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In re C.P.K

Court of Appeals of Texas, Seventh District, Amarillo

May 10, 2018

IN THE INTEREST OF C.P.K., A CHILD

          On Appeal from the 272nd District Court Brazos County, Texas Trial Court No. 14-003039-CV-272, Honorable Travis B. Bryan, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          MEMORANDUM OPINION

          BRIAN QUINN CHIEF JUSTICE

         Elizabeth, mother of C.P.K., a child, appeals from an order in a suit to modify the parent child relationship. Upon addressing each of her four issues, we affirm.[1]

         Issue One - Findings of Fact, Conclusions of Law

         Through the first issue, Elizabeth complains of the trial court's failure to comply with her request for findings of fact and conclusions of law. Such findings and conclusions were executed by the trial court on August 2, 2017 but omitted from the appellate record.

         They have since been made a part of the appellate record via a supplemental clerk's record. Once they were filed, both Elizabeth and Peter (C.P.K.'s father) were afforded and accepted the opportunity to submit supplemental briefings. Thus, Elizabeth's first issue is moot, and we overrule it.

         Issue Two - Pickup and Delivery of the Child

         In her second issue, Elizabeth contends that the trial court erred in failing to modify the provision of a previously agreed to order concerning the pickup and delivery of C.P.K. Modification was sought to accommodate Elizabeth's work schedule, minimize the "travel burden on Elizabeth's young daughter" who is not the child of Peter, and relieve "the parties" from travelling "with young children at night." We overrule the issue.

         A trial court may modify an order providing for the terms and conditions of conservatorship to, possession of, or access to a child if 1) the change is in the child's best interests, and 2) the circumstances of the child, a conservator or other party have materially and substantially changed since the order was issued. In re L.G.H., No. 10-16-00018-CV, 2017 Tex.App. LEXIS 4088, at *3-4 (Tex. App.-Waco May 3, 2017, no pet.) (mem. op.). This obligates the party seeking the modification to show, among other things, that the modification "'would be a positive improvement for the child Id. (quoting In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000)) (emphasis added). Moreover, a reviewing court may reverse the trial court's decision on the matter only when it appears from the record as a whole that the trial court abused its discretion. Id. A trial court abuses its discretion when its decision is arbitrary, unreasonable or made without reference to guiding rules and principles. Id. at *4. In assessing whether such an abuse occurred, we must view the evidence in a light most favorable to the decision. Id. Finally, to properly present an issue on appeal, the appellant's brief must contain a clear and concise argument for the contentions made, with appropriate citations to the record and to supporting authorities. Id. at *5.

         The pickup and delivery times and locations at issue appeared in the "Agreed Order on Suit Affecting the Parent Child Relationship" executed by the trial court on April 9, 2014. The terms Elizabeth sought to modify were terms to which she agreed and pertain to the time at which the child was to be made available to Peter. Little was said in her brief about how the change would be in the best interests of the child C.P.K., other than concluding as much. Little was said about how the change "would be a positive improvement for the child [C.P.K.]." Instead, her argument focused on the convenience to her and her second child and how Peter had a flexible work scheduled which could be modified to accommodate hers.

         An element of the applicable test is not the convenience to the parent but rather the best interests of the child. And, it would not have been unreasonable for a trial court to construe Elizabeth's request as merely seeking an accommodation for her own benefit as opposed to a change enhancing C.P.K.'s best interests. Thus, we cannot say that she carried her burden to prove that the trial court abused its discretion in denying the modification at issue.

         Issue Three - Child Support

         Next, Elizabeth contends that the trial court erred by increasing Peter's monthly child support obligation to only $625 rather than $773.57. It was $475 per month. Allegedly, the evidence illustrated that during a nine-month period between January of 2015 through September of 2015, Peter deposited approximately $49, 207 into a bank account. Dividing that by the number of months encompassed within January through September (i.e., 9), equals $5, 467. The latter is the beginning point in calculating Peter's gross monthly income, according to Elizabeth. From it she deigned to subtract approximately $194 to reflect a "credit" and his health insurance obligation. The resulting amount allegedly reflected his true gross monthly income, and "[u]sing the 2015 Texas Attorney General Tax Charts, if [Peter's] adjusted monthly gross ...


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