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In re D.P.B.

Court of Appeals of Texas, Fifth District, Dallas

June 15, 2018

IN THE INTEREST OF D.P.B. AND D.Z.B.

          On Appeal from the 255th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-05-12682

          Before Justices Lang-Miers, Evans, and Schenck

          MEMORANDUM OPINION

          ELIZABETH LANG-MIERS, JUSTICE

         The trial court granted Father's motion to modify an April 29, 2015 order in this suit affecting a parent-child relationship. Mother appeals, contending the trial court erred by denying her motion for continuance, ordering her to pay Father "cash medical support" of $528.00 per month, and failing to dismiss the case when Father did not timely present an order to the court. Because Father did not meet his burden to prove a material change in circumstances regarding the children's medical support, we modify the trial court's order to delete those provisions, and affirm the trial court's order as modified.

         Background

         Mother and Father are the parents of D.P.B. and D.Z.B. In 2005, Mother and Father entered into an agreed child support review order appointing them joint managing conservators of D.P.B. The clerk's record does not contain the trial court's original order regarding D.Z.B. On April 29, 2015, the trial court rendered an "Order in Suit to Modify Parent Relationship" (the "2015 Order").

         On October 7, 2016, Mother filed a first amended petition to modify parent-child relationship.[1] Father filed a counter-petition to modify the 2015 Order on October 31, 2016. The trial court held a hearing on these petitions on November 7, 2016. The reporter's record reflects that at the time of the hearing, Mother had nonsuited her petition to modify. The trial court denied Mother's oral request to continue the hearing on the motion Father filed and proceeded to hear testimony from both Father and Mother. In its memorandum ruling of November 7, 2016, the trial court found "there has been a material and substantial change in circumstance in the children or a parent that warrants a modification" of the 2015 Order. The trial court's November 7, 2016 memorandum ruling includes an order that "Mother is Ordered to pay cash medical support to the Father in the amount of $528.00 per month beginning December 1, 2016 and every first of the month thereafter."[2] The memorandum ruling concludes: "The Case is set on 8.02 enter order or dismiss November 18, 2016 @ 9:00 a.m. If an Order is not presented to the Court on or before November 18, 2016 @ 9:00 a.m. the case will be dismissed."

         The trial court signed an "Order in Suit to Modify Parent Child Relationship" on November 21, 2016 (the "2016 Order"). This appeal followed.

         Standard of Review

         We review the trial court's decision to modify child support or conservatorship for an abuse of discretion. In re P.C.S., 320 S.W.3d 525, 530 (Tex. App.-Dallas 2010, pet. denied); In re C.C.J., 244 S.W.3d 911, 917 (Tex. App.-Dallas 2008, no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or without reference to guiding rules or principles. In re P.C.S., 320 S.W.3d at 530. In family law cases, traditional sufficiency standards of review overlap with the abuse-of-discretion standard. In re A.P.B., 291 S.W.3d 91, 95 (Tex. App.-Dallas 2009, no pet.). Challenges to the sufficiency of the evidence do not constitute independent grounds for asserting error, but are relevant factors in determining whether the trial court abused its discretion. In re P.C.S., 320 S.W.3d at 531. To determine whether the trial court abused its discretion because the evidence is insufficient to support its decision, we consider whether the trial court (1) had sufficient evidence upon which to exercise its discretion, and (2) erred in its exercise of discretion. In re A.P.B., 291 S.W.3d at 95. We conduct the applicable sufficiency review with regard to the first question. Id. A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision. In re C.C.J., 244 S.W.3d at 917.

         We also review the denial of a motion for continuance for abuse of discretion. In re T.A.S., No. 05-15-01101-CV, 2016 WL 279385, at *3-4 (Tex. App.-Dallas Jan. 22, 2016, no pet.) (mem. op.) (citing Wal-Mart Stores, Tex., LP v. Crosby, 295 S.W.3d 346, 356 (Tex. App.-Dallas 2009, pet. denied)). The denial will be reversed only if the trial court's action was arbitrary, unreasonable, or without reference to any guiding rules or principles. Id. (citing Garner v. Fidelity Bank, N.A., 244 S.W.3d 855, 858 (Tex. App.-Dallas 2008, no pet.)).

         Discussion

         A. Continuance

         In her first issue, Mother contends the trial court erred by denying her motion for continuance. When a party moves for continuance, rule 251 requires the party to show sufficient cause supported by affidavit, consent of the parties, or by operation of law. Tex.R.Civ.P. 251. Mother's oral motion[3] did not meet the requirements of rule 251.

         Generally, when a movant fails to comply with rule 251's requirement that the motion for continuance be "supported by affidavit, " an appellate court must presume the trial court did not abuse its discretion by denying the motion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). Because Mother's oral motion does not satisfy the requirements of rule 251, the trial court did not abuse its discretion by denying it. See In re A.M., 418 S.W.3d 830, 838 (Tex. App.-Dallas 2013, no pet.); Strong v. Strong, 350 S.W.3d 759, 762 (Tex. App. Dallas 2011, pet. denied).

         Mother argues, however, that by his counter-petition, Father instituted an original suit. She contends that she should have been served with process, and she argues that other requirements of the rules of civil procedure for original suits should have been satisfied but were not. Father's counter-petition, however, was filed on October 31, 2016, when Mother's petition to modify had been pending for a year. Numerous motions for temporary orders had been filed and heard during that year. Mother also filed a first amended petition to modify on October 7, 2016, a month before trial. Consequently, under the rules of civil procedure, Mother had "appeared" in the suit, and could be served with Father's counter-petition by either service of citation or as provided in rule 21a. See Tex. R. Civ. P. 120 (defendant's appearance in open court has same force and effect as if citation had been duly issued and served as provided by law); Tex.R.Civ.P. 124 (when party asserts counterclaim against another party who has entered an appearance, counterclaim may be served in any manner prescribed for service of citation or as provided in rule 21a); Tex.R.Civ.P. 21a (methods of service, including mail, fax, or by electronic service); Tex. Fam. Code Ann. § 156.004 (Texas Rules of Civil Procedure applicable to filing of original lawsuit apply to suit for modification under family code Chapter 156). Father's counter-petition recited that "[n]o process is necessary at this time as Counter-Respondent has already made an appearance in this cause." Father's counter-petition also contained a certificate of service by his attorney, stating that the counter-petition was served in accordance with the rules of civil procedure. No further service was required. See In re A.L.H.C., 49 S.W.3d 911, 916-17 (Tex. App.-Dallas 2001, pet. denied) (where mother was served with rule 21a notice of counterclaim seeking termination of her parental rights, and thereafter entered an appearance in the proceedings, no further service was required).

         Mother also complains that under rule 190, Father's counter-petition should have been governed by a discovery control plan. See Tex. R. Civ. P. 190.1 (every case must be governed by discovery control plan). But Mother's operative petition already recited that discovery should be conducted under level two of rule 190. See Tex. R. Civ. P. 190.3 (Discovery Control Plan-by Rule (Level 2)). In addition, the rules require that if a continuance is sought on the ground that additional discovery is needed, the movant must aver by affidavit that the matters to be discovered are material, show the materiality of the discovery, and show that she has used due diligence to procure the matters. See Tex. R. Civ. P. 252; O'Connor v. O'Connor, 245 S.W.3d 511, 516 (Tex. App.- Houston [1st Dist.] 2007, no pet.). Mother did not provide the required affidavit to the trial court. We decide Mother's first issue against her.

         B. Medical Support

         In her second issue, Mother challenges the trial court's order "to pay cash medical support" of $528.00 per month to Father. A trial court's order pertaining to health insurance for the children will not be reversed on appeal unless the complaining party can show a clear abuse of discretion. Sink v. Sink, 364 S.W.3d 340, 347 (Tex. App.-Dallas 2012, no pet.). The trial court may modify a previous child support order 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 Supp. 2017). As movant, it was Father's burden to show the requisite material and substantial change in circumstances since the entry of the previous order. Cameron v. Cameron, 158 S.W.3d 680, 682 (Tex. App.-Dallas 2005, pet. denied). The trial court must examine and compare the circumstances of the parents and children at the time of the initial order with the circumstances existing at the time modification is sought. In re C.C.J., 244 S.W.3d at 917. The record must contain both historical and current evidence of the relevant person's financial circumstances. Id. at 917-18. Without both sets of data, the court has nothing to compare and cannot determine whether a material and substantial change has occurred. Id. at 918.

         The challenged paragraph of the 2016 Order provides:

Pursuant to section 154.182 of the Texas Family Code, [Mother] is ORDERED to pay [Father] cash medical support for reimbursement of health insurance premiums, as additional child support, of five hundred twenty-eight dollars and zero cents ($528.00) per month, with the first installment being due and payable on December 1, 2016 and a like installment being due and payable on or before the first day of each month until the termination of the current child support for all children under this order.

         A trial court "shall order medical support for the child as provided by Subchapters B and D." Tex. Fam. Code Ann. § 154.008 (West 2014). Under the 2015 Order, Father was required to continue to maintain health insurance for the children through his employment. The 2016 Order again continued this requirement, but for the first time ordered Mother to reimburse Father for medical support. The 2016 Order also added a requirement that Mother pay child support to ...


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