Court of Appeals of Texas, Fifth District, Dallas
IN THE INTEREST OF D.P.B. AND D.Z.B.
Appeal from the 255th Judicial District Court Dallas County,
Texas Trial Court Cause No. DF-05-12682
Justices Lang-Miers, Evans, and Schenck
ELIZABETH LANG-MIERS, JUSTICE
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.
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").
October 7, 2016, Mother filed a first amended petition to
modify parent-child relationship. 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." 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
trial court signed an "Order in Suit to Modify Parent
Child Relationship" on November 21, 2016 (the "2016
Order"). This appeal followed.
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.
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.)).
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 did not meet the requirements of rule 251.
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.
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).
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.
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.
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.
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