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In re S.H.

Court of Appeals of Texas, Eighth District, El Paso

June 12, 2019

IN THE INTEREST OF S.H. and K.H., Children.

          Appeal from the 65th District Court Of El Paso County, Texas (TC# 2010CM6668)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          YVONNE T. RODRIGUEZ, JUSTICE

         This is an appeal from an order in a suit to modify the parent-child relationship. Appellee Michael Hogg (Hogg) was the petitioner in the trial court; Appellant Amabilia Payen (Payen) was the respondent. Payen asserts error in the modifications concerning possession of and access to the children, as well as child support. We affirm the order in its entirety.

         BACKGROUND

         Pursuant to the parties' Final Decree of Divorce, Payen and Hogg were appointed joint managing conservators of their two children, S.H. and K.H. Hogg was given the exclusive right to designate the primary residence of the children within El Paso County. Payen was granted possession and access according to the Standard Possession Order and was required to pay child support according to statutory guidelines. Hogg later filed a motion to modify the decree to increase the amount of child support based on changed circumstances. In response to that motion, Payen moved to modify the decree to designate her as managing conservator with the right to determine the primary residence of the children. She also requested that the provisions for possession and access, as well as child support, be modified accordingly.

         A jury trial was held in which the only issue submitted to the jury inquired whether the order designating Hogg as the conservator with the exclusive right to designate the primary residence of the children should be modified to designate Payen as having that exclusive right. The jury answered that the order should be so modified. The record shows that, upon receipt of the verdict, Payen assumed that the court would enter an extended standard provision for possession and access. Hogg objected on the ground that no evidence had been adduced concerning possession and access or child support. The court stated that a separate hearing would be held on possession and access.

         On November 16, 2015, at the close of an evidentiary hearing on possession and access, the court ruled that it would (1) employ a "two/two/five/five split" for possession of the children, [1](2) keep the holiday schedule the same, and (3) follow the standard possession order for the summer. The court also ordered that the children stay in their present school until the end of the 2015-2016 school year. After that time, Payen could decide what school to enroll them in. Concerning child support, the court stated, "I have Mr. Hogg as making 55, 715 and Ms. Payen making 73, 000." The court did not calculate the amount of the parties' child support obligations, but stated that child support would be equalized "now that [the parties] are going to be doing 50/50."

         On January 8, 2016, the court signed an "Order In Suit To Modify Parent-Child Relationship" ("Order") reflecting its November 16, 2015 rendition of judgment. That Order names Payen as the conservator with the exclusive right to designate the children's primary residence, grants possession and access to both parties utilizing a "2-2-5-5" schedule, and orders Payen to pay monthly child support of $412.63.

         Payen subsequently filed a motion to reform the Order to "utilize[] the Texas Standard Possession Order and the Texas guidelines for child support." At a hearing on that motion, Payen sought to present evidence that the "2-2-5-5" schedule ordered by the court was detrimental to the children. The court ruled that a motion to reform was not the appropriate vehicle and refused to permit the testimony. Payen later presented the excluded evidence in a bill of exception. Payen also asked the court at that time to recalculate its child support order based, in part, on changed circumstances occurring after the order was entered. The court refused that request.

         ISSUES

         Payen asserts that the trial court's Order contravenes the jury verdict designating her as the custodian with the exclusive right to determine the children's primary residence. Specifically, she contends that the court contravened the verdict by (1) setting roughly equal periods of possession during the school year; (2) directing that the children attend the school closest to Hogg; and (3) granting substantially greater possession to Hogg during the children's summer vacation. Payen also asserts as error that the court delegated the calculation of child support to Hogg's counsel, and that the calculation of child support was erroneous.

         Hogg responds that the terms of possession, access, and child support are matters within a trial court's discretion, and that the court here did not abuse that discretion. Hogg further contends that Payen waived any complaint concerning the sufficiency of the evidence underlying the court's exercise of its discretion because Payen did not file a request for findings of fact and conclusions of law or a motion for new trial.

         STANDARD OF REVIEW

         "Orders concerning child support and periods of possession will not be disturbed on appeal unless the complaining party can demonstrate a clear abuse of discretion." Norris v. Norris, 56 S.W.3d 333, 337 (Tex.App.-El Paso 2001, no pet.)(citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)(applying abuse of discretion standard with regard to child support order); Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)(applying abuse of discretion standard with regard to possession order)). A trial court does not abuse its discretion if there is "some evidence of a substantive and probative character" to support its decision. Norris, 56 S.W.3d at 338.

         DISCUSSION

         Possession and access

         Payen first notes that a trial court is statutorily prohibited from contravening a jury verdict on the issue of "the determination of which joint managing conservator has the exclusive right to designate the primary residence of the child." Tex.Fam.Code Ann. § 105.002. While this is a correct statement of the law, it has no application here. The jury determined that Payen should have the exclusive ...


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