Court of Appeals of Texas, Eighth District, El Paso
IN THE INTEREST OF S.H. and K.H., Children.
from the 65th District Court Of El Paso County, Texas (TC#
McClure, C.J., Rodriguez, and Palafox, JJ.
T. RODRIGUEZ, JUSTICE
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.
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.
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.
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, (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."
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.
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.
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
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.
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.
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