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In re N.H.N.

Court of Appeals of Texas, Fourteenth District

June 27, 2019

IN THE INTEREST OF N.H.N., A CHILD

          On Appeal from the 246th District Court Harris County, Texas Trial Court Cause No. 2014-07634

          Panel consists of Justices Christopher, Bourliot, and Zimmerer.

          OPINION

          Tracy Christopher Justice.

         In this appeal from a father's motion to modify an agreed order respecting child support, Father contends that the trial court erred in failing to order Mother to pay him child support based on a material and substantial change in circumstances. He also challenges the trial court's failure to award him child support in pre- and post-judgment temporary orders. Because Father's attempted appeal of the pre-judgment temporary order was rendered moot by the trial court's final judgment, we dismiss that part of Father's appeal. Finding no abuse of discretion in the other challenged rulings, we affirm the trial court's final judgment and its denial of father's motion for temporary orders pending appeal.

         I. Background

         Father and Mother share one child, whom we refer to as Nestor.[1] Nestor's parents divorced in July 2010, and in September 2014, they agreed to a modification in the decree as it pertained to child support, possession and access, and conservatorship. At that time, Nestor lived with his father in DeKalb County, Georgia, and Nestor's mother resided in Harris County, Texas, where she continues to reside today. Although she was not required to do so under the modification, Mother voluntarily paid Father $200 per month for Nestor's benefit while Father and Nestor lived in Georgia.

         Father subsequently moved with Nestor to Orange County, California, and for several months, Mother voluntarily paid Father $400 per month for Nestor's benefit. When she ceased these payments, Father moved to modify the September 2014 agreement, particularly as it concerns child support. Mother filed a counter-petition in which she, too, asked to be awarded child support; however, she abandoned that request before trial.[2]

         After a bench trial, the trial court failed to find that the circumstances of Nestor or of a person affected by the September 2014 order had materially and substantially changed since that order was rendered. The trial court therefore did not modify the September 2014 order concerning child support. Father filed a notice of appeal, and subsequently moved unsuccessfully for a temporary order of child support pending appeal.

         In Father's first issue, he contends that the trial court could not find, and Mother could not properly allege, that there has been no material change in circumstances, because Mother filed a counter-petition requesting the same relief that Father requested, namely, the payment of child support. In his second issue, Father contends that the trial court abused its discretion denying his motions for pre-and post-judgment temporary orders for child support and in failing to award Father child support in the final judgment.

         II. Effect of Mother's Counter-Petition

         Father first contends that by filing a counter-petition requesting child support and the right to establish the child's primary residence, Mother judicially admitted that there has been a material and substantial change in circumstances, and thus, he was not required to prove such a change. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000) (a party's judicial admission bars that party from disputing the admitted fact and relieves the party's adversary of the burden of proving the admitted fact). We disagree.

         "Assertions of fact, not plead[ed] in the alternative, in the live pleadings of a party are regarded as formal judicial admissions." Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (quoting Hous. First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983)). And as the Supreme Court of Texas has repeatedly stated, "a judicial admission must be a clear, deliberate, and unequivocal statement." PPG Indus., Inc. v. JMB/Hous. Ctrs Partners Ltd. P'ship, 146 S.W.3d 79, 95 (Tex. 2004); Horizon/CMS Healthcare Corp., 34 S.W.3d at 905; Regency Advantage Ltd. P'ship v. Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex. 1996) (per curiam). But, Mother did not state in her live pleadings that there had been any change in circumstances. She stated only that "[Mother] should be designated as the conservator who has the exclusive right to designate the primary residence of the child. The residence of the child should be restricted to Harris County and its geographically contiguous counties," and Father "is obligated to support the child and should be ordered by the Court to make payments for the support of the child and to provide medical child support in the manner specified by the Court." Mother alleged no facts in support of these requests, which she later abandoned, instead stipulating to Father's exclusive right to designate the child's primary residence.

         Because Mother did not judicially admit to a material and substantial change in circumstances, Father was not relieved of the burden to prove such a change. We overrule Father's first issue.

         III. ...


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