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In re K.A.M.S.

Court of Appeals of Texas, Fourteenth District

August 6, 2019

IN THE INTEREST OF K.A.M.S. & K.A.S., CHILDREN

          On Appeal from the 311th District Court Harris County, Texas Trial Court Cause No. 2006-26052

          Panel consists of Justices Wise, Zimmerer, and Spain.

          OPINION

          Charles A. Spain Justice

         Appellant Gilberto Sanchez (Father) appeals from a final order in a suit to modify a parent-child relationship.[1] See Tex. Fam. Code Ann. § 109.002 (Supp.). He argues that the trial court abused its discretion when it: (1) appointed appellee Crystal Farrow (Mother) sole managing conservator; (2) modified Father's standard possession order; (3) increased Father's monthly child-support and medical-support payments; and (4) awarded Mother's attorney her attorney's fees. We conclude that the attorney's-fee award was not supported by legally-sufficient evidence. Therefore, we reverse the portion of the trial court's final order regarding attorney's fees, and remand the case to the trial court for further proceedings limited to Mother's attorney's-fee discovery-sanction claim. We otherwise affirm.

         I. Background

         2006 paternity order.

         In 2006, Mother filed the original SAPCR, and on December 18, 2006, the trial court signed an order adjudicating Father the parent of two children born to Mother, K.A.M.S. and K.A.S. See Tex. Fam. Code Ann. §§ 101.023, 160.636(a). The trial court ordered that Mother and Father have joint-managing conservatorship, Mother has the exclusive right to determine the children's primary residence within Harris County, and Father has standard possession and access. See Tex. Fam. Code Ann. §§ 101.016, 101.029, 153.002, 153.134(b), 153.251; Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 147, amended by Act of May 12, 2015, 84th Leg., R.S., ch. 117, § 3, 2015 Tex. Gen. Laws 1119, 1120 (current version at Tex. Fam. Code § 153.005(a)(1)). Father was ordered to pay Mother $615.00 per month in child support and to provide the children with health insurance or reimburse Mother for the cost of their insurance. See Tex. Fam. Code Ann. §§ 101.015, 154.001(a) (Supp.); Act of May 24, 2001, 77th Leg., R.S., ch. 1023, § 3, 2001 Tex. Gen. Laws 2240, 2240, amended by Act of May 27, 2015, 84th Leg., R.S., ch. 1150, § 8, 2015 Tex. Gen. Laws 3868, 3869 (current version at Tex. Fam. Code § 154.008).

         2013 modification order.[2]

         On September 18, 2013, the trial court signed an order that Father pay Mother his child-support and medical-support arrears. See Tex. Fam. Code. Ann. § 157.263. The order also modified Father's child-support obligation based on a material and substantial change in circumstances to $440.00 a month, plus $60.00 a month in cash medical support. See Tex. Fam. Code Ann. §§ 156.001, 156.402; Act of May 16, 2011, 82nd Leg., R.S., ch. 508, § 3, 2011 Tex. Gen. Laws 1264, 1264, amended by Act of May 27, 2015, 84th Leg., R.S., ch. 1150, § 29, 2015 Tex. Gen. Laws 3868, 3875-76 (current version at Tex. Fam. Code § 156.401(a)(1)).

         Current modification suit.

         Mother filed the current SAPCR as a modification petition in 2017. Mother requested that she be named sole managing conservator of the children, Father be ordered to pay increased child support and the health-insurance premium for the children, Father have possession of and access to the children at times and dates reached by agreement of the parties, and Father pay reasonable attorney's fees to Mother's attorney. See Tex. Fam. Code Ann. §§ 106.002, 156.001, 156.101, 156.402; Act of May 16, 2011, 82nd Leg., R.S., ch. 508, § 3, 2011 Tex. Gen. Laws 1264, 1264 (amended 2015).

         Mother filed a motion to compel discovery and for sanctions. The trial court signed an order granting Mother's motion to compel and ordering Father to pay attorney's fees, expenses of discovery, and court costs totaling $2, 011.65 to Mother's attorney.

         At the bench trial, Mother, Father, and Mother's attorney testified. Before rendering judgment, the trial court interviewed K.A.M.S., then fourteen-years old, and K.A.S., then twelve-years old, in chambers. See Tex. Fam. Code. Ann. §§ 153.009, 156.101(a)(2). Mother requested a record of this interview, but it is not included in the reporter's record before us. See Tex. Fam. Code Ann. § 153.009(f).[3]

         The trial court concluded there had been a material and substantial change in circumstances since the 2006 paternity order and that modifying the order was in the best interest of the children. See Tex. Fam. Code Ann. §§ 153.002, 156.101(a)(1). The trial court named Mother sole managing conservator and Father possessory conservator. See Tex. Fam. Code Ann. §§ 153.005 (Supp.), 153.006. The trial court concluded that a standard possession order was inappropriate or unworkable under the circumstances, a modified possession order was not more restrictive than necessary to protect the best interest of the children, and Father shall have possession at times mutually agreed to in advance by the parties. See Tex. Fam. Code Ann. §§ 153.193, 153.252-.253, 153.256.

         The trial court also concluded there had been a material and substantial change in circumstances since the 2013 modification order. The trial court concluded that Father was intentionally underemployed, and his actual income was significantly less than his earning potential. See Tex. Fam. Code Ann. § 154.066(a). The trial court concluded that Father's potential gross income was $3, 333.33 per month, with guideline support at a rate of $500.00 per month.[4] The trial court further concluded that application of the guideline support for Father's potential income was not in the best interest of the children and was unjust or inappropriate under the factors outlined in Family Code section 154.123(b)(1), (2), (3), (4), (5), (7), (12), (13), (15), and (17). See Tex. Fam. Code Ann. §§ 154.122-.123. The trial court therefore set Father's child support at $650.00 per month for both children and $520.00 per month for one child after emancipation of the older child. The trial court ordered Mother to maintain health insurance for the children and Father to reimburse Mother cash medical support of $132.00 per month.

         The trial court concluded that reasonable and necessary attorney's fees of $9, 800.00 were incurred by Mother in retaining the services of her attorney, including $2, 000.00 Father previously was ordered to pay in the order on Mother's motion to compel discovery and for sanctions. The trial court ordered Father to pay Mother's attorney directly.

         The trial court signed its final order on January 2, 2018. Father did not request findings of fact or conclusions of law or file a motion for new trial. Father appealed. See Tex. Fam. Code Ann. § 109.002 (Supp.).

         II. Analysis

         Trial courts have wide discretion with respect to determining the best interest of a child and over custody, control, possession, support, and visitation matters. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.-Houston [14th Dist.] 2009, no pet.). We therefore review the trial court's granting of Mother's petition to modify for an abuse of discretion. See Gillespie, 644 S.W.2d at 451; In re A.L.E., 279 S.W.3d at 427.

         The trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). The trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support its decision. In re A.L.E., 279 S.W.3d at 428; see Worford, 801 S.W.2d at 109.

         Under this abuse-of-discretion standard, legal and factual sufficiency are not independent grounds of error, but instead are relevant factors to determine if the trial court abused its discretion. In re A.L.E., 279 S.W.3d at 427; see Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). When examining legal sufficiency, we review the entire record, considering evidence favorable to the finding if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018); In re P.A.C., 498 S.W.3d 210, 214 (Tex. App.-Houston [14th Dist.] 2016, pet. denied). We indulge every reasonable inference that would support the challenged finding. Gunn, 554 S.W.3d at 658. Evidence is legally sufficient if it would enable reasonable and fair-minded people to reach the decision under review. Id.

         For a factual-sufficiency review, we examine the entire record and consider evidence favorable and contrary to the challenged finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam); In re P.A.C., 498 S.W.3d at 214. We may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain, 709 S.W.2d at 176.

         In a bench trial, the trial court is in the best position to observe and assess the witnesses' demeanor and credibility, and "to sense the forces, powers, and influences that may not be apparent from merely reading the record on appeal." Taylor v. Meek, 276 S.W.2d 787, 790 (Tex. 1955); In re A.L.E., 279 S.W.3d at 427 (internal quotation marks omitted). As a result, an appellate court defers to a trial court's resolution of underlying facts and to credibility determinations that may have affected its determination, and will not substitute its judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).

         A. Modification of conservatorship and of possession and access

         We construe Father's first and second issues as challenging the trial court's discretion in modifying (1) the conservatorship of the parties from joint managing conservators to sole managing conservator (Mother) and possessory conservator (Father)[5] and (2) Father's standard visitation order to possession at times mutually agreed to in advance by the parties. Father acknowledges that "[c]ourts have particularly wide latitude in establishing the specific terms and conditions of visitation and conservatorship." However, according to Father, the trial court's decision "was based on a narrow review of the law, and needs to be reversed." We disagree.

         In addressing Father's arguments, we remain mindful that "[t]he best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child." Tex. Fam. Code Ann. § 153.002. Family Code section 156.101, "Grounds for Modification of Order Establishing Conservatorship or Possession and Access," in pertinent part provides:

(a) The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be in the best interest of the child and:
(1) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of:
(A) the date of the rendition of the order ...

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