Articles Posted in Modification

iStock-543681178-300x200A final and unambiguous Texas divorce decree that disposes of all of the marital property generally may not be relitigated.  The Texas Family Code allows the trial court to keep continuing subject matter jurisdiction to clarify and enforce the property division, but it cannot change or modify it.  In a recent case, a wife challenged an order purporting to clarify the division of the husband’s military retirement nearly 25 years after the divorce.

The parties divorced in 1996.  In the decree, the trial court found they were married for at least 18 years and 11 months and the husband had served at least 13 years and 9 months “of creditable service toward retirement.”

Trial Court Awards Wife 50% of Husband’s Military Retirement

The trial court awarded the wife “[a]ll right, title, and interest in and to fifty (50) percent of [the husband’s military] disposable retired or retainer pay” and 50% of all increases in the disposable retirement or retainer pay. The husband served for several more years.

Continue Reading ›

judge-and-gavel-in-courtroom-171096040-583b48533df78c6f6af9f0e3-300x225A Texas conservatorship order may be modified if doing so is in the child’s best interest and there’s been a material and substantial change in circumstances.  When a parent seeks modification, the other parent may file a counter-petition seeking their own modification.  In a recent case, a mother appealed a modification order in favor of the father after she had petitioned for modification.

According to the appeals court’s opinion, when the parties divorced, the trial court approved their agreement to be joint managing conservators with 50/50 custody.  The mother petitioned for modification, seeking primary custody and educational decision-making.   The father also sought appointment as primary conservator. He asked for modification allowing him to impose reasonable discipline and to limit the mother’s phone contact during his possession.

The mother pointed to the father’s allowing the son to stay alone, behavior at sporting events, storage of a gun, and a text message asking her to pick up the children because “he was done” with them.

Continue Reading ›

iStock-952098878-300x200When a party fails to participate in a Texas custody and child support proceeding, they do not have an opportunity to contest the evidence presented by the other side. The court may render judgment on the evidence presented by the other party.  In a recent case, a mother appealed a child support award that varied from the guidelines based on the evidence of the father’s income and resources she presented after he failed to appear in a modification proceeding.

According to the opinion of the appeals court, an agreed order entered in June 2017 named both parents joint managing conservators of the two minor children and required the father to pay $620 in child support each month. The father petitioned or modification of conservatorship and termination of the child support in early 2020.  In her counterpetition, the mother asked for a recalculation of child support, confirmation of child support arrearages, and modification of conservatorship.

Default Judgment Entered Against Father

The father failed to appear at trial in April 2021.  The court denied all modifications to conservatorship, possession, and parental rights and duties, but did confirm $24,082.48 in arrearages and increased child support to $1,700 per month.

Continue Reading ›

iStock-1175949984-300x200When the trial court appoints joint managing conservators in a Texas custody case, it must identify who has the right to determine the child’s primary residence with or without a geographic restriction.  Tex. Fam. Code Ann. § 153.134(b). The court must consider the child’s best interest.  The court may also modify the terms and conditions of the child’s conservatorship if doing so is in the child’s best interest.  Tex. Fam. Code Ann. § 156.101.

A father recently challenged a trial court’s modification order adding a geographic restriction broader than that he requested.  In the original order establishing the parent-child relationship, both parents were named joint managing conservators, with the mother having the right to determine the child’s primary residence without any geographic restriction.  Both parents lived in Kerr County at the time.

Father Seeks to Modify Prior Order

The father subsequently sought modification of the order to give him extended visitation and add a geographic restriction of Kerr County.  The trial court ultimately granted the extended visitation and added a geographic restriction of Kerr, Atascosa, and Bexar counties and counties contiguous to Kerr.

Continue Reading ›

iStock-182358076-300x200A court may modify a child’s conservatorship if there has been a material and substantial change in circumstances and the change is in the child’s best interest.  A mother recently challenged a court’s modification of her child’s conservatorship.

According to the appeals court’s opinion, the parents divorced following the mother’s affair with a married man.  The divorce decree named the parents joint managing conservators with neither having the exclusive right to designate the daughter’s primary residence.  The decree also incorporated an agreement for visitation, custody, and child support.  Eleven months later they both sought modification.

Changed Circumstances Since Divorce?

The mother married the man with whom she had the affair.  He had two children and a new baby with the mother. The police were twice called to the home due to arguments between the mother and stepfather. The mother and stepfather also separated twice, once for around three months and another time for a single night.

Continue Reading ›

5thingsdivorcecourt_header-300x163A court may clarify an order in a Texas suit affecting the parent-child relationship if it finds the order lacks sufficient specificity to be enforced through contempt.  Tex. Fam. Code Ann. § 157.421.  The court cannot make substantive changes through an order to clarify and such changes are not enforceable. Tex. Fam. Code § 157.423.  Substantive changes must be pursued through a modification suit.  Generally, to obtain a modification, a parent must show there has been a material and substantial change in circumstances and the modification will be in the child’s best interest.

Mother Appeals Clarification Order

A mother recently challenged a clarification order, arguing it had made a substantive change to the previous order.  The parties entered into an agreed order regarding their children in December 2016.  The father moved for clarification of language relating to extracurricular activities.  The agreed order provided in relevant part that the parents would put each child in a single extracurricular activity at a time and have a written agreement regarding the extracurricular activity.  The court granted the motion and revised the language to state that each parent may place each child in an extracurricular activity, but, instead of referencing an agreement, the clarified order provided there would be a written designation of the extracurricular activity.

The mother appealed, arguing the court erred in granting the motion because the language in the agreed order was not ambiguous or erroneous and that the revised language constituted a substantive change.

Continue Reading ›

iStock-839381426-300x200When a parent seeks modification of Texas custody, they generally must show there has been a material and substantial change in circumstances since the prior order was rendered and that the change is in the best interest of the children.  A parent petitioning to change the designation of the parent with the exclusive right to designate the child’s primary residence within one year of the prior order must also attach an affidavit making one of three allegations.  The affidavit may allege the child’s current environment may endanger their physical health or significantly impair their emotional development.  If the person with the exclusive right to designate the primary resident is seeking or consenting to the modification, the affidavit may allege the modification is in the best interest of the child. Finally, the affidavit may allege that the person with the exclusive right has voluntarily surrendered the child’s primary care and possession for six months or more and that the change is in the child’s best interest.  Tex. Fam. Code Ann. § 156.102(a).

In a recent case, a father appealed a summary judgment denying his petition for modification.  The parents were named joint managing conservators of the children in the 2014 divorce decree, but neither was given the exclusive right to determine their residence.  In 2018, the trial court gave the mother that right, with a geographic restriction.

Father Files Modification Suit

The father petitioned to modify the order, alleging a material and substantial change in circumstances and that the children’s current environment could endanger their health or significantly impair their emotional development. He further alleged the modification would be in the best interest of the children.  He also alleged the mother neglected the children.

Continue Reading ›

iStock-1163040189-300x200When parents cannot cooperate to make decisions regarding the children in a Texas custody case, the court may give one parent certain decision-making rights, even if the parents are joint managing conservators.  In a recent case, a father challenged a court order requiring him to cooperate in the children’s activities and to pay for half of the children’s tutoring expenses.

The parents were named joint managing conservators of the children in the divorce decree with a modified standard possession order. The mother was granted the exclusive right to designate their primary residence and the father ordered to pay child support.  Each parent was responsible for half of any extracurricular activity the parents agreed upon.

Mother Files Modification Suit

The mother petitioned for modification in 2018, seeking the right to make certain decisions after consulting with the father, continuation of certain extracurricular activities, and therapy for the children.  In a counterpetition, the father asked the court to give him the right to designate the primary residence and receive child support.  He also asked that the mother be required to schedule extracurricular activities only while she had the children.

Continue Reading ›

iStock-1183307633-300x169Generally, when a parent wants to modify the parent-child relationship over the objection of the other parent, they must show the court that there has been a material and substantial change in circumstances and that the modification is in the child’s best interest.  Often, modifications address major issues, such as where the child lives or the amount of child support. Modifications can address a variety of issues, however, including things like which parent makes medical or education decisions or whether a parent can travel with the child.

A father recently challenged a court order allowing a mother to travel internationally with the child.  According to the appeals court’s opinion, the parents were named joint managing conservators of the child when they divorced in 2017.  The mother was granted primary custody.  The following year, the mother petitioned for a modification, requesting the right to get a passport for the child and take her to visit her maternal grandfather in The Gambia.  The father objected and the trial court denied the request.

Mother Leaves Child with Relative During International Trip

The mother went to see her parents in The Gambia in July 2019.  She testified the father did not respond when she notified him she planned to travel, so she left the child with an aunt in Chicago.

Continue Reading ›

iStock-1331374129-300x200When a parent is intentionally unemployed, a court may order Texas child support based on that parent’s earning potential.  Tex. Fam. Code 154.066(a). A mother recently challenged a court’s finding she was intentionally unemployed, arguing instead that her mental health concerns prevented her from being employed.

When the parents divorced in 2010, the court ordered the mother to pay $150 in child support.

She sought to modify the custody order in 2018, and the other party responded by asking for more child support.  The mother asked the court to eliminate her child-support obligation altogether.

Continue Reading ›

Contact Information