Modification

Texas Appeals Court Affirms Modification Naming Father Sole Managing Conservator

Published on: June 14, 2024 | by Kelly McClure

To modify a Texas custody order, the court must find that there has been a material and substantial change in circumstances and that the modification would be in the children’s best interest. In a recent case, a mother challenged the court’s finding that it was in the children’s best interest for the father to be the sole managing conservator following involvement by the Department of Family and Protective Services.

History

When the parents divorced, they were named joint managing conservators and the mother was awarded the right to designate the children’s primary residence.

The mother testified that the father did not regularly visit the children or telephone them. She said she “moved a lot” with the children and did not communicate with them. She was homeless for a week or two. The children stayed in with their father’s mother while the mother stayed in her car.

Texas Court Denies Decrease in Child Support After Mother’s Remarriage

Published on: June 6, 2024 | by Francesca Blackard

It can be difficult to modify a child support order to decrease the child support obligation. A father recently appealed the denial of his request for a decrease in his above-guideline child support obligation without step-downs. Generally, a child support order for multiple children will provide for a decrease in the child support obligation as support ends for each child. In this case, however, the parties signed an agreement for additional child support.

Original Order

The children were 17, 15, and 12 when the parents divorced in 2019. The parents were named joint managing conservators. The father’s gross yearly income was about $500,000. Pursuant to the decree, he was required to pay the mother $4,000 per month until all of the children graduated high school or were emancipated. He was also required to pay all of their uninsured medical, vision, and dental expenses until they reached the applicable deductible, and half after the deductible was met. The parties signed a separate “Agreement Regarding Additional Agreed-Upon Child Support” that required the father to pay an additional $2,000 per month if his gross income was more than $500,000 in a calendar year. Neither the decree nor the agreement had any provisions for step-downs.

The father testified he agreed to the extra provisions so the children and mother could stay in the area and in their current schools. The mother claimed she would not be able to stay in central Austin without the above-guideline support and the children would be required to go to different schools.

Texas Appeals Court Upholds Child Support Modification

Published on: May 20, 2024 | by Kelly McClure

Texas family law matters are often complex. A father recently challenged a modification order changing his child support obligation after a lengthy and somewhat complicated litigation involving the child.

The mother petitioned for enforcement of child support and medical support in September 2022, asking the father be held in contempt and ordered to pay arrearages for child support and medical support, as well as attorney’s fees.

Enforcement and Modification Hearing

According to the appeals court, the parties and court treated the matter as a modification action as well as an enforcement action during the bench trial. The father had previously been ordered to pay $592 in child support and $92 in medical support monthly. It was established at trial that the mother had been receiving $834 in monthly Veterans Administration payments on behalf of the child since January 2021 because the father was a veteran. The mother also testified the father received social security disability benefits and income from business ventures. The father was not present, but was represented by counsel at trial.

Texas Appeals Court Affirms Spousal Maintenance Modification

Published on: March 4, 2024 | by Kelly McClure

A spouse paying Texas spousal maintenance may seek modification if there has been a material and substantial change in circumstances, which may include significant change in their income. In a recent case, a former husband challenged a modification award based on the modified amount of maintenance as well as the court’s denial of his request to apply the modification retroactively.

The parties’ 2011 Agreed Final Divorce Decree ordered the husband to pay $1,150 in monthly spousal maintenance until the wife remarried or died or until her disability was removed or the trial court otherwise rendered a new order. The husband earned about $80,000 per year at the time.

Motion for Modification

The husband petitioned for modification in November after he retired the previous June. The court granted the modification in an order signed in June 2019, although the hearing occurred in May 2016. The court granted the husband’s motion for reconsideration and vacated the order.

Texas Appeals Court Affirms Custody Modification Contrary to Child’s Preference

Published on: February 4, 2024 | by Kelly McClure

In a Texas nonjury custody proceeding, upon the request of a party or certain other interested individuals, the court must interview a child who is at least 12 years old or may interview a child under 12 in chambers to determine their wishes regarding conservatorship or the person who will have the exclusive right to determine their primary residence. Tex. Fam. Code § 153.009(a). The interview is intended to help the court make determinations regarding conservatorship and possession, but the court still has discretion to determine the child’s best interest. Tex. Fam. Code § 153.009(c). Case law has held that the court retains its broad discretion and can either consider the information from the interview or even ignore it. In re A.C. A father recently appealed a modification order that was not consistent with the child’s preference.

The parents were appointed joint managing conservators of their then two-year-old child in their 2009 divorce, with the father having the exclusive right to designate the child’s primary residence. A modification order in 2013 set forth the mother’s possession schedule, dependent on where she lived.

Modification Proceeding

The mother petitioned for modification in 2021, seeking the right to designate the child’s primary residence without a geographic restriction. She also asked that the father be limited to supervised visitation.

Texas Appeals Court Affirms Modification Making Mother Sole Managing Conservator

Published on: January 29, 2024 | by Kelly McClure

A parent seeking modification of a Texas custody order must prove a material and substantial change in circumstances has occurred and that the modification would be in the child’s best interest. Tex. Fam. Code § 156.101. A father recently appealed an order naming the mother sole managing conservator of their three children after the parents had previously shared joint managing conservatorship.

The parents’ agreed divorce decree named them both joint managing conservators of their three children and gave the mother the exclusive right to designate their primary residence.

According to the appeals court’s opinion, the father refused to give their two daughters back to the mother after his holiday visitation. He alleged it was unsafe for the girls to go back to the mother’s home with the son because the son had assaulted one of the daughters.

Texas Parent Seeking Modification of Custody Must Meet Burden of Proof When Other Party Defaults

Published on: December 30, 2023 | by Kelly McClure

A parent seeking modification of a Texas conservatorship order must show by a preponderance of the evidence that there has been a material and substantial change in circumstances and that the modification would be in the child’s best interest. A Texas appeals court recently held that the parent must meet this burden even if the other party defaults.

According to the appeals court’s opinion, the child was born in October 2019. The trial court signed an agreed order in February 2020 establishing paternity, naming both parents joint managing conservators, and awarding the mother the right to designate the child’s primary residence as well as other exclusive rights. The father had a modified possession schedule that started with supervised visitation and transitioned to unsupervised possession, and then a standard possession order after a specified number of visits.

Modification Proceeding

The father petitioned for modification, seeking a standard possession order without supervision. The mother did not appear at the hearings, and the court granted the requested order.

Redistribution of Assets Was Modification and Not Enforcement of Texas Divorce Decree

Published on: December 14, 2023 | by Kelly McClure

A trial court may vacate, modify, correct or reform its judgment or grant a new trial within 30 days after the judgment is signed. Tex. R. Civ. P. 329b. Additionally, if a party files a timely motion, the trial court has the power to take those same actions until 30 days after any timely motions are overruled by an order or operation of law. The court’s plenary power generally expires 30 days after the final judgment is filed if there is not a timely post-judgment motion.

Courts generally retain continuing subject-matter jurisdiction to clarify and enforce the property division set forth in a Texas divorce decree. The court has the authority to render additional orders to enforce, assist in the implementation of, or clarify the property division. It may specify the manner of the property division more precisely, but may not change the substantive property division. A court may order delivery of specific property through its enforcement power. If a party has not delivered property awarded pursuant to the divorce decree and delivery is not an adequate remedy, the court may award damages. Additionally, a court may render judgment against a party who fails to make monetary payments as awarded in a decree.

A former husband recently challenged a court order purportedly enforcing the property division in his divorce decree, arguing that it instead improperly modified the division.

Texas Appeals Court Affirms Custody Modification Despite Mother’s Decision Not to Relocate

Published on: November 27, 2023 | by Francesca Blackard

Texas custody orders commonly include geographic restrictions limiting a parent’s ability to relocate the children outside a specified area. Regardless of whether there is a geographic restriction, a parent may seek to prevent the other parent from relocating with the children, often through modification of the custody order to either modify or add a geographic restriction or to change the parent with the exclusive right to designate the children’s primary residence. A mother recently challenged a modification giving the father the right to establish the children’s primary residence after she provided him notice of her intent to move to another county.

According to the appeals court’s opinion, the parties were appointed joint managing conservators with equal possession in the agreed final divorce decree. The mother was awarded the exclusive right to establish the primary residence for their two children, with a geographic restriction.

Pursuant to the decree, the mother could move the children to Harris or Dallas County if she provided the father six months’ notice of her intent to relocate and if the father successfully “secure[d] a transfer in employment” to that county. She notified him in 2020 that she intended to move to Harris County.

Texas Court Denies Retroactive Termination of Child Support to Child’s 18th Birthday

Published on: October 30, 2023 | by Kelly McClure

A court may retroactively modify a Texas child support order in some circumstances, but it generally may only do so as to child support obligations that accrue after the earlier of the date of service of citation or an appearance in the modification suit. Tex. Fam. Code 156.401. A father recently challenged a modification terminating his child support obligation, arguing it should have applied retroactively to the date of his son’s eighteenth birthday.

When the son was fourteen, he enrolled in the American School, which is a private, distance-learning school. Students complete their course by correspondence and computer-based work. Students take two courses at a time and must complete a course before being provided another. Courses earn one-half to one unit, and students must earn eighteen units to graduate high school.

The son’s brother sadly died in April 2017. The mother moved out of the marital home in June and the parents filed for divorce in July. The son remained in the home with his father. With all of this going on, the son fell behind and performed no work for his courses for a period of nine to ten months.