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stating in non-enforcement modification suit that court of continuing jurisdiction may order one parent to pay the reasonable attorney's fees of the other parent as necessaries for the benefit of the children, but concluding that trial court abused its discretion by concluding that fees were necessaries under the facts and circumstances of the case under review
Summary of this case from Tucker v. ThomasOpinion
No. 05-03-00249-CV.
Opinion issued August 25, 2003.
Appeal from the 255th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 97-03845-S.
Reversed and Rendered.
Before Chief Justice THOMAS AND Justices FARRIS and ROSENBERG.
The Honorable David F. Farris, Retired Justice, Second District Court of Appeals, Fort Worth, Texas, sitting by assignment.
The Honorable Barbara Rosenberg, Former Justice, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
MEMORANDUM OPINION
Sarah Melinda Stevens appeals from the trial court's order modifying the amount of child support to be paid by Jeffery Allan Stevens. In seven issues, Sarah claims the trial court abused its discretion in reducing the child support payments, changing the children's medical insurance, and awarding Jeffery his attorney's fees. Because Jeffery did not meet his burden of proof, we conclude the trial court abused its discretion in modifying the child support and medical insurance payments, and awarding attorney's fees. Accordingly, we reverse and render the trial court's judgment.
The Stevens' final decree of divorce was signed on December 17, 1997. In the decree, Jeffrey was ordered to pay child support, medical insurance, and 100% of any uninsured medical expenses for the children. On October 2, 2001 Jeffery filed a motion to modify. His last live pleading sought a decrease in child support because circumstances "have materially and substantially changed since the rendition of the order to be modified." He requested the court consider travel expenses in calculating the amount of child support to be paid. He also requested the court change the division of payment for the children's uninsured medical expenses. Sarah filed a counter petition to modify requesting an increase in child support, entry of a withholding order, and attorney's fees.
The issues were tried to an associate judge. The associate judge reduced the child support to be paid by Jeffrey, ordered Sarah to pay for the children's medical insurance, and awarded Jeffery a judgment of $8,000 for his attorney's fees. The associate judge denied all of the relief requested by Sarah. The trial court entered judgment on the recommendations of the associate judge and filed findings of facts and conclusions of law.
In issues one through five, Sarah complains that the trial court should not have modified the support order. She argues that there is no evidence to support a reduction in child support and there are no pleadings and no evidence to support changing payment of medical insurance. To invalidate a child support reduction, she also asserts the evidence shows Jeffery was voluntarily unemployed or underemployed or that he was engaged in a joint enterprise with his current wife which resulted in net resources in excess of $6,000 per month. Additionally, she complains the court improperly considered evidence from a previous hearing.
We review a trial court's decision to deny or grant a motion to modify a child support order for an abuse of discretion. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Nordstrom v. Nordstrom, 965 S.W.2d 575, 577-78 (Tex.App.-Houston [1st Dist.] 1997, pet. denied). The test for abuse of discretion is whether the court acted arbitrarily or unreasonably, that is without reference to guiding rules and principles. Nordstrom, 965 S.W.2d at 578. In making this determination, we must view the evidence in the light most favorable to the actions of the trial court and indulge every legal presumption in favor of the judgment. Id. We must uphold the trial court's decision as long as there is some evidence of a substantive and probative character to support its decision. Id.
A trial court may modify a prior child support order if "the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order's rendition." Tex. Fam. Code Ann. § 156.401(a)(1) (Vernon 2002). In determining whether there has been a material and substantial change in circumstances, it is well settled that the trial court must compare the financial circumstances of the children and the affected parties at the time the existing support order was entered with their circumstances at the time the modification is sought. Tucker v. Tucker, 908 S.W.2d 530, 532 (Tex.App.-San Antonio 1995, writ denied); Hammond v. Hammond, 898 S.W.2d 406, 407-08 (Tex.App.-Fort Worth 1995, no writ); Penick v. Penick, 780 S.W.2d 407, 408 (Tex.App.-Texarkana 1989, writ denied); Liveris v. Ross, 690 S.W.2d 60, 61 (Tex.App.-Houston [14th Dist.] 1985, no writ). Without evidence of the circumstances at the time of the entry of the existing support order, the trial court cannot determine whether there has been a material and substantial change in the circumstances of the children or the parties affected by the order. Swate v. Crook, 991 S.W.2d 450, 453 (Tex.App.-Houston [1st Dist.] 1999, pet. denied); Liveris, 690 S.W.2d at 61. As the movant, it was Jeffery's burden to show the requisite material and substantial change in circumstances since the entry of the most recent order. In the interest of Striegler, 915 S.W.2d 629, 635 (Tex.App.-Amarillo 1996, writ denied); Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.-Houston [1st Dist.] 1993, writ denied).
Jeffery presented no evidence of the financial circumstances of the children, Sarah, or himself at the time of entry of the support order in the 1997 divorce decree. Rather, he presented evidence of his financial circumstances for the next year. In fact, Jeffrey objected and the trial court excluded evidence offered by Sarah of his earning at the time of divorce. Because there is no evidence of the financial circumstances of the children or the affected parties at the time of the prior child support order, the trial court abused its discretion in decreasing Steven's monthly child support obligation. See London v. London, 94 S.W.3d 139, 145 (Tex.App.-Houston [14th Dist.] 2002, no pet.). We sustain Sarah's first and second issues.
Having resolved Sarah's first and second issue in her favor we need not resolve her fourth and fifth issues involving Jeffery's underemployment or joint venture with his current wife and consideration of evidence in other hearings. Further, because we have concluded that Jeffery did not meet his burden to establish a material change in circumstances, he has not met his burden to change the manner of payment of the medical insurance. Accordingly, we resolve Sarah's third issue in her favor.
In Sarah's sixth and seventh issues she complains about the trial court's award of attorney's fees. In family law matters, the court has broad discretion in awarding attorney's fees. Tex. Fam. Code Ann. § 106.002 (Vernon 2002); Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996). Attorney fees rendered in prosecution or defense of a suit affecting the parent-child relationship may be awarded as necessaries to the child, even where the fees are incurred by the unsuccessful party. Roosth v. Roosth, 889 S.W.2d 445, 455 (Tex.App.-Houston [14th Dist.] 1994, writ denied). We have concluded that Jeffery was not a successful party. In reviewing the findings of fact and the evidence supporting the fees, we conclude that the services performed by Jeffery's attorney had no relationship to the needs of the children. We resolve Sarah's sixth and seventh issues in her favor.
Having resolved Sarah's first, second, third, sixth and seventh issues in her favor, we reverse the judgment of the trial court. We render judgment that all relief requested by Jeffrey Allan Stevens in his first amended petition to modify parent-child relationship is denied.