in the Interest of H.E.W.M., a Child ( 2020 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00202-CV
IN THE INTEREST OF H.E.W.M., a Child
From the 451st Judicial District Court, Kendall County, Texas
Trial Court No. 16-443CCL
Honorable Kirsten Cohoon, Judge Presiding 1
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: April 15, 2020
AFFIRMED; MOTION FOR ATTORNEY’S FEES DENIED
James Brent Mansfield appeals the denial of his counter-petition seeking a downward
modification of his child support obligation. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Brent and Kelly were divorced in 2015. The agreed final decree, signed July 16, 2015, was
based upon a mediated settlement agreement and was signed by both parties, agreeing and
approving it as to form and substance. The decree required Brent to pay monthly child support for
their son, H.E.W.M., in the amount of $1,750.00 and to make monthly payments of $153.51 to
1
The Honorable Bill Palmer, formerly the presiding judge of the 451st Judicial District Court of Kendall County,
Texas, presided over the hearing on appellant’s counter-petition to modify the parent-child relationship and signed an
order denying the request to modify child support. The Honorable Kirsten Cohoon signed the final order that disposed
of all issues in the modification proceeding.
04-19-00202-CV
reimburse Kelly for health, dental, and vision insurance premiums pursuant to section 154.182 of
the Family Code. In June 2016, Kelly filed a motion to modify the decree. Kelly and Brent
mediated the issues raised in Kelly’s motion and reached agreement in September 2016 to modify
the terms of possession and access. However, the agreement was not presented to the court and the
proceeding remained pending in the trial court. In February 2018, Brent filed a counter-petition,
seeking to modify his child support obligation. Brent alleged the order he sought to modify was
based on a mediated settlement agreement and the support payments previously ordered were not
in substantial compliance with the guidelines in chapter 154 of the Texas Family Code. He further
alleged the circumstances of a person affected by the order had materially and substantially
changed since the original order was signed and that the requested decrease would be in the best
interest of the child.
The issue of whether to modify Brent’s child support obligation was tried to the bench in
October 2018. No witnesses gave sworn testimony. The facts upon which the parties rely in this
appeal were presented to the court by the attorneys without objection. 2 In addition, Brent’s 2016
and 2017 tax returns, several of his 2018 pay stubs, his unsworn October 2018 financial
information statement, and a Berkshire Hathaway Single Premium Annuity Contract were
admitted into evidence.
The undisputed statements made to the court established that at the time of the 2015 agreed
divorce decree, Brent was unemployed. Although Brent did not have income from employment,
he received a monthly annuity payment in the amount of $6,970 from a structured settlement of a
personal injury suit. 3 The attorneys agreed that at the time of the hearing on the motion to modify,
2
See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (per curiam) (“Normally, an attorney’s statements must be
under oath to be considered evidence . . . [but] the opponent of the testimony can waive the oath requirement by failing
to object when the opponent knows or should know that an objection is necessary.”).
3
The injury and settlement all occurred before Brent and Kelly were married.
-2-
04-19-00202-CV
Brent was employed and was receiving $6,970 a month for the annuity and $3,800 a month gross
from his employment. 4 In addition, during the time the modification proceedings had been pending
in the trial court, Brent had remarried, had a child, and divorced. At the time of the hearing, Brent
was paying $1,500 a month in child support for the younger child. Brent’s unsworn financial
information statement lists his monthly expenses at the time of the hearing, but no evidence was
presented of Brent’s expenses at the time of the original decree.
The trial court took the matter under advisement and later signed an order denying Brent’s
counter-petition to modify and awarding Kelly $5,000 in attorney’s fees. The trial court made
findings of fact and conclusions of law in which it found Brent’s additional child support obligation
did not affect his net resources and that there had not been a material and substantial change in the
circumstances of either the parties or the child that would support modifying Brent’s child support
obligation. The trial court subsequently signed a final order that incorporated the mediated
modifications to the terms of possession and access. With respect to child support, the order states
the child support provisions are “as previously delineated in the final Decree of Divorce signed
and rendered on July 26, 2015.” Brent timely appealed, challenging several of the trial court’s
findings of fact, the inclusion of the annuity as a resource for the purpose of setting child support,
and the trial court’s denial of his request to modify the amount of monthly child support and
medical support he pays for H.E.W.M.
4
Brent’s unsworn financial information statement states his gross wages averaged $3,398 per month; his 2017 tax
return showed income from wages of $33,989; his paystub for the pay period ending September 1, 2018 showed
Brent’s 2018 year-to-date gross earnings were $29,849, or approximately $3,731 per month. However, the parties’
attorneys agreed at the hearing that Brent’s gross wages were $3,800 per month:
BRENT’S ATTORNEY: The $6,970, I believe, is the annuity. He makes about $3,800 gross from
the work at the RV center.
....
THE COURT: Do you disagree with the numbers [Brent’s attorney] states; that the $6,970 a month
for the annuity and the $3,800 a month gross for the new salary?
KELLY’S ATTORNEY: I do not disagree. . . . .
-3-
04-19-00202-CV
STANDARD OF REVIEW
“A trial court has broad discretion in determining whether to modify the amount of child
support.” In re E.R.T., No. 04-15-00071-CV, 2015 WL 9486824, at *2 (Tex. App.—San Antonio
Dec. 30, 2015, no pet.) (mem. op.). We will not disturb the trial court’s decision unless the
complaining party shows a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109
(Tex. 1990) (per curiam). Under this standard, we defer to the trial court’s factual determinations
if they are supported by some probative and substantive evidence. Van Ness v. ETMC First
Physicians, 461 S.W.3d 140, 142 (Tex. 2015) (per curiam); E.R.T., 2015 WL 9486824, at *2.
However, “[a] trial court has no discretion in determining what the law is or properly applying the
law. If the trial court fails to properly interpret the law or applies the law incorrectly, it abuses its
discretion.” In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 642-43 (Tex. 2009) (orig.
proceeding) (citation omitted).
ANNUITY AS RESOURCE FOR DETERMINING CHILD SUPPORT
In his second and third issues, Brent argues the trial court erred by including the annuity
he receives from the structured settlement as part of Brent’s net resources for the purpose of setting
child support and in finding that he had agreed to do so at the time of the original divorce decree.
Section 154.062 of the Family Code lists the resources to be included in calculating an
obligor’s child support liability. See TEX. FAM. CODE § 154.062(b). We decided the issue of
whether Brent’s annuity payment is considered a resource under section 154.062 in the appeal
from the decree in his second divorce. See Mansfield v. Mansfield, No. 04-18-00551-CV, 2019
WL 6138984 (Tex. App.—San Antonio Nov. 20, 2019, pet. denied) (op. on reh’g). For the reasons
discussed in that opinion, we hold the settlement annuity is a resource to be considered in
determining child support. See id. at *2-3.
-4-
04-19-00202-CV
Brent’s second issue asserts the trial court abused its discretion by finding that Brent, “at
the time of the final decree of divorce agreed to factor the annuity payment as income for the
calculation of guideline child support.” There is no evidence the parties expressly agreed at the
time of the divorce that the annuity would or would not be considered a “resource” within the
meaning of section 154.062. However, the record establishes Brent had no income from
employment at the time of the divorce, he received $6,970 a month from his annuity, and he agreed
to pay $1,750 a month in child support. From these facts, the trial court reasonably could infer that
Brent agreed to consider the annuity payment in calculating child support. Moreover, because the
annuity is a resource within the meaning of section 154.062(b) as a matter of law, any error in
making the finding is not harmful. See id. at *3. We overrule Brent’s second and third issues.
DENIAL OF REQUEST TO MODIFY CHILD SUPPORT
Brent’s counter-petition alleged the child support payments in the agreed decree were not
in substantial compliance with the guidelines in chapter 154 and that there had been a material and
substantial change in circumstances since the original decree. He sought a downward modification
in the amount of his child support payments. In Brent’s first and fourth issues, he contends the trial
court abused its discretion in finding there had not been a material and substantial change in
circumstances, denying the counter-petition to modify, and ordering he continue to pay $1,750 per
month in child support.
When, as here, parents agree to a support order that is different from the amount required
by the child support guidelines, the trial court has discretion to modify the order “only 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 § 156.401(a-1) 5; In re Moore,
Brent asserts in his brief that he is also entitled to a reduction in child support under section 156.401(a)(2) because
5
more than three years have elapsed since the decree and the support order in the decree differed by either 20% or $100
-5-
04-19-00202-CV
511 S.W.3d 278, 283 (Tex. App.—Dallas 2016, no pet.). The party requesting the modification
has the burden to show such a change in circumstances. Moore, 511 S.W.3d at 283; Melton v.
Toomey, 350 S.W.3d 235, 238 (Tex. App.—San Antonio 2011, no pet.). To meet its burden, the
party seeking modification must ensure evidence of the parent’s financial circumstances or the
child’s financial circumstances and needs, both at the time of the prior order and at the time of the
modification hearing, is presented to the trial court. Melton, 350 S.W.3d at 238; In re D.S., 76
S.W.3d 512, 520 (Tex. App.—Houston [14th Dist.] 2002, no pet.); Farish v. Farish, 921 S.W.2d
538, 541 (Tex. App.—Beaumont 1996, no writ). In determining whether there has been a
substantial and material change in circumstances that warrants modification of a child support
obligation, the trial court may consider the Family Code’s child support guidelines for multiple
families if the modification is in the best interest of the child. TEX. FAM. CODE § 156.402.
However, the court’s use of the guidelines in a modification proceeding is discretionary, not
mandatory. Melton, 350 S.W.3d at 238; D.S., 76 S.W.3d at 522, 524; Farish, 921 S.W.2d at 544.
Evidence that the original child support order was not in compliance with guidelines or that the
obligor has had another child since the original order, is therefore not in and of itself sufficient to
establish a material and substantial change in circumstances. See Sparks v. Rutkowski, No. 03-17-
00452-CV, 2018 WL 3799940, at *4 (Tex. App.—Austin Aug. 3, 2018, no pet.) (mem. op)
(additional child); Melton, 350 S.W.3d at 238 (prior order exceeds guidelines); Farish, 921 S.W.2d
at 544-46 (additional child and prior order exceeded guidelines).
Brent argues his circumstances have materially and substantially changed since the original
agreed decree was signed because he has new child and medical support expenses that reduce his
from the guideline amount. However, section 156.401(a)(2) does not apply when the child support obligation that
exceeds the guidelines is part of an agreed order. See TEX. FAM. CODE § 156.401(a), (a-1).
-6-
04-19-00202-CV
net income. He also contends the amount of his child support obligation substantially exceeds the
Family Code guideline for multiple families. 6
At the time of the original decree, Brent was unemployed and received $6,970 a month
from his annuity. The record contains no evidence of what additional resources he may have had
at the time. There is also no evidence in the record of Brent’s expenses at the time of the original
decree, other than the amounts of child support and medical support he agreed to pay for H.E.W.M.
The parties’ attorneys agreed that Brent obtained employment after the original decree was
signed and that at the time of the modification hearing, Brent received “$3,800 a month gross from
[his] work” and $6,970 from the annuity. There was evidence he had incurred an additional child
support expense of $1,500 per month and an additional medical support expense 7 per month due
to the birth of a second child. Brent’s financial information statement contains a list of his monthly
living expenses at the time of the hearing.
Evidence before the trial court shows Brent’s gross income increased $3,800 a month
between the decree and the modification hearing. Although there was evidence Brent had new
child and medical support expenses, without any evidence of what Brent’s expenses were at the
time of the original decree, the trial court had no evidence from which it could determine whether
his overall expenses had risen, stayed the same, or gone down. Even if the trial court had assumed
Brent’s other expenses had not changed since the decree, the increase in his income was far greater
than the only new expense shown by the evidence. Under these circumstances, the trial court did
6
Brent contends the guideline amount of child support for H.E.W.M. is $429 a month. He arrives at this amount by
asserting his resources for calculating child support should include only his earned income from wages and exclude
his annuity, then reducing his gross wages by taxes and other statutorily mandated items, and multiplying the resulting
figure by 17.5%, to reflect his obligation to support a child in a second household. See TEX. FAM. CODE §§ 154.062,
154.129. However, Brent’s annuity is a resource for calculating child support. Neither the record nor the brief contains
a calculation of the guideline support based on Brent’s total resources.
7
The agreed decree requires Brent to pay $153.51 per month in medical support for H.E.W.M. Brent’s financial
information statement states he pays $380 per month for “health insurance for children.” Brent asserts in his brief that
he pays $396 in monthly medical support for his second child, but there is nothing in the record to support this amount.
-7-
04-19-00202-CV
not abuse its discretion in finding there was no showing of a material and substantial change in
circumstances, denying Brent’s counter-petition to modify child support, and ordering him to
continue to pay $1,750 in monthly child support payments for H.E.W.M., as provided in the agreed
divorce decree. See Melton, 350 S.W.3d at 238 (stating that “[w]ithout evidence setting out the
financial circumstances of the parties at the time the original decree of divorce was entered, or the
financial circumstances of the parties at the time of the hearing on the motion to modify, the family
court cannot make a determination that there has been a material and substantial change”); Farish,
921 S.W.2d at 544-46 (holding neither fact that prior child support order exceeded guidelines nor
obligation to support another child were sufficient to establish material change in circumstances
where evidence showed obligor had a substantial increase in income). We therefore overrule
Brent’s first and fourth issues.
MEDICAL SUPPORT PAYMENTS
In his fifth issue, Brent contends the trial court erred by requiring him to continue to pay
monthly medical support payments for H.E.W.M. in the amount of $153.51. Brent argues the
amount of medical support is excessive and violates section 154.181(e) of the Family Code, which
provides “the total cost of health insurance coverage for all children for which the obligor is
responsible under a medical support order” should “not exceed nine percent of the obligor’s annual
resources as described by Section 154.062(b).” See TEX. FAM. CODE § 154.181(b).
We reject Brent’s argument for several reasons. First, Brent did not specifically request a
modification of the medical support obligation in his counter-petition, at the hearing, or in his post-
hearing motions, and he did not present an objection to the trial court that the cumulative amount
of his medical support obligations exceeds nine percent of his resources. Further, he did not present
any evidence of the $396 he contends he has been ordered to pay in monthly medical support for
his second child. Finally, the total of $6,600 ($550 x 12) that Brent asserts he is being ordered to
-8-
04-19-00202-CV
pay yearly in medical support for his two children is far less than nine percent of Brent’s annual
resources, which exceed $120,000 per year. We therefore overrule Brent’s fifth issue.
KELLY’S MOTION FOR APPELLATE ATTORNEY’S FEES
The trial court’s final order includes an award of $5,000 attorney’s fees to Kelly for the
defense of Brent’s counter-petition for modification. The final order did not include an award of
contingent appellate attorney’s fees. Kelly did not file a cross-appeal challenging the failure to
award contingent appellate attorney’s fees.
After Brent filed his notice of appeal, Kelly requested the trial court enter temporary orders
pursuant to section 109.001(a)(5), requesting among other things, an award of $7,500 for fees
incurred in the court of appeals and additional amounts if a petition for review was filed. The trial
court signed a temporary order requiring Brent to pay Kelly $5,000.00 for attorney’s fees “by 5:00
p.m. the day he files his Appellant’ brief in any appeal.” Brent filed a petition for a writ of
mandamus, challenging the temporary order. This court held no evidence was presented to the trial
court establishing the temporary order was “necessary to preserve and protect the safety and
welfare of the child during the pendency of” this appeal. In re Mansfield, No. 04-19-00249-CV,
2019 WL 2439104, at *3 (Tex. App.—San Antonio, June 12, 2019) (orig. proceeding) (mem. op.)
(quoting TEX. FAM. CODE § 109.001(a)(5)). This court concluded “the trial court abused its
discretion by ordering relator to pay Kelly $5,000 in attorney’s fees pending the appeal” and
conditionally granted the petition. Id. The trial court subsequently vacated the temporary order.
After Brent’s reply brief was filed in this appeal, Kelly filed a motion for appellate
attorney’s fees, asking the court to award contingent appellate attorney’s fees or to remand for the
trial court to so award. Kelly’s motion does not contain any authority that supports her request.
Because Kelly did not appeal the trial court’s failure to award contingent appellate fees in its final
-9-
04-19-00202-CV
order and this court has finally ruled in a separate proceeding that she did not establish a right to a
temporary order for appellate fees, we deny the motion.
CONCLUSION
We affirm the trial court’s March 27, 2019 final order denying Brent’s counter-petition to
modify the parent-child relationship. We deny Kelly’s motion for appellate attorney’s fees.
Luz Elena D. Chapa, Justice
- 10 -