in the Interest of P.M.G., a Child
2013 Tex. App. LEXIS 8700
| Tex. App. | 2013Background
- Divorce 2005: Garner and Dorenda share joint managing conservatorship; Dorenda has exclusive right to designate child’s primary residence; 30-days’ certified mail notice required before move; Garner to pay Dorenda actual medical insurance costs for child ($120/month).
- 2011 move: Dorenda moved with P.M.G. to Denton for nursing school; Garner sought modification of conservatorship and temporary residency limits; Dorenda answered and counter-petitioned for increased child support.
- Modification order: trial court limited P.M.G.’s primary residence to Bowie County districts (Texarkana, Pleasant Grove, Redlick, Liberty-Eylau) for geographic purposes; increased child support; awarded Garner a credit for medical insurance payments (July 2009–Oct 2012) including interest.
- Dorenda appeals: (1) authority to impose permanent residency restriction absent a material/substantial change; (2) sufficiency of evidence of change; (3) credit against arrearages for medical insurance payments; (4) abuse of discretion for permanent restriction when only a temporary restriction was sought.
- Court’s disposition: affirmed in part, remanded to determine medical-arrearage amount pre-July 22, 2011; held pleadings supported the geolocation restriction; found implied material change in circumstances and best-interest determination valid.
- Distance and relationship factors: 191-mile distance; Garner’s involvement decreased post-move but continued visitation; P.M.G. remained bonded to Garner; court found change in circumstances substantial enough to modify custody in best interest of the child.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to impose permanent residency restriction | Dorenda; no material change found | Garner; sought temporary relief only | Partially: implied material change supported; permanent restriction affirmed on pleadings and evidence |
| Material/substantial change in circumstances | Dorenda asserts no substantial change | Garner argues change due to move and age-related factors | Implied material change supported; modification in best interest affirmed |
| Medical-support arrearage credit legality | Dorenda argues improper retroactive credit under §157.263(b-1) and §156.401(b) | Garner argues credit correct; pre-2011 period reconsidered | Remanded to determine pre-July 22, 2011 medical-arrearage amount; retroactive credit not fully upheld |
| Pleadings to support permanent restriction | Dorenda cites Rule 301/Rule 90 defects; lack of permanent relief requested | Garner contends pleadings invoked custody/decretal powers | Pleadings sufficient to support order; modification within court’s jurisdiction |
Key Cases Cited
- Bates v. Tesar, 81 S.W.3d 411 (Tex. App.—El Paso 2002) (relocation can support changed circumstances depending on distance and other factors)
- In re A.C.S., 157 S.W.3d 9 (Tex. App.—Waco 2004) (relocation factors for best interests and modification authority)
- Leithold v. Plass, 413 S.W.2d 698 (Tex. 1967) (pleading in custody matters often sufficient to invoke court jurisdiction)
- In re Macalick, 13 S.W.3d 43 (Tex. App.—Texarkana 1999) (flexible pleading standards in custody disputes; fair notice in context of best interests)
- Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990) (judgment should be supported by evidence; defer to trial court where no findings of fact)