Melton v. Toomey, 2011 Tex. App. LEXIS 4162

This is a modification proceeding concerning the conservatorship of the child L.M.; a jury found the conservatorship should not be modified.
Melton requested a partial reporter's record under Rule 34.6(c) and appeals the trial court's order on child support and health insurance.
Toomey challenges Melton's compliance with Rule 34.6(c), arguing Melton did not satisfy the procedural requirements to trigger the presumption that the partial record constitutes the entire record.
The court addresses Rule 34.6(c) compliance first, adopting a flexible approach to determine whether the presumption applies and what issues Melton may raise.
The divorce decree was entered February 9, 2009; a motion to modify was heard August 26, 2010 and the judgment signed September 7, 2010.
The court considers whether to modify child support and health insurance, noting that guidelines are discretionary in modification proceedings and that movant bears the burden of proving material and substantial changes in financial circumstances.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Rule 34.6(c) compliance invoked presumption	Melton argues the issues stated in his notice suffice to trigger presumption.	Toomey contends Melton failed to comply, so no presumption applies and no additional issues may be reviewed.	Statement of issues sufficient to invoke presumption and limit review to stated issues.
Modification of child support and health insurance	Guideline child support should apply; Toomey’s earnings should be considered as underemployment; court should order support and health insurance.	Guidelines are discretionary in modification; movant failed to prove material and substantial change; no need to order payment or insurance.	Trial court did not abuse its discretion; no modification of child support or health insurance.

Bennett v. Cochran, 96 S.W.3d 227 (Tex. 2002) (presumption applies despite late issue notice)
Furr's Supermarkets, Inc. v. Bethune, 53 S.W.3d 375 (Tex. 2001) (notice of issues can satisfy Rule 34.6(c) requirements)
In re J.S.P., 278 S.W.3d 414 (Tex. App.-San Antonio 2008) (partial reporter's record limitations)
Cameron v. Cameron, 158 S.W.3d 680 (Tex.App.-Dallas 2005) (burden on movant to show material/substantial change)
In re C.C.J., 244 S.W.3d 911 (Tex.App.-Dallas 2008) (need evidence of historical/current financial circumstances)
Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990) (abuse of discretion standard in child support rulings)
Brejon v. Johnson, 314 S.W.3d 26 (Tex.App.-Houston [1st Dist.] 2009) (discretionary consideration of guidelines in modification)
Friermood v. Friermood, 25 S.W.3d 758 (Tex.App.-Houston [14th Dist.] 2000) (guidelines discretionary in modification contexts)
In re H.J.W., 302 S.W.3d 511 (Tex.App.-Dallas 2009) (trial court must consider obligor's ability to pay medical support)