Monica Moreno v. Ernesto Perez
363 S.W.3d 725
| Tex. App. | 2011Background
- Moreno and Ernesto Perez, Jr. were divorced in 2002; they were named joint managing conservators with Moreno having the right to establish the children’s residence.
- Perez, Jr. was ordered to pay child support and Moreno to have visitation under a standard possession order; Pilar Perez and Ernesto Perez, Sr. intervened, with the final decree stating that references to Perez, Jr.’s visitation include the intervenors’ visitation.
- Temporary orders in 2007 granted Perez, Jr. exclusive right to establish residence and awarded Moreno visitation, while suspending child support and requiring Moreno to pay health insurance for the children.
- In July 2008, Pilar and Perez, Sr. petitioned to modify, seeking custody, support, and restricted access; temporary orders thereafter appointed Pilar and Perez, Sr. as temporary sole managing conservators with Moreno as temporary possessory conservator under SAFE supervised visitation.
- Trial on the merits occurred July 13, 2009; Moreno did not testify at trial due to pending criminal charges; Pilar and Perez, Sr. testified about stability, schooling, and Moreno’s past conduct.
- The trial court granted modification: Pilar and Perez, Sr. as sole managing conservators; Moreno as possessory conservator with supervised visitation, and maintained a support order and health insurance obligations; the court reserved or modified certain restrictions pending Moreno’s criminal case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether child support deviates from guidelines | Moreno: support amount exceeds guidelines without trial evidence of income. | Perez, Pilar: order supported by prior findings; trial evidence unchanged since temporary order. | We reverse and remand to apply proper net resources; no evidence supports $1,730/month. |
| Geographic and presence restrictions on visitation | Restriction to Harris County and prohibition of unrelated adults is unsupported or overly restrictive. | Best interests and evidence support restrictions to protect children. | Restricting to Harris County upheld in part; reform to specify unrelated adult male rather than any unrelated adult, to align with evidence. |
| Corporal punishment prohibition tied to pending charge | Prohibition premised on pending charge is excessive if acquitted later. | No corporal punishment allowed due to safety and public policy; pending charge supported restriction. | Restriction sustained; modification upon acquittal/dismissal is for movant; poison remains unless changed. |
| Emergency hearing request | Trial court should have held emergency hearing under section 156.102 for potential risk to children. | Motion not properly framed as 156.102 request; no abuse of discretion. | No abuse found; court did not err in denial for lack of proper notice to invoke 156.102. |
| Contest to indigence affidavit | Affidavit of indigence supported by government assistance and IOLTA eligibility; contest improper. | Contest based on skepticism of income; IOLTA status not properly filed, etc. | Contest of indigence reversed; Moreno entitled to indigence finding; appellate costs to be waived. |
Key Cases Cited
- Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990) (abuse of discretion standard for child support decisions)
- McGuire v. McGuire, 4 S.W.3d 382 (Tex. App.—Houston [1st Dist.] 1999) (two-prong abuse-of-discretion framework for support orders)
- Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (Holley factors guiding best interests in custody cases)
- Seidel v. Seidel, 10 S.W.3d 365 (Tex. App.—Dallas 1999) (modification requires record evidence to support terms)
- Peck v. Peck, 172 S.W.3d 26 (Tex. App.—Dallas 2005) (unrelated adult restrictions may be permissible in best interests)
- In re Walters, 39 S.W.3d 280 (Tex. App.—Texarkana 2001) (visitation orders must be specific and enforceable)