Kirk Brand COBURN, Appellant v. Janet MORELAND, Appellee
No. 03-12-00709-CV
Court of Appeals of Texas, Austin
May 23, 2014
433 S.W.3d 809
Declaratory Judgment Act
Appellants finally assert the trial court erred by granting the City‘s plea to the jurisdiction because they are seeking a declaration pursuant to the DJA that the Ordinance is invalid, and the DJA contains an express waiver of governmental immunity. See
For the same reasons that a court exercising civil jurisdiction does not have equity jurisdiction to enjoin the enforcement of penal statutes, it does not have equity jurisdiction to render a declaratory judgment regarding the constitutionality of a criminal statute or ordinance. Morales, 869 S.W.2d at 947. A court exercising civil jurisdiction “simply has no jurisdiction to render naked declarations of ‘rights, status or other legal relationships arising under a penal statute.‘” Id. (quoting Malone v. City of Houston, 278 S.W.2d 204, 206 (Tex. Civ. App.—Galveston 1955, writ ref‘d n.r.e.)); see also Ryan v. Rosenthal, 314 S.W.3d 136, 143 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). We conclude the trial court did not err by determining it did not have jurisdiction to consider appellants’ request for declaratory relief. Based on our resolution of appellants’ first two arguments, we need not address appellants’ argument that CSAT has organizational standing to assert claims on behalf of its members. See
Conclusion
We conclude the trial court did not err by granting the City‘s plea to the jurisdiction. We resolve appellants’ sole issue against them and affirm the trial court‘s order dismissing appellants’ claims.
Michael Burnett, Andrew York, Armbrust & Brown, PLLC, Austin, TX, John Barrett, Barrett & Coble, Austin, TX, for appellee.
Before Chief Justice JONES, Justices PEMBERTON and FIELD.
OPINION
J. WOODFIN JONES, Chief Justice.
This is an appeal from a modification order in a “high-conflict” suit affecting the parent-child relationship (SAPCR).1 The appellant, Kirk Brand Coburn, challenges the trial court‘s modification order, which (1) increased his monthly child-support obligation, (2) granted the appellee, Janet Moreland, the exclusive right to make certain decisions concerning their children‘s education and health care, (3) restricted his possession of and access to the children while he engaged in limited court-ordered counseling, and (4) awarded Moreland a substantial portion of her attorney‘s fees and costs. We will vacate the trial court‘s order in part, dismiss that part of the cause as moot, and affirm the remainder of the trial court‘s modification order.
FACTUAL AND PROCEDURAL BACKGROUND
On February 11, 2011, Coburn and Moreland ended their twelve-year marriage with an agreed divorce decree. In the decree, Coburn and Moreland were appointed joint managing conservators of their young daughters, E.C. and P.C. Moreland was awarded the exclusive right to designate the children‘s primary residence, and Coburn was awarded standard possession. Although both parents were reportedly living in Austin when the decree was executed, the standard possession terms included modified possessory rights if the parents began living more than 100 miles apart (long-distance standard possession).
A mere week after the divorce was finalized, there began a series of events and circumstances that triggered a cascade of escalating discord between the parties that culminated in the underlying modification proceeding and the trial-court order at issue in this appeal. The precipitating event occurred when Coburn picked his daughters up for his first post-divorce weekend visitation. Coburn arrived at Moreland‘s home driving an expensive new vehicle of unknown origin, which caught Moreland‘s attention. Coburn then took the children to Houston for the weekend after representing to Moreland and his daughters that they would be staying in Austin for the visitation period. As Moreland and the girls would soon discover, Coburn had moved to Houston but had failed to disclose that fact until he was en route to his new home with the girls.
When the girls discovered they were leaving Austin, they telephoned their mother. According to Moreland, she and the girls were frightened by the undisclosed diversion and unsettled by the discovery that Coburn had moved to Houston without their knowledge. Adding to their distress, the children learned during the trip to Houston that their father had begun dating his childhood sweetheart, Holly.3 When the children returned to Austin, E.C. informed Moreland of that fact and inquired whether Coburn had been dating his new girlfriend before the divorce. Moreland responded that she was not able to answer that question, and she admittedly was upset and angry about the situation.
Moreland was also keenly interested in what appeared to be a sudden improvement in Coburn‘s financial resources. She was particularly upset by the fact that Coburn was driving a very expensive new car when a mere week before she had taken responsibility for the majority of the marital debt and agreed to accept a $600 monthly child-support payment. Moreland therefore set out to determine whether Coburn had additional financial resources to contribute to the support of his children.
Although Moreland knew that Holly was extremely wealthy and could have been supporting Coburn financially, he had previously informed her that he was interviewing for a job in Houston. Moreland and her attorney, therefore, repeatedly requested that Coburn disclose the source of his newfound prosperity. Coburn refused the request, but in an e-mail exchange with Moreland‘s attorney, he denied being employed and closed by saying “[i]t‘s nice being kept,” implying that Holly was his benefactor.
In the two months that followed, Coburn and Holly became engaged, and Coburn submitted to a deposition. At his deposition, Coburn testified that he did not have a job, but he was working on starting a venture-capital business. As a result, he had not done anything to apply for a job that would pay a salary and presently had no income. He further disclosed that Holly was supporting him by paying (1) the debt he had assumed in the agreed divorce decree, (2) all of his child-support payments to Moreland, (3) his attorney‘s fees for the modification proceeding, and (4) all of his monthly credit-card expenses. He explained that Holly had also paid the rent for his furnished two-bedroom apartment and purchased the expensive new car he had been driving. Coburn acknowledged that Holly‘s financial gifts predated execution of the agreed divorce decree by approximately two months. He further testified that he did not believe $600 per month in child support was “fair” and stated that he believed that an adequate and fair amount of child support for his children was $300 per month.
Coburn was also questioned about his relationship with his daughters. He acknowledged having a poor relationship with them at the time of the deposition, but he blamed Moreland for alienating them from him. Coburn did not accept responsibility for any of the friction and asserted that the only thing he had done to contribute to the situation was that he had married Moreland in the first place.
Coburn‘s relationship with his daughters further soured after he and Holly were married in July 2011. At that time, Coburn and Holly were anxious to blend their two families, which included Holly‘s three children from a previous marriage. To that end, Coburn attempted to exercise his long-distance standard-possession rights in Houston, but the girls, who were increasingly exhibiting signs of emotional distress and anxiety, resisted visitation by crying, getting physically ill, refusing to get out of the car, and running away and hiding. The issues the children were experiencing included distress over being so quickly integrated into a new family situation and discomfort at missing events and activities in Austin that were important to them during their father‘s periods of visitation. The relationship between Coburn and Moreland had also become highly conflicted, and the parties dispute whether and to what extent the conflict resulted from or caused the situation between Coburn and their daughters.
Due to frequent disagreements about the nature, extent, and location of Coburn‘s visitation with the girls, a number of efforts ensued to ameliorate the discord and address the transition issues the children were experiencing. Temporary or-
The parties also engaged the assistance of therapeutic professionals to address the issues of familial conflict. Dr. Allison Wilcox became the girls’ individual therapist. Family counseling was also secured, first from Dr. Susan McMillan and then from Dr. Carlos Loredo.4 In addition to engaging the services of these therapists, Moreland started attending a divorce support group and participating in individual therapy. Coburn did not retain an individual therapist but did begin attending family therapy sessions.
In therapy, the family worked to address a number of consistent behavior patterns that were identified as having aggravated tensions, including that (1) Coburn minimized or failed to appreciate how his daughters were impacted by the significant and sudden changes in their lives, creating the impression that he was disinterested in their feelings; (2) Coburn disregarded or underestimated the girls’ need to spend “alone time” with him during visitation;5 (3) Coburn resisted the therapists’ recommendations to gradually transition the children into their new, blended family;6 (4) the children perceived Coburn as being insensitive to their desire to participate in activities and events they had been participating in for several years before their parents divorced, including events that were important to them that they would miss if visitation occurred every other weekend in Houston;7 (5) Moreland had
Although Coburn denied contributing to his children‘s distress, he nevertheless agreed to a court order that required the parties “to cooperate with Dr. Loredo and to follow Dr. Loredo‘s recommendations concerning the children, as to visitation, access, content, and the behavior of the parent toward the child.” As a result of this agreement, Coburn had limited visitation with the girls for about six months before trial and mostly interacted with the girls in thrice-weekly Skype sessions and periodic therapy sessions. During this time period, Coburn also voluntarily agreed to increase his child-support payment to the statutory guideline maximum of $1,875 per month while the modification suit was pending. See
Moreland and Coburn also agreed to submit to psychological evaluations, and the trial court appointed Dr. Alissa Sherry to perform those evaluations.12 After completing the evaluations, Dr. Sherry diagnosed Coburn with “narcissistic personality disorder” with “sociopathic traits.” Dr. Sherry found that Coburn “places his own needs over the needs of the children” and is “willing to forgo the girls’ events in favor of his own needs and has [also] exercised serious lapses in judgment in his communication[s] with other mental health professionals trying to assist the family.” Dr. Sherry concluded that Coburn “is not likely to take responsibility for his actions and instead tends to blame and project his shortcomings on to [sic] others.” As a result, she determined that “the likelihood of [Coburn‘s] ability to engage in effective co-parenting is seriously limited as is his ability to place the needs of others ahead of himself.” She further found that Coburn had engaged in “gaslighting behavior,” which she defined as “manipulative behavior used to confuse people into questioning their reactions to events, so much so that the victims of gaslighting begin to question their own sanity.” She observed that gaslighting is often referred to as “crazy-making” as it makes otherwise or-
In comparison, Dr. Sherry determined that Moreland did not meet the criteria for any personality disorder. She also concluded that Moreland‘s actions did not meet the threshold for parental alienating behaviors. She further opined that “when [Moreland‘s] behavior has become unrestrained, it is the result of behaviors that are insensitive, narcissistic, or baiting on the part of Mr. Coburn.” Also, in contrast to Coburn, Dr. Sherry found that Moreland was “interpersonally inclined towards cooperative, mutually satisfying relationships.” Dr. Sherry concluded that Moreland‘s “healthy reality testing, likelihood of engaging in cooperative relationships, and affective stability bode well for both healthy parenting and the ability to co-parent with others. However, because of Mr. Coburn‘s existing psychopathology, the likelihood of this parent dyad to co-parent with each other is tentative at best.”
In April 2012, about two months before trial, Moreland expanded her modification petition to include a request to be granted exclusive rights and duties with respect to several aspects of the children‘s lives. Moreland also sought significant modifications to Coburn‘s possessory rights and requested that the trial court order Coburn to (1) exercise all of his periods of possession in Travis County; (2) take the children to all of their extracurricular activities and events during his periods of possession; (3) engage in individual counseling in order to have possession of and access to the children; (4) submit to super-vised visitation, as recommended by the children‘s therapists; (5) pay for the children‘s therapy; and (6) Skype with the children only if recommended by the children‘s therapists.
In response, Coburn filed a counter-petition requesting appointment as the children‘s sole managing conservator or, in the alternative, joint managing conservator with the exclusive right to make certain decisions regarding the children, including the right to designate their primary residence. According to Coburn and Holly, Moreland‘s interference was the driving factor in the problems the girls were experiencing with their father. As a result, Coburn sought sole custody as a means of forming a positive relationship with his children and successfully blending his families. At that time, however, Coburn had not had weekend possession of the girls in several months because he had not complied with Dr. Loredo‘s therapeutic recommendations and because his estrangement from his daughters was intensifying.13 Dr. Sherry observed that Coburn‘s request for immediate sole custody, given the status of his relationship with the children—and contrary to the therapists’ recommendations—was consistent with a diagnosis of narcissistic personality disorder, but she acknowledged that it could also have reflected the advice of legal counsel.
At trial, Dr. Wilcox and Dr. Loredo testified that even with professional intervention and regular Skype communications, the girls’ emotional state and estrangement from their father had gotten worse. According to the therapists, significant reasons for the lack of improvement in-
Dr. Wilcox also agreed with Dr. Sherry‘s conclusion that Moreland had not alienated the girls from their father and, instead, had helped facilitate the girls’ spending time with him. Dr. Loredo further testified that Moreland had been helpful in getting the girls to participate in therapy sessions with their father when they were resisting. Both therapists acknowledged, however, that Moreland had behaved inappropriately in front of the children in ways that were neither proper nor helpful, and Dr. Wilcox testified that Moreland‘s “screaming at [Coburn] in front of the school [during one visitation exchange] is probably emotionally abusive.” They noted, however, that Moreland had accepted responsibility for her behavior, undertaken measures to rectify it, and had not—to their knowledge—engaged in similar conduct in the six-month period preceding trial.
Both Dr. Wilcox and Dr. Loredo opined that it would be inadvisable to force the girls to go on visits with their father given the state of their relationship at that time. They explained that forced visitation would probably make the situation worse and would be detrimental to the girls. Both therapists also recommended to the court that the children not be required to visit with their father unless a third party, preferably a therapist, was present as they employed a step-wise transition into long-distance standard possession with Coburn and the blended family. Dr. Loredo also testified that Coburn needed individual counseling with a therapist who would communicate with the other therapists and not just rely on Coburn‘s version of events. According to Dr. Loredo, a family dynamic that includes a diagnosis of narcissistic personality disorder is among the most difficult to work with and has the potential to be very destructive in a family system. He stated, however, that he believed therapy would be beneficial because Coburn and the children truly love each other and want a healthy relationship.
Dr. Sherry concurred that therapeutic intervention was necessary to address Coburn‘s manipulative behavior, which she testified is destructive to a relationship between parent and child. She asserted that it was important for Coburn to understand that he needs to make changes. As a result, she observed that he would need to work with a therapist who would challenge his perspective and not simply
With regard to shared parenting rights, Dr. Sherry testified that it was possible for Coburn to effectively co-parent if circumstances were structured in a way that benefitted him, but she stated that “he‘s going to have some problems anytime he gets a response from others, whether it‘s the girls or Ms. Moreland, that he doesn‘t want or that doesn‘t fit his view of himself. But the more it can be structured in a way ... that he has something to gain by it, probably the better.” She further recommended that Moreland and Coburn have no contact with each other and that one parent be granted the exclusive right to make decisions regarding the children to minimize their interactions. She observed that Moreland is the “predominant parent” and that there are a number of psychological issues with Coburn that interfere with his ability to respond appropriately to the children‘s emotional needs.
At the time of trial, Coburn testified that he had met with an individual therapist for one hour on one occasion, but little was known about the therapist‘s qualifications. Although Coburn was not committed to the idea that he needed to participate in therapy, he professed a willingness to do so. Ultimately, both Coburn and Holly testified that they did not agree with Dr. Sherry‘s diagnosis and did not agree with salient aspects of Dr. Wilcox‘s and Dr. Loredo‘s therapeutic recommendations. Coburn testified that it would be in the girls’ best interests if he were awarded primary possession, or in the alternative, standard possession that was not conditioned on therapeutic participation or the recommendation of any therapists as to the frequency and duration of appropriate visitation. Although Coburn conceded that his decisions to divorce Moreland, move to Houston, and introduce a new family into the girls’ lives had been difficult for them, he maintained that Moreland was primarily responsible for the problems between him and the girls and had exacerbated the situation. Meanwhile, Holly testified that Moreland was “95 percent” of the cause of the estrangement between Coburn and his daughters and was the sole impediment to improving the situation. She asserted that the solution to the problem was for Coburn to be more authoritative in enforcing visitation with the girls. Dr. Loredo testified that Holly‘s opinion reflected a “simplistic solution” to a complicated situation and showed a “lack of insight.”
With regard to the child-support issue, Coburn testified that he was presently self-employed as a venture capitalist. He admitted that he considered himself to have a job, but did not currently make any money due to the compensation structure of his business, which he said is standard in the industry. He agreed that “the deci-
After hearing the foregoing evidence, the trial court observed that all three expert witnesses recommended something other than granting Coburn primary possession or immediate standard possession. Accordingly, the court entered an order denying Coburn‘s modification request in its entirety and directing Coburn to participate in 25 weeks of individual therapy with his chosen therapist and 25 weeks of family therapy with Dr. Loredo before resuming standard possession. The trial court also required Coburn to execute a release allowing the therapists to share information with one another and with Dr. Wilcox. During the 25-week period, Coburn was entitled to supervised visitation with the girls for 1.5 hours each week and could Skype with the girls in a frequency and manner directed by Dr. Loredo. The trial court further denied Coburn extended possession of the girls for 42 consecutive days in the summer of 2012, as he had requested under his standard possession rights. The trial court‘s order further awarded Coburn standard possession upon completion of the required counseling. Moreland, however, was awarded the exclusive right to make decisions concerning the children‘s education and to consent to non-invasive medical and dental procedures and psychiatric and psychological treatment of the children.
With respect to child support, the court found that Coburn had admitted to intentional underemployment and his ability to make a six-figure income. The court determined that Coburn has the ability to make $200,000 per year and that his monthly net resources are $12,736.11. The court also found the children‘s proven support needs to be $3,557.50 per month.14 Based on these determinations, the court concluded that the statutory guideline child-support payment was $1,875 and that Coburn was responsible for paying 50% of the children‘s proven needs above the guideline amount, resulting in a child-support obligation of $2,716.25. See
In four issues on appeal, Coburn asserts that the trial court abused its discretion in (1) deviating from the standard possession order and conditioning possession and access on his participation in 25 weeks of court-ordered counseling, (2) granting Moreland exclusive decision-making rights concerning the children‘s education and health care, (3) determining that a change in circumstances warranted modification and increasing his child-support obligation based on a finding that he was voluntarily underemployed, and (4) requiring him to pay any of Moreland‘s attorney‘s fees and court costs related to the modification proceeding.15
DISCUSSION
The issues presented in this appeal are subject to review for clear abuse of discretion. See, e.g., Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied); In re J.R.D., 169 S.W.3d 740, 743 (Tex. App.—Austin 2005, pet. denied); Echols v. Olivarez, 85 S.W.3d 475, 476 (Tex. App.—Austin 2002, no pet.); Satterfield v. Huff, 768 S.W.2d 839, 841 (Tex. App.—Austin 1989, writ denied). “A trial court abuses its discretion only when it has acted in an unreasonable or arbitrary manner, or when it acts without reference to any guiding principle.” In re Marriage of Jeffries, 144 S.W.3d 636, 638 (Tex. App.—Texarkana 2004, no pet.) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). Under this standard, legal and factual sufficiency of the evidence are not independent grounds for asserting error but are relevant factors in determining whether the trial court abused its discretion. Zeifman, 212 S.W.3d at 587; Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.—Dallas 2004, no pet.); In re Davis, 30 S.W.3d 609, 614 (Tex. App.—Texarkana 2000, no pet.). In determining whether the trial court abused its discretion, we consider whether the trial court had sufficient evidence upon which to exercise its discretion and, if so, whether it erred in the exercise of that discretion. In re W.C.B., 337 S.W.3d 510, 513 (Tex. App.—Dallas 2011, no pet.). We consider only the evidence most favorable to the trial court‘s ruling and will uphold its judgment on any legal theory supported by the evidence. Worford, 801 S.W.2d at 109. A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the court‘s decision. Valdez v. Valdez, 930 S.W.2d 725, 731 (Tex. App.—Houston [1st Dist.] 1996, no writ).
We are further mindful that “the trial judge is best able to observe and assess the witnesses’ demeanor and credibility, and to sense the ‘forces, powers, and influences’ that may not be apparent from merely reading the record on appeal.” In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.). We, therefore, defer to the trial court‘s judgment in matters involving factual resolu-
Possession and Access
In his first appellate issue, Coburn challenges the portion of the modification order denying him standard possession and restricting his access to the children contingent on his participation in 25 weeks of individual and family psychological counseling. Coburn asserts that the restriction of his possession and access conflicts both with the rebuttable presumption that standard possession is the “minimum reasonable possession” to which he is entitled and with the trial court‘s finding that it is in the children‘s best interests that Coburn remain a joint managing conservator. See
After this appeal was perfected, we were informed that Coburn completed the
Under our constitution, courts have no jurisdiction to render advisory opinions. See
A case becomes moot if, since the time of filing, there has ceased to exist a justiciable controversy between the parties—that is, if the issues presented are no longer “live,” or if the parties lack a legally cognizable interest in the outcome. Put simply, a case is moot when the court‘s action on the merits cannot affect the parties’ rights or interests. If a case is or becomes moot, the court must vacate any order or judgment previously issued and dismiss the case for want of jurisdiction. Id. (internal citations omitted).
Although a decision on the possession and access issue on appeal would no longer affect the parties’ rights or interests as to that matter, Coburn contends the issue is not moot under the “capable-of-repetition-yet-evading-review” exception to the mootness doctrine. See General Land Office of State of Tex. v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex. 1990). The Texas Supreme Court has explained that this exception
applies only in rare circumstances. To invoke the exception, a complaining party must prove that: (1) the challenged action was too short in duration to be litigated fully before the action ceased or expired; and (2) a reasonable expectation exists that the same complaining party will be subjected to the same action again.
Williams, 52 S.W.3d at 184 (citations omitted).
With respect to the “evading-review” element, the proper inquiry is whether the challenged activity is by its very nature short in duration so that it could not, or probably would not, be able to be adjudicated before becoming moot. See id. The plaintiff must show that the time between the challenged action and its expiration is always so short as to evade review. See Spencer v. Kemna, 523 U.S. 1, 17 (1998) (petitioner could not show that time between parole revocation and expiration of sentence is always so short as to evade review). When determining the “capable-of-repetition” element, there must be a “reasonable
We conclude that Coburn has not satisfied the requirements for the “capable-of-recognition-yet-evading-review” exception.17 Even assuming the issue on appeal “is always so short as to evade review,” Coburn has not addressed the second prong of the exception at all, and it is not apparent that there is a “reasonable expectation” that he will be subjected to the same action again. “The mere physical or theoretical possibility that the same party may be subjected to the same action again is not sufficient to satisfy the test.” Woodfield, 305 S.W.3d at 419 (citing Murphy, 455 U.S. at 482). The therapists who testified at trial were generally in agreement that it was possible for therapy and a step-wise integration of the children into their new blended family to help remediate the alienation between Coburn and his children and help the children heal emotionally. If these measures were beneficial in rectifying the problems between Coburn and his daughters, it would not be reasonable to expect the trial court to have an occasion to impose similar restrictions in the future. Correspondingly, if therapy was not effective, it would not
be reasonable to expect the trial court to continue to pursue a course of action that had proven fruitless. Although it is certainly possible that the same or similar restrictions could be imposed in the future, there is no demonstrated probability of that occurrence. Accordingly, we conclude that Coburn‘s first appellate issue is moot, and we therefore vacate the portion of the trial court‘s judgment placing restrictions and conditions on Coburn‘s rights of possession and access. See Thompson v. Ricardo, 269 S.W.3d 100, 103-04 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (when case becomes moot during appeal, appellate court should vacate trial court‘s judgment).
Rights and Duties of the Parents
The second complaint Coburn advances is that the trial court abused its discretion in awarding Moreland the exclusive right to make decisions regarding E.C.‘s and P.C.‘s education and to consent to non-invasive medical and dental procedures on their behalf.18 Coburn contends there is no evidence that he should be denied participation in such significant matters of decision regarding the children. He further contends there is no evidence that he and Moreland were in actual conflict regarding the children‘s education and non-invasive health-care decisions or that he was apathetic about or neglectful of these matters. Accordingly, he contends there is no evidence to support the trial court‘s determination that limiting his parental rights is in the children‘s best interests.
In the agreed divorce decree between Coburn and Moreland, the parties were granted the joint right to make educational decisions and to consent to non-invasive medical and dental procedures on behalf of their daughters. The Family Code provides that the court may modify a prior order (1) if doing so would be in the child‘s best interest and (2) if the child‘s or parties’ circumstances have “materially and substantially changed” since the order was rendered.
As to the first element, there is no bright-line rule for determining what is in a child‘s best interest; each case must be determined on its unique set of facts. See Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002). In this case, it is fairly indisputable that Moreland and Coburn have been un-able to co-parent amicably. Indeed, there is overwhelming evidence that they have not been able to communicate with one another without escalating conflict, and as a result, they have largely withdrawn from communicating with each other. While Coburn blames Moreland for the conflict and lack of communication, there is ample evidence that Coburn contributed to or incited the conflict; there is also some evidence that for some period of time and to some extent he voluntarily ceded to Holly his responsibility to communicate with Moreland and the girls’ therapists. The record also contains evidence that Coburn has challenged Moreland‘s authority under the agreed divorce decree to make regular medical and dental appointments for the girls and to re-enroll them in their extracurricular activities without his consent. The tensions between Coburn and Moreland also resulted in Moreland‘s failing to effectively communicate with Coburn about an issue with P.C.‘s reading ability.
Dr. Sherry testified that one of the parents should be given the exclusive right to make significant decisions regarding the children because Coburn and Moreland cannot effectively co-parent. Although Dr. Sherry did not recommend one parent over the other, she observed that Moreland is the “predominant” parent. The record supports this observation with undisputed evidence that Moreland has always been the primary caretaker for the children and principally responsible for taking them to school, extracurricular activities, and medical appointments. In contrast, Dr. Sherry testified that Coburn has a number of psychological issues that interfere with his ability to respond appropriately to the children‘s emotional needs. Dr. Sherry‘s psychological evaluation of Moreland and Coburn was also introduced into evidence. In that report, Dr. Sherry
Whatever the cause or blame for the conflict, there is ample evidence that Moreland and Coburn cannot effectively co-parent. The trial court was therefore justified in selecting one parent as exclusive decision-maker to avoid conflict. Rather than taking a kitchen-sink approach, the trial court made a reasoned analysis in determining which decisions should be exercised exclusively by one parent because they are likely to arise more frequently than other matters over which the parties retain joint decision-making authority. At the conclusion of the trial, the court explained that the high-conflict nature of the case warranted the assignment of exclusive decision-making rights for education and health care to provide a measure of stability for these important decisions and to avoid the parties’ “coming back to court every time a decision needs to be made.” Moreover, there have been actual conflicts and lapses regarding the children‘s educational needs and participation in extracurricular activities due to the dynamic between Moreland and Coburn. Furthermore, Moreland is and has been the primary parent, and she retains primary possession of the children, which makes the trial court‘s assignment of those rights to her logical. Finally, there is evidence that Coburn‘s ability to place his children‘s needs before his own is impaired. See Garza v. Garza, 217 S.W.3d 538, 553-54 (Tex. App.—San Antonio 2006, no pet.) (trial court did not abuse discretion in awarding exclusive health-care and education decision-making rights to father in light of evidence that mother “had difficulty thinking rationally and logically, controlling her mood swings and anger, and arriving at a logical solution when faced with a problem“). The trial court retains broad discretion in crafting the rights and duties of each conservator to promote the children‘s best interests. See Swaab v. Swaab, 282 S.W.3d 519, 532 (Tex. App.—Houston [14th Dist.] 2008, pet. dism‘d w.o.j.). On this record and under the highly deferential standard of review applied in modification cases, we cannot conclude that the trial court abused its discretion in granting Moreland the exclusive right to make education and health-care decisions in the children‘s best interests.19
Coburn did not challenge proof of the second modification element, that is, a material and substantial change in circumstances since rendition of the agreed divorce decree. Even if his brief could be construed to include such a challenge, there is ample evidence from which the trial court could have concluded that there was a material and substantial change in the parties’ ability to effectively co-parent since rendition of the agreed divorce decree. In addition, Coburn‘s counter-petition for modification of parental rights—which included the very rights at issue in this appeal—alleged a material and sub-
stantial change in circumstances, which constitutes a judicial admission as to this element. See In re A.E.A., 406 S.W.3d 404, 410 (Tex.App.-Fort Worth 2013, no pet.).
In sum, Coburn has not shown that the trial court acted in an unreasonable and arbitrary manner or without reference to guiding principles when it found that it was in E.C.‘s and P.C.‘s best interests for Moreland to be awarded the exclusive right to make educational and non-invasive health-care decisions. We overrule Coburn‘s second issue.
Child Support
In his third appellate issue, Coburn challenges the trial court‘s award of increased child support.20 Coburn contends the trial court abused its discretion by (1) modifying his child-support obligation based on a finding that he is voluntarily underemployed; (2) erroneously calculating the “proven needs” of the children; (3) failing to provide specific reasons for imposing child support in excess of the percentage guidelines in section 154.125 of the Family Code; and (4) considering his interim voluntary support payments in modifying his support obligation.
A trial court has the authority to modify a child-support obligation if “the circumstances of the child or a person affected by the order have materially and substantially changed” since the rendition of the prior order of child support. See
In contesting the trial court‘s finding of voluntary underemployment, Coburn asserts that neither his income nor his “earning potential” changed following the divorce. He contends that the only material changes of circumstance were that he became romantically involved with a wealthy woman whose generosity and support have enabled him to pursue a business venture that currently pays him no income but has the potential for being very lucrative. As Coburn points out, the resources of a new spouse are not relevant to determining the net resources of a child-support obligor, see
In the agreed divorce decree, the parties acknowledged that Coburn was unemployed, and his child-support obligation was set taking that circumstance into consideration. However, the decree also reflects—with bolding and underlining for emphasis—that the parties anticipated that Coburn would be seeking employment more commensurate with his earning po
Coburn suggests that the relevant time period for determining whether there has been a material and substantial change of circumstances is fixed as the period of time between the date of the original divorce decree and the date the modification petition was filed. He asserts that, in the present case, his eventual acknowledgment of being voluntarily underemployed falls outside the short 41-day time frame between those events. Using the petition-filing date as an evidentiary cutoff, he intimates that there is evidence only that he was in the process of becoming voluntarily underemployed at that time but no evidence that he was actually voluntarily underemployed until some later date preceding the bench trial.
We are aware that there are several cases stating that the pertinent time period under section 156.401 is the period of time between the date of the order to be modified and “the time the modification is sought.” See, e.g., London v. London, 94 S.W.3d 139, 144 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (citing 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)). Coburn construes the phrase “the time when modification is sought” as referring exclusively to the date the modification petition was filed, and as a result, he appears to be asserting that the trial court cannot consider evidence arising after that date.
The relevant time frame was not at issue in the cases using the “time when modification is sought” language. We cannot find a single case in which the ending date of the comparative time frame was a substantive issue, let alone one expressly limiting evidence to the circumstances exist
Section 156.401 authorizes the trial court to modify a child-support order in the event of changed circumstances “since . . . the date of the order‘s rendition” (or on the happening of other events not relevant here).
Moreover, treating the petition date as an evidentiary cut-off date would be inconsistent with the unique statutory scheme applicable to SAPCR proceedings. In a typical civil case, the date the petition is filed can implicate significant issues like a statute of limitations and the trial court‘s jurisdiction. In SAPCR proceedings, however, the trial court retains continuing, exclusive jurisdiction to modify a prior final order. Id. § 155.001. The only temporal limitation on the court‘s authority to modify a support order is that circumstances have changed materially and substantially since the prior order, and the only limitation on a party‘s ability to file a modification suit is that the request be in
In sum, under the unique statutory scheme applicable to modification proceedings, there need only be a good-faith basis for instituting a modification suit and, at the end of the day, sufficient evidence that there has been a material and substantial change of circumstances warranting modification of the support order. See id. §§ 156.002 (anyone with standing can file modification suit), .004 (rules of civil procedure apply in modification suit), .005 (trial court must award attorney‘s fees if modification suit is filed frivolously or is designed to harass a party); see also
In addition to the foregoing issues, Coburn complains that in increasing his child-support obligation from $600 per month to $2,716.25 per month, the trial court (1) applied an improper legal standard in determining that he was voluntarily underemployed and thus wrongfully “deviated” from the statutory child-support guidelines on that basis, (2) failed to specify the reasons for awarding more than the percentage guideline maximum in section 154.124, (3) incorrectly calculated the children‘s support needs, and (4) improperly relied on his voluntary support payments under agreed temporary orders. We address these matters in turn.
Section 154.066 of the Family Code provides that “[i]f the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the earning potential of the
Texas Family Code section 154.066 contains no requirement of proof that an obligor be intentionally unemployed or underemployed for the purposes of avoiding child support. Where a trial court determines that an obligor is intentionally unemployed or underemployed, it is in the court‘s discretion to set child support based on earning potential.
339 S.W.3d 74, 83 & n. 8 (Tex.2011). The court expressly observed that the limitation Coburn suggests here is found nowhere in section 154.066. See id. at 80-81 (“Because section 154.066 is unambiguous, we decline to read into the statute an extra proof requirement that the Legislature did not express.“). Coburn contends, however, that Iliff does not apply in this case because the facts in Iliff involve what he calls a “guidelines” child-support award, rather than a “deviation” from the child-support guidelines, which he says occurred in this case. Although this distinction is likewise absent from the express language of section 154.066, Coburn argues that a more restrictive definition of the term “intentional” is applicable when the trial court awards more than would result from strict application of the percentage guidelines in section 154.125 of the Family Code. Coburn presumes, without any substantive explanation, that a different “intent” standard applies to the extent an obligor‘s earning potential is found to exceed $7,500 per month.
Although the supreme court has not made the distinction Coburn suggests, it is apparent from the facts in Iliff that the child-support award in that case was based on an earning potential that was found to be less than $7,500 per month, which means that the child-support award at issue there was calculated using the percentage guidelines in section 154.125 of the Family Code as applied to the obligor‘s earning potential. See id. at 77. Section 154.125 is “specifically designed to apply to situations in which the obligor‘s monthly net resources are not greater than $7,500” and prescribes for such individuals a schedule of percentages that presumptively apply to the obligor‘s net resources, but only “[i]f the obligor‘s monthly net resources are not greater than [$7,500].”
In the present case, the court determined that Coburn‘s earning potential is
Accordingly, contrary to Coburn‘s claim on appeal, the trial court did not deviate from the percentage guidelines; rather, the trial court applied section 154.126 because section 154.125 by its express terms was not applicable. In accordance with section 154.126, the trial court applied the presumptive percentage guidelines and then exercised its discretion to award additional sums above the percentage guidelines.
Implicit in Coburn‘s argument is either that the limitation he advances is necessary to avoid inflated child-support awards or that section 154.066 does not apply to child-support awards under section 154.126. We disagree on both counts. In Iliff, the supreme court addressed concerns about the potential for unlimited child-support awards based on earning potential and noted that section 154.066 only applies when an obligor makes “significantly less” money because of intentional unemployment or underemployment. Iliff, 339 S.W.3d at 82. The court further noted that section 154.066 is permissive and that the trial court‘s discretion is tempered by the limits set in chapter 154 and by the requirement that there be sufficient evidentiary support for a finding of intentional unemployment or underemployment. Id. As an aside, the court further noted that one of the limitations in chapter 154 is that the percentage guidelines in section 154.125 apply only to the first $7,500 of the obligor‘s net monthly resources. Id. at 82 n. 7. What was not implicated by the facts in Iliff, and thus not discussed, is that even when an obligor has an earning potential in excess of $7,500, child-support awards are not unlimited because they are capped at the proven needs of the child. See
Although not directly stating so, Coburn seems to infer from the lower court‘s opinion in Iliff that the phrase “support guidelines” used in section 154.066 refers only to the percentage guidelines in section 154.125.24 The supreme court did not make such a holding, and we believe such a construction would be incorrect. Chapter 154 of the Family Code devotes an entire subchapter to what it deems “child support guidelines.” See
We further reject Coburn‘s contention that the trial court failed to specify its reasons for awarding more than the percentage guideline amount. Under section 154.130 of the Family Code, “if the amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines under section 154.125,” the trial court must issue a variety of specific findings, including “the specific reasons that the amount of child support per month ordered by the court varies from the amount computed by applying the percentage guidelines under Section 154.125 or 154.129, as applicable.”
Next, Coburn challenges the trial court‘s calculation of the children‘s support needs. At trial Moreland introduced evidence concerning the actual expenses incurred to support herself and the children each month, including a monthly expense statement she prepared. The expense statement included mortgage and household expenses, food and groceries, clothing, medical and mental-health care and insurance, transportation, life insurance, childcare fees, children‘s activities and entertainment, and other incidentals such as personal grooming and charitable giving. Considering Moreland‘s evidence, which showed monthly expenses in excess of $10,000, the trial court determined that
Coburn complains that the trial court arbitrarily allocated one-third of the mortgage and transportation expenses to the children and 100% of the life insurance to the children. He also complains that the trial court improperly included “lifestyle” expenses for maid service, cable television, yard maintenance, caretaking of the household, cleaning supplies, vehicle maintenance, car insurance, and life insurance, which he contends are not properly considered to be “needs” of the children. Although we question whether Coburn properly preserved these complaints for appellate review,25 nonetheless, assuming that he did, we hold that the trial court‘s allocations were reasonable and that the inclusion of the disputed expense categories was not an abuse of discretion.
The phrase “needs of the child” is not defined in the Family Code, but courts have long held that it is not limited to the “bare necessities of life.” Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 n. 3 (Tex.1993) (applying prior version of Family Code that included similar language). As a result, the trial court must determine what the needs are on a case-by-case basis by following the “paramount guiding principle: the best interest of the child.” Id. Coburn points to no authority that requires segregation of non-divisible expenses, prohibits the trial court from making a reasonable allocation of non-divisible expenses, or prohibits the court from considering the disputed expenses as needs of the children. Indeed, while the phrase “needs of the child” is not so expansive as to encompass the most extravagant demands, the trial court is given broad discretion to determine what a child‘s reasonable needs are. See MacGillivray v. MacGillivray, No. 04-10-00109-CV, 2011 WL 2150352, at *3 (Tex.App.-San Antonio, June 1, 2011, pet. denied) (mem. op.); Dolan v. Martine, No. 03-03-00112-CV, 2004 WL 314972, at *3 (Tex.App.-Austin Feb. 20, 2004, no pet.) (mem. op.). We hold that the trial court‘s findings related to E.C.‘s and P.C.‘s support needs are within the reasonable bounds of its broad discretionary authority and the evi
In Coburn‘s final challenge to the child-support award, he contends the trial court improperly considered his voluntary payment of $1,875 per month when it increased his child-support obligation to $2,716.25 per month. The Family Code specifically provides that “[a] history of support voluntarily provided in excess of the court order does not constitute cause to increase the amount of an existing child support order.”
IT IS ORDERED that the child support increase under the Temporary Orders filed in this case is acknowledged as KIRK COBURN‘S voluntary increase and IT IS ORDERED that the child support was increased retroactively for each month that child support was paid to match the actual child support received by JANET MORELAND. The Court finds that there is no arrearage or overpayment as of June 30, 2012.
Thus, in the modification order, the trial court expressly acknowledged that Coburn‘s payment of $1,875 under the prior temporary orders was voluntary and ordered that child support was retroactively increased only to the extent of matching amounts actually paid so as to eliminate any dispute as to an arrearage or overpayment. In finding of fact 45, the trial court likewise determined that there was no arrearage or overpayment of child support as of June 30, 2012. The increased child-support obligation of $2,716.25 per month was ordered to begin on July 1, 2012, and was not made retroactive. The trial court never cited Coburn‘s voluntary payment as a basis for calculating child-support going forward, and no reasonable inference to the contrary is found in the record. We conclude that neither the modification order nor the trial court‘s findings of fact and conclusions of law supports Coburn‘s claim that the trial court based the modified child-support obligation, in whole or part, on his agreement to voluntarily increase his support payments while the modification suit was pending.
In any case, as previously discussed, the trial court‘s support order is amply supported by sections 154.126 and 154.066 of the Family Code as applied to the court‘s findings of voluntary underemployment, earning capacity of $200,000 per year, net resources of $12,736.11, the children‘s proven needs of $3,557.50 per month, and equitable division of the children‘s additional support needs. See id. §§ 154.066 (governing intentional unemployment or underemployment), .126 (governing application of guidelines to net resources exceeding $7,500 per month).27 Consequent
Because some evidence of a substantive and probative character supports the trial court‘s child-support award, Coburn has failed to show that the trial court abused its discretion. Accordingly, we overrule Coburn‘s third issue.
Attorney‘s Fee Award
In Coburn‘s final appellate issue, he contends the trial court abused its discretion when it awarded Moreland a significant portion of her attorney‘s fees because she was not the “successful” or “prevailing” party and no finding of “good cause” was made or supported by the record. Although Moreland successfully defended Coburn‘s modification counter-petition and was afforded material relief on her own petition, the trial court denied her requests to be granted several exclusive decision-making rights and her request that Coburn be required to exercise possession in Travis County and take the children to their extracurricular activities and events during that time. The trial court also awarded Moreland slightly more than one-third of the increased child support she requested.28 Because Moreland was awarded less than all the relief she had requested, Coburn contends that she is not a “prevailing party” and that the trial court was required to find both “good cause” to award her any amount of attorney‘s fees and that the fees awarded were incurred “for the benefit of the children.” We disagree.
Under the Family Code, the trial court has discretion to “render judgment for reasonable attorney‘s fees and expenses and order the judgment and postjudgment interest to be paid directly to an attorney.”
Although Coburn cites Family Code cases that have employed a “successful party” or “good cause” analysis, those cases have either (1) applied prior versions of section 106.002 that required an award of attorney‘s fees to be “taxed as costs” or (2) relied on cases that had applied prior versions of the statute.30 See, e.g., In re M.A.N.M., 231 S.W.3d 562, 566 (Tex.App.-Dallas 2007, no pet.); Carlson v. Carlson, 983 S.W.2d 304, 308-09 (Tex.App.-Houston [1st Dist.] 1998, no pet.); Nordstrom v. Nordstrom, 965 S.W.2d 575, 583-84 (Tex.App.-Houston [1st Dist.] 1997, pet. denied); Marichal v. Marichal, 832 S.W.2d 797, 798 (Tex.App.-Houston [14th Dist.] 1992, no writ); Goheen v. Koester, 794 S.W.2d 830, 835 (Tex.App.-Dallas 1990, writ denied); Marichal v. Marichal, 768 S.W.2d 383, 385 (Tex.App.-Houston [14th Dist.] 1989, writ denied); Reames v. Reames, 604 S.W.2d 335, 336-37 (Tex.Civ.App.-Dallas 1980, no writ). Although prior versions of section 106.002 allowed recovery of attorney‘s fees as “costs,” the current version of the Family Code does not and instead distinguishes between costs and attorney‘s fees. See
Moreover, when attorney‘s fees were still being taxed as costs under the immediately preceding version of section 161.002, several courts observed that the statute “[did] not require a family court judgment to state good cause for adjudging costs against the successful party as is required in other civil cases” because “the legislature recognized the difficulty of deciding, in family cases, which party is successful.” Billeaud v. Billeaud, 697 S.W.2d 652, 655 (Tex.App.-Houston [1st Dist.] 1985, no writ) (discussing amendment to former version of statute that deleted language requiring costs to be awarded “as in other civil cases“); see also, e.g., Nichol v. Nichol, No. 07-12-00035-CV, 2014 WL 199652, at *5 (Tex.App.-Amarillo Jan. 15, 2014, no pet.) (mem. op.) (observing that “good cause” requirement had been superseded by statutory amendment in 1981 when legislature removed “as in other civil cases” language from prior version of statute); Carlson, 983 S.W.2d at 308-09 (quoting Billeaud, 697 S.W.2d at 655). Although success on the merits and good cause may be relevant in considering whether a trial court abused its discretion in awarding one party its attorney‘s fees under section 106.002, those are not compulsory requirements under the statute as presently worded.
Even in cases applying a “successful party” analysis, we discern no requirement that a party win on all or even most of the requested relief. The absence of a bright-line rule (or even an articulable rule) in these cases is consistent with the broad discretion trial courts are afforded in awarding attorney‘s fees in SAPCR proceedings. Cf. Lenz v. Lenz, 79 S.W.3d 10, 21 (Tex.2002). It is further consistent with the legislature‘s recognition that it is often difficult to identify a “successful party” in SAPCR proceedings, see Billeaud, 697 S.W.2d at 655, and with the principle that the trial court is in the best position “to sense the ‘forces, powers, and influences’ that may not be apparent from merely reading the record on appeal.” In re A.L.E., 279 S.W.3d 424, 427 (Tex.App.-Houston [14th Dist.] 2009, no pet.).
Rarely is one party a clear-cut “winner” in a SAPCR proceeding, and the present case is no exception. Neither Moreland nor Coburn was a total victor. Although both prevailed to a degree, Coburn acknowledges that Moreland achieved significant victory and repeatedly complains on appeal that the trial court‘s order was “one-sided.” Even without this concession, it is evident that Moreland pre
CONCLUSION
Based on the foregoing analysis, we vacate the portion of the trial court‘s judgment modifying Coburn‘s possession and access to E.C. and P.C. and dismiss as moot that portion of the appeal. Finding no abuse of discretion as asserted in appellate issues two, three, and four, we affirm the remainder of the trial court‘s modification order.
Notes
The agreed divorce decree provides:
For the period of time while KIRK BRAND COBURN is unemployed, IT IS ORDERED that KIRK BRAND COBURN is obligated to pay and shall pay to JANET MORELAND COBURN child support for two (2) children in the amount of $600.00 per month . . . .
FURTHER, IT IS ORDERED that as soon as KIRK BRAND COBURN gains employment, his monthly child support obligation will be recalculated pursuant to the guidelines as set forth in the Texas Family Code.