## In the Court of Appeals Second Appel late Di strict of Texas

at Fort Worth

___________________________ No. 02

- 21

- 00056

- CV

___________________________

On Appeal from the 233rd District Court Tarrant County, Texas Trial Court No. 233

- 458476

- 09
Before Womack, Wallach, and Walker, JJ. Memorand um Opinion by Ju stice Womack 

### I N THE 

### I NTEREST OF 

### K.F., R.F., AND 

### T.F., C HILDREN2 MEMORANDUM OPINION
I. I NTRO DUCTION In th is suit involving a parent

– child relationship, Appellant T.F. (Mother)

s ought modification of child

- support payment s by Appellee R.F. (Father) for their three children, K.F., R.F., a nd T.F

. ( the Childre n )

. In the first trial on the requested
modif ication, th e trial court granted the modifica tion , Father appealed , and w e reversed and remanded for a new trial. In re K.F. , No. 02

- 18

- 00187

- CV , 2018 WL
6816119 , at *1 (

Tex. App.

— Fort Worth De c. 27, 2018, pet
. denied ) (mem. op.). After conducting a new trial , the tr ial c ou rt deni ed the modification , and Mother now appeals. We will a ffirm.
II. B ACKGROUND
P art of t he factual background of the parties ’ dispute i s detailed in our prior opini o n. In 2013, pursu ant to a mediated s ettlement agreement, the t ria l court si gned an agree d order ( Agreed Order), which provided that Mother and Father would be the Children ’ s joint managin g conservators and that M other had the exclusive right to designate t heir residence
an ywhere in the United States. Because Mother pla nned to (a nd did) move with the Children to Virginia, Father and Mother agre ed that Father ’ s monthly child [

- ] support payments wou ld be $1,000 because Father would excl usively bear all costs o f travel.
After mo ving to Vir gin i a, Mother remarried and moved i nto her new s pouse ’ s 8, 000 square f oot home, with its $6,0 00 mont h l y mortgage payment
. In April 2017, a Virginia court signed an order (Consent Order) , which, relevant to this appeal, modifi ed the Agreed Ord er by altering Father ’ s possession and access sc hed ule. Alth ough th ey dis agree abo ut the exac t numbers, both Mother and Father acknowledge that the3

Consent Order decreased the number of days that Father had possession of and access to the C hildren . Yet t he order increased his travel costs because cert ain blocks of his vi sit ati on period s were broken into smaller periods of possession, thus requiring him to pay for additional travel arrangement s. In January 2017, Mother filed the underlyin g petition for mo d ification of child support , seeking an inc rease in Fath er ’ s monthly payme nt
. Id. at * 1. After the first modification trial , the trial court ordered Father to pay $ 4,865
per mo nth, with retroac t

ive support. Id. at *2. The order also in cl uded step

- down 1 provisions that reduced Father ’ s monthly child

- support paym ents as eac h child t urned
ei ghteen. Id.
In the appeal of that order, we noted that it was undisputed that Father ’ s income had significantly inc reased from 2013 to 2016, which “ al one is sufficie nt to establish a material and substantial chan g e in his cir cumst ances, permitti ng the t rial

c ourt to modify the Agreed Order. ” Id. at *4. However, after reviewing the evidence,

we stated that “ the evidence is insufficient to support the f inding th at the Chil dren ’ s proven needs [were] $9,150 per mont h

. . . . ” Id. at * 6. T herefo re, we he ld that the
trial court h ad abused its discretion by ordering Father to pay child support above the

1 As not ed in our earlier opinion, a “ step

- down ” provisio n in a child support order refers to the Family Code ’ s requirement that when a court orders support for more than one child, t he o rder must provide fo r a payment d ecre ase or “ partial t ermination ” up on t he te rmination of support for a child

— for example, whe n a child turns eighteen

. Id. at *1 n. 1 (citing Tex. Fam. Code Ann. § 154.127(a)).4

statutory guidelines , and we reversed the modificatio n order and reman ded for a new
trial. Id.
I n August 2020, t he tr ial cou r t held a new tr ial on the mo tion to mod ify. At the beginning of the trial, Father “ agreed and stipulated there has been a material and substantial change ” due to his increas ed income. However , he d isagreed tha t the

mate r ial and subs t antial change a l one w arranted a modification.
At the second t rial, f

ive witnesses

— Stepfather , Mother, Father, Mother ’ s attorney, and Father ’ s attorne y
— testif ie d, and forty

- three documents were admitted
into evidence. St epfather testified that he “ pay[s] the bills ” and “ run[s] all of the bank

accounts. ” Because he primarily operated and co ntrolled the exp enses in the
househol d, Stepfather pre pared spre adsheets “ lis ting all of the expenses that w e consi dered in th is ca s e. ” To prepare the spreadsheets, he went t hrough “ [ b ] ank

st atements, credit card statements, u tility bills, et ce te ra . ” He included three

- fifths of

most expenses becau se “ the child ren make up three

- fifths of the hou s ehold that live
h ere [,] ” a nd this was “ t he best choice of the way to split the costs. ” As Stepfather explained, “ I took 12 months of al l the bills, added them together, got a yearly

- - broke it up by 12 and th en d ivided by three

- fifths. ” Expenses inc luded , among other things, the house pay m en t , utilities , and H OA dues

. According to Stepfather , the

e xp enses attributable to the C hildre n totaled $13,097.52 per mo nth

. However, neither
he n or Mother consult ed Father be fore they b ought things f or the C h ildren.5

Mother testified regarding the C hi ldren’s need for ce ll phones , a car , clot hi ng, food, entert ainment , medical care, dental care, and extracurr icular activi ties

. In
add ition to the current expenses o n the spread sheet that Step father prepared , s he

want ed to hire tutors for the C hildren a t a c ost of $ 600 to $ 700 per chi ld per month ; however, she ha d not discussed the t utoring with Fa ther

. On cross

- examination,
Mot her stated that she wanted Father to pay for ea ch child to have an iPhone ; a rental

car when Mother and one of the C h ildren “ fl e w to Ari zo na to meet with her shot put
and discus coach ” ; expen ses at Tropical Smoothie caf e , Main Event , FragranceNet.com , Hampton Inn & Suites , and Bath & Body Work s ; portion s of the monthly pest control and th e dog ’ s expenses ; expenses at Victoria Na il s f or one c hild to get her nails done ; an Xbox Live Gold membership ; and fishing lures for one of
the C hildren

. Mother admit ted t hat Fathe r pays the travel expenses to see the
C h il d ren, b oth bring

ing them to Texas and going to Vi rginia to see the m . Also o n cross

- examination, Father ’ s attorney pointed out to Mother tha t at the
first trial, Mother had testified that she does not want to have to ask Father about any
expens es related to the C hil d ren. At the secon d trial, Moth er testified similarly : [Father ’ s a ttorney] Q. It ’ s true, ma ’ am, just like in the trial in 201 7, that you would like [Father

] to pay for th e e xpenses of the ch ildren and you can m ake all of th os e decision s; is tha t correct? [Mother] A. Yes. Q. And you don ’ t want to ever be ordered or h ave to consult with h im about a ny of these decisions, right?6 A. That ’ s correct. Father test ified t hat his income had dramatically increase d sinc e 2013. Wh en he signed the 2013 a greeme nt, his inc om e was “ eighty

- five, maybe a hund r e d and ten,

so meth in g like that ” annually. At the t ime of the second trial, his ne t mont h ly inco me was a littl e over $100,000 a month. Fa ther testified th at Mother ’ s income had also
inc reased to “ tw o fifty ” ann ually. Father ’ s income had gone up approximately 1000
per cent , and Mother ’ s income had gone up app roximately 150 per c ent. He said that
he pa ys travel expenses in relation to seei ng the C h ildren and bringing t h em to Texas , as well as the expe nses for them when they are together

. In addition, Father pays for
all of th e C hildren ’ s he alth insurance.
Fath er ask ed th e trial court to consider th at Mother d id not co nsult wit h him
about any of the Ch il dren ’ s expe nses. D ue to the prior agreement, the travel expenses, and the co

- parent ing issu es, Father asked the tr ial cou rt to k eep his child support at $1,000 a month.
A s noted a bo ve, the trial court admitted numerous exhibits of fered by Moth er and Father. Mother ’ s admitted exhibits included a summary of her requested relief ; her attorney ’ s fees summary and billing s tate me nts ; the spreadsheet prepared by Stepfather ; statements fr om Veri zon , Co stco Vi sa, Domini on En erg y Virginia, Vivi nt
H ome S ecurity, N avy Federal Credit Union, National Propan e Buyer ’ s Cooperative, and Wells Fargo Visa ; a USAA auto

- insurance polic y (co veri ng four vehicles) ; a transaction history for a 2018 Ford Edg e ; med ical and dental bills ; and an email7

regarding tu toring. Father ’ s admitted exhibits included a su mmary of his requested
relief ; his attorney ’ s fees summ ary , billing statements, and fee a gree me nt ; a Tex as Attorney General child

- support pay me nt record ; a copy of In re K.F. and excerpts
from the opinion ; the 2013 A gr eed O rder and the fir st modification order ; Father ’ s financial information , earnings st atement , and IRS documents ; Mo ther ’ s di s cove ry
responses ; Mother ’ s su mmary of expenses from th e first and second trial ; exce rp ts of
Mother ’ s testimony from the first trial ; three 2017 Virginia Consent Order s (one for

ea ch child) ; a s ummary of child

- support overpayment s ; Father ’ s tri al brief ; Our Fam il

y Wiz ard message excerpts ; cop ies of various t ri al court pleadings; and the testimony
and exhibits f

rom the first t rial

. At the conc lusion of the trial, the trial court stat ed, [T]he C ourt finds that the parties entered into an agreement back in 2013 f o r the paym ent of child s uppo rt an d for the needs of the

. . . children and that agreement was entered into with the assi stance of counsel [ o f] both parties. T he Court find s that it was foreseeable that the income of both parties could either in c rea se or de crease, and that an
a gree ment was en tered into with that foreseeability in mind. Thereby, the Court f

inds that there has not been a material change in circumstances conce rning the chi ldren as the parties agreed to and entered into an amount of chi ld sup po rt belo w the gui delin es with the
u nd erstanding that the father would pay for costs of travel both ways fo r visitation.
T hereafter, t he t rial court si gn ed an o rder denying Mother ’ s motion to modify child
support , order ing Father to pay child supp ort in t he amount of $1,000 a mo nth,

t ermin at ing the order requiring the with holding fro m Father ’ s earnings, credi t ing the8

o verage of child support that Father had paid to his cu rrent child

- s upport obligation , and order ing Father to maintain health and den tal in su rance for the Chil dren

. Mo ther requested , and the trial court entered , findings of fact an d conclusion s of law, including the following : 5. T he specific reason tha t t he amount of child support per month ordered by the Court varies from the amoun t comp ut ed by appl ying t he percentage gui delines of Section 154.125 of the Texas Family Code is: the 201 3 agree ment of the parties.
6. [Fat her] has c ontinued to operate under th e agreement of the parties and a un i lateral revocation of their agreement is not i n the best i nteres t of the children

. 7. [Father] has bee n m aintaining and is willing to continue to maintain the children ’ s he alth ins urance. 8 . It is in the best inte res t of the children that [Father] continue to pay $1,000 per month in chi ld su pport. 9. It is in the best interest of the children that [ Father ] continue to maintain health i nsurance for the children.
Neither t he findi n gs nor the co nclusions address ed whether a material and substantial
ch ange occurred , and no request for additi o n al f in di ngs and conclusions was made. This appea l followed.
III. D ISCUSSION In four issue s , Mo ther challenges the trial court ’ s d enial of her motion to modif y . Issues one through three complain th at the trial cou rt “ erred by findin g that

no ma teria l and su bs tantial change had occu rred ” because (1 ) the parties had already stipulated to th e change , (2) the law

- of

- the

- case doc trine requires that the t rial court9

abide by the earlier appellate ruling, and (3) the finding was not support ed by l egally

or fac tually s ufficient evide nce. 2 I ssue four contends that the trial court e rred by finding that it was in the C hi ldren ’ s best inter est that the child support not be
modified “ as that was not supported by legally and factual ly suff icient evid e nce. ”
A. Stand ard of R eview
We review the trial court ’ s orders regarding c hild

- s upport modification for an
abuse of discr e tion. Worfo rd v. S tamper , 801 S.W.2d 108, 10 9 (Tex. 1990) ; In re T.D.C. , 91 S.W.3d 865, 872 (T ex. App.

— F ort Wo rth 20 02, pet. denie d). A trial cou rt abu se s its discretion if it ac ts arbitrarily or un reasonabl y or does not a nalyze the law properly. Iliff v. Il iff , 33 9 S.W.3d 74, 78 (Tex. 2011). The legal an d factual sufficiency of the evidence supporting th e modi ficati on order are n ot independent g rounds f or asserting error but are rele vant factors in
decidin g whe ther the trial court abused its discretio n . T.D. C. , 9 1 S.W.3d at 872. We
review the evi dence in the light most favorable to the court ’ s modi ficat ion ru ling a nd indulge eve ry presumption i n the ru ling ’ s favor. In re J.D. D. , 242 S.W.3d 916, 920 (Tex. App

. — Dallas 2008, pet. denied).
When a trial court i ssues finding s of fact, as it did here, those findings are subj ect to review under the same legal a nd fac tual s ufficiency standards as jury
f inding s. R obbins v. Robbins , 550 S.W.3d 846, 8 54 (Tex. App.

— Fort W orth 2018, no

2 Since Mother ’ s first three issues all addres s “ material and subs tantial change, ” we will d iscuss those issue s tog ether.10

pet.). Th e findings of fac t have the sa me force and dignity as a jury ’ s answers to jury questions. In re M.K.R. , 216 S.W.3d 58, 61

– 62 (Tex. Ap p.

— F or t Worth 2007, no pet. ) (c iting Ander

son v. City of Seven Points , 806 S.W.2d 791, 794 (Tex. 199 1 )). The

c onclusions of law may not be ch allenged for factual sufficiency, but they may be
reviewed to determine their correctness based upon the f acts. Id. a t 62 (citing Dominey
v. Unk nown H

eirs & Legal Rep s. of Lokomski , 1 72 S.W.3d 67, 71 (T ex. App.

— Fort
Wo rth 2005, no pet.) )

. B. Applicable La w When parents have entered into a n agreed support order that is different from
the amount r equired by the chil d

- supp ort guidelines, the trial c ourt h as di scretion to modify the support order “ o nly if t he circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order ’ s rendition

. ” K.F. , 2018 WL 68 16119, at *4 ( quo ting Tex. Fam. C ode An n. § 156.401 ( a

– 1 ) ). The trial court determine s whether a material a nd substantial change
has occurred by comparing the circumstances at the time of the initial order with
those at the time th e modification is sought. Id. ( citing In re Moore , 511 S. W.3d 2 78,
2 83 (Tex. App.

— Dallas 2016, no p et. ) ). A t rial co urt is not req uired to modify an
order to conform wi th statutory guidelines and, in fact, may do so only if it
de termines that the modific ation would b e in the chi ld ’ s b est interest. Cl ark v. Cla rk , No

. 03

- 20

- 00411

- CV, 2021 WL 3775565 , at *3 ( Tex. App.

—

Austin Aug. 26, 2021, no pet.) (mem. op. ) (citing Tex. Fa m. Code Ann. § 156.402(b)). In de te rmining whether11

to modify child support, the t rial court ’ s primary consi derati on is always the best
inter est of the ch ild. Id. (citing Rumscheidt v. Rumscheidt , 362 S.W.3d 661, 666 (Tex. App.

— Housto n [14 t h Dist. ] 201 1, no pet.) ).
C . Applic ation of Law to Facts
1. Material and Substantial Change
A s the basis of he r first t hree i ssues regarding material an d subs tanti al change,
Mother relie s on the trial court ’ s comment at the conclusion of the trial “ th a t there
has not been a ma terial change in circ umstances concernin g the children

. ” Howev er, as Fa ther n otes, the trial court did not make this finding in it s writ ten f indings of fact , and Mother did not request additional finding s r egarding m aterial and substantial change.
It is well settled that a n appellate court is “ not e ntitled t o look to any comments tha t the judge may have made at the conclusion of a be nch tria l as being a substitute for findings of fact an d con clusions of law. ” Spiers v. Maples , 970 S. W.2d 166, 170 (Tex . App.

— Fort Worth 1998, no pet. ) (citing In re W. E.R. , 669 S.W.2 d 716 (Tex. 1984))

. Neither may such com ments substitute for w ritte n find ings of fact and
conclusions of law or limit the gro un ds upon whi ch a ruling can be upheld.
Westmin ster Falcon/Trinity L. L .P. v. Chong Shin , No. 07

- 11

- 0033

- CV, 2012 WL 5231851 , at * 4 (Tex. App

. —

Amarillo Oct. 23, 2012, no p et. ) (mem. op.). Findings of fac t and c onclusions of law were entered in this case p ur suant to Te xas Rules of Civil Proc edure 296 and 297. Tex. R. Civ . P. 296, 297

. A c ourt is also12

requi red to make specific findi ngs w hen “ rendering an order of child support. ” Tex.
Fam. Code Ann . § 154. 130 (a ). But the specific Family Code findings are n ot require d

w hen a mo tion to modify is denied. S ee Rumscheidt , 362 S.W. 3d at 664

– 65 (holding
that when a motion to modify c hild s upport is denied, the t rial court i s not required to
make the spec ific sta tutor y findings required u nder Family Code Section 1 54.13 0 , but
i t is required to file findings and conclusions when timely and properly requested
under Texas Rules of Civil Pr ocedur e 296 a nd 297) ; In re J.A.H. , 311 S.W.3d 536, 543 (Tex. App.

— El Pa so 2009, no p et. ). Here, w hile several findings addressed th e best intere st of the C hil dren , t he trial

co urt did not make a finding or conclusion related t o material and substantial ch ange , and Mother did not request additional findings. See Tex. R. Civ. P. 298 ( “ Af te r the court files original findings of fact and conclusions of law, any pa rty may file with the
clerk of the court a request for specified additional or amended findings o r

con c lu sions. ” ). Th e failure to request amended or additional findings or conc lusio ns waives the right to complain on appeal abou t the trial co urt ’ s failure to ma ke the omitted findings or conclusio ns. Villalpando v. Villalpando , 480 S.W.3d 801, 810 (Te x. App

. — H ouston [14 th Dist. ] 2 015, no pet. ).
Because Mother failed to re quest a findi ng on material and substantial change,
she cannot now complain about this pa rt of the trial court ’ s ruling

. 3 See Smith v . Smith ,

3 In an y event, Fat her d oes not dispute that a material and substantial change ha s occurred. A t the beginning of the second trial , Father ’ s counsel stated, “ On top13

22 S.W.3d 140, 149 (Te x. App.

— Houston [14 th Dis t.] 2000, no pet .) ( holding party

w aived his right to complain on appeal a bout any error he assumed the court made by
f ailing to r equest additional f indings o f fac t and conclusions of law ). Therefore , issues one, two and three are ov erruled.
2. Be st Int erest
I n her fourth iss ue, Mo ther contends that the trial court ’ s best

- in teres t finding

was no t supported by legally and factually suff icient eviden ce. We disagr ee. To support a modification of child support, i n addition to proving that there
has b een a material an d substantial change since the date of the child suppor t orde r , Moth er was requ ired to prove the second element

— best inter est
. 4 See Tex. Fam.
Code Ann. § § 156.002, .40 1 ; see also id. § 156.402(b) ( “ If the am ount of support
contained in th e orde r does not substantially conform with the guidelin es for single

of th at, we actu a lly stipul ated to t he summary judgme nt file d by [Mother ’ s counsel] b ack in May, t hat there was a mate rial and substantial change. I am not arguing that today . I agree with [Mother ’ s counsel] on that. ” In his appellat e brief, cit ing to Family Code Secti on 156.401(a

– 1), Fat her agrees that “ the fir st elem ent th at Mother needed to prove was satisfied. ”

4 Father argues that Mother has conceded this element with the following statement in her appellate brie f: “ No evid ence was presented regarding the bes t in tere sts of the child ren as [it] r elates to whe the r or not a modifi cation should be granted. ” Because Mother ’ s st atement occurs in a section entitled “ Insufficient Evidenc e to Support a Denial of Modification, ” we wil l not tr eat her statement as a con cessi on that she failed to mee t her burden of proof. See Tex. R. App. P. 38.9; Coburn v. Moreland

, 433 S.W.3d 809, 827 (T ex. App.

— Austin 2014, no pet.) ( stating that the party seeking modification of a prior c hild

- support order h as the burden to establish all elements by a pre pondera n ce of the evidence ).14

an d mul tip le fa mil ies under C ha pter 154, the court may modify the order to
substa ntially conform with the guidelines if the modificat ion is in the best interest of
the child. ” ) ; Iliff

, 3 39 S.W .3d at 81 ( “ Moreover, in child support decisions, the

‘ paramount g uidin g p rinci ple ’ of the trial court s hould always be the best interest of
the child. ” ) ; In re S.C. , No. 02

- 17

- 00377

- CV, 2018 WL 52 89370, at *3 (Tex. App.

— Fort Worth Oct. 25, 2018, no pet.) (mem. op.) ( holding that a court may modify a
child

- support order if th e c ircum stances of the child or a person affected by the order have materially and substantially ch ange d and if the modificati on i s i n the child ’ s best
inter est)

. As we explained in our first opinion, once the court determin es that a material
and subs tantial chang e has occurred, the trial court has discretion to alter the amount of child support accordi ngly. See K. F. , 2018 WL 681 6 119 , at *4 (citing Nordstrom v.
Nordstrom , 965 S.W. 2d 575 , 578 (Tex. App.

— Houston [ 1 st Dist.] 1997, pet. denied)).
However , in no event may the court require the obligor to pay more than 100% of the proven needs of the ch ild. Id. (citing Tex. Fam . Co de Ann. § 154.126(b)).
What constitutes “ needs ” of the child has not been defined by statute. In re
C.A.W. , No. 14

- 16

- 00768

- CV , 2017 W L 392 7235 , at *4 (Tex. App.

— Houston [14 th Dist.] Sept. 7, 2017, no pet.) (me m. op.) . However, t he child ’ s ne eds shou ld be separated f

ro m t hose of the parent. Id. (citing Lide v. Li de , 116 S.W.3d 147, 158 (Tex. App.

— El Paso 20 03, no pet

. ) ).15

In the first t rial, the trial court ma de a fin ding that th e Children ’ s proven month ly needs were $9,150. K. F. , 2018 WL 681 6 119 , at *5. “ But t h e only evidence in
the record to support such a finding was a spr eadshe et of current expenses and
Mother ’ s correspondi ng concl usory testimony about pr oven needs on direct
examination

. ” Id. (footnote o mitted). And a s we noted, “ monthly exp enses and
pro ven needs are not the same thing ” ; thus, “ conclusory testimony regur gitati ng the contents of the spreadsheet of monthly e xpenses was insu fficient to esta blish that
those amounts refle cted needs of the ch ildren warranting an increased amount of
child suppor t beyond the statutory guidelines. ” Id.
In her brie f

, Mother summa rize s how she met her best

- interest burden : The grea t weight of the evid ence shows t hat Father makes over a mill ion dollars annually (which is more tha n ten times w hat he was maki ng seven years prior whe n the previous order was entered ), admitted on reco r d that he can e asily pay any and all expenses for his childre n (he just wants to pay the ones he deems reasonable, though and does not want Mother to ha ve contro l ov er this), and th at thes e parents co
- parent poorly. No re asonable person co uld conclude tha t an a ward of $1,000 per month for three children, wh ich is l ess than 1% of his net
m onthly resources, a deviation from the guidelines, is someh ow in th e best inter e st of the children. [ C itations to record omitted

. ] However, Father argue s that t his analysis igno res (1) t he partie s prior agreement,
includin g the te st

imony from the prior t rial regardin g why the parties made the
agreement ; (2) that Fath er pa id the travel e xpenses for visitation , some of the
C hildren ’ s expenses directly , and the C h ildren ’ s expenses when they were with him ; (3) that Mother did n ot consu lt with Father about any exp ense but wanted him to pay16

for everything; (4) that Mother w as un willin g to work with Father regarding visitation changes; and (5) th at Father w as wil ling t o pay the Children ’ s health insurance

.

a. 2013 Order
In the f in dings of fact, the trial court stated that “ [t]he specific reason that the

amo unt of child su pport per month ordered b y the Court varies f rom the amount computed by app lying t he percentage guidelines of Section 154.125 of the Texas Family Code is: the 2 013 agree ment of the parties. ” T he trial court further found
that “ Father has cont

inued to oper ate under the agreement of the parties and a unilateral revoc ation of their agreement is not in the best interest of the children. ”
T he 2013 Agreed Order, whi ch was si gned by all parties and their attorneys, set child support at $1,000 p er month

. The Agreed Orde r was based on a Media te d
Settlement Agreem ent, also signed by all parties and their attorneys, that stated,

“ Child support is below guideline to compe nsate for Father ’ s payment of ch i ldren ’ s travel exp enses for Fath e r ’ s possessi on & access periods. ” At the second trial, the transcri pt fro m the first trial was admitted, which
included the testimony from Mother about the reason for th e 2013 Agreed Order :

Q. [B ]a ck in 2 013, you and [Fat her] agreed that [Fat her ] wou ld pay below guideline child support; is that right?
A

. Yes, it is. Q

. And th e re ason for that

- - and this is for the record

- - is the Court made a finding that , “ . . . taking into accoun t the best i nterest of the children and the in crease d expe nse s of exercising possession of or access to the children resulting from [Mothe r ’ s] c hange of residen ce and17

the parties ’ agr eement, ” that he would pay child support below guidelines, right?
A

. Th at ’ s what the document says. Q

. And part of this agr eement was th at you and the children could move to Virginia. That was all in the same agree ment. A. Yes. Q. And you still live in Virginia, and you ’ ve lived in Virginia since 2013 when we made this agreement, righ t?
A. Yes.

. . . . Q. And he still pay s all the tra vel e xpenses now?
A. Yes. At the second trial, Mother test ified that Father had continued to pay the Children ’ s travel ex penses for visitation p urposes. Father testified similarl y:

Q. And in that [2013] agreed order, was there an agreement that your child support would be below guideline with regards t o the fact that you had to pay expens e s for the children relocating to Virginia?
A. Correct. At the second trial, Father t e stified that he wante d the trial court to “ ta ke into

c onsideration these agreements and the travel expenses ” in ruling o n the motion to

m odify.18 b. Childre n ’ s Needs /Best Interest
The t rial court ’ s findings of fa ct stated , “ It is in the best interest o f the children that [ Father] continue to pay $1,000 per month in child support. ” In addition, “ It is
i n the best interest of the chil dren that [Fa ther] c ontinue to maintain health in surance for the children

. ” In the second trial, Mother presented eviden ce that the mon thly n eeds o f the
Children had increased to $13,097.52

. A nd like in th e firs t t rial, a spreadsheet o f
household e xpens es was admitted into evidence. As Stepfather explained, to arri ve at the number for the C hildren ’ s needs, he “ took 12 m on ths of all the bills, added them together, go t a yearly

- - brok e it u p by 12 and then divided by three

- fif ths. ” While

t he spreadsheet included categories such as house payment, utilities , and ve hicle insurance, it also include d categories descri bed as “ P et Care/Gifts/Charity /Decorating , ” “ Lessons f or Boys, ” and “ Entertainment

. ” Testimony a nd exhibits presented at the second trial were similar to those presented at the first trial. A fter Mother presented her testimony an d evidence at the
second trial, F ather t estified that Mother was “ asking for t h e same expenses related to
her house and li festyle that she aske d for at the previous trial in 201 7

. ”

c. Analysis
From the record and the findings, it is clear that the trial court believed that the partie s should a d here to th eir 2013 Agreed O rder. The reason for the belo w
- guideline

c hild support

— because Father had to pay for all of the travel exp ense s once the19

Children moved to Virginia

— was set forth in the Mediated Settlement Agreement as well as the tes timo ny of Mother and Father in the fir st and second trials

. Tha t fa ct had remain ed constant since entr y of the Agreed Order. In addition, the second trial consisted of test imony and evidence similar to th at admitted at the first trial. It was essentially a request that Fathe r pay three

- fifth s of a l l household exp enses . However, t he testim ony regarding the expenses of the C h ildren

was , as stated in the earlier opinion, “ tied to [Mother ’ s] lifestyle change associ ated with the new marriag e and upgraded hous ing, which is insuffi cient to permit a child support award above the statu t ory gu idelines. ” K.F

. , 2018 WL 6816119, at *5. In the second trial, Mother maintained her belief that Father shou ld pay for the C hildren ’ s exp enses while Mother made all decisions about the expenses. And the second t rial

c o ntinued to focus heavil y on Father ’ s increased e arnings. See id. ( “ Our review of the
trial record reveals tha t t he trial testimony focused more on Father ’ s increased earnings rather than on the needs of the Chi ldren. ” ). While Moth er argues on appe al
tha t there was no evidence to support a “ no

- change ruling, ” th e burden was on Mother to offer evidence to support her request for the modification of child support.
See In re A.A.T. , 583 S.W.3d 914, 920 (Tex. A pp

— E l Paso 2019, no pet. )

. Fr om this record, we c anno t say that th e trial court abuse d its discretion in denying Mother ’ s moti on to modify Father ’ s child

- support obligation

. See Worford , 801 S.W.2d at 109 (holding that a n order re garding child support will n ot be distur bed

on a p peal unless the complain ing par ty can demonstrate a clear abuse of discretion );20

In re R.D. , No. 02

- 04

- 165

- CV, 2005 WL 503055 , at *2 (Tex. App.

— Fort Worth Mar. 3, 2005, no pet .) (mem. op.) ( “ In sum, t he trial court retains broad discret ion in making the eq u itabl e decision of wheth er to m odify a prior child [

- ] suppo rt order. ” ). Therefore, w e ov errule Mother ’ s fourth issue.
IV. C ONCLUSION Having o verruled all of Mother ’ s issues, we affirm the trial court ’ s order denyi ng the modification o f child support.

/s/ Dana Womack
D a na Womac k Justice
Deli vere d: December 2 , 2021