NO: 01-14-00629-CV 

IN THE 

FIRST COURT OF APPEALS OF TEXAS 

AT HOUSTON, TEXAS 

Elizabeth M. Trammell, 

Appellant 

v. 

Fletcher V. Trammell, Sr. 

Appellee 

from the 3081

h Judicial District Court 

of Harris County, Texas, The Honorable James Lombardino Presiding 

Trial Court Case No. 2010-72050 

REPLY BRIEF OF THE APPELLANT 

Maurice Bresenhan, Jr. 

Texas Bar No. 02959000 

Cynthia Keen Perlman 

TexasBarNo.11161700 

Zukowski, Bresenhan, Sinex & Petry, L.L.P. 

11 77 West Loop South, Suite 1100 

Houston, Texas 77027 

Telephone: (713) 965-9969 

Telecopier: (713) 963-9169 

Attorneys for Appellant 

ACCEPTED

01-14-00629-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

4/15/2015 5:08:25 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/15/2015 5:08:25 PM CHRISTOPHER A. PRINE Clerk
TABLE OF CONTENTS 

Table ofContents ....................................................................... i 

Table of Authorities.................................................................. 11 

Reply Points .. .. .. .. .. .. .. .. .. . . .. .. .. .. . .. .. .. .. . .. . .. . .. .. .. .. . .. .. .. .. . .. .... 111 

Abbreviations ....................................................................... 1v 

Summary of the Argument ............................................................ 1 

Argument ................................................................................. 2 

Prayer ..................................................................................... 13 

Certificate of Service .................................................................. 14 

Appendix ................................................................................. 15 

i 
TABLE OF AUTHORITIES 

Cases: Page: 

City of Pasadena v. Gennedy, 125 S.W. 3d 687, 691 (Tex. App - Hous. 

[l st Dist.] 2003, pet. denied)...................................................... 4-5 

City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003)... 7 

Dunaway v. Dunaway, 2007 Tex. App. LEXIS 8950 *25(Tex. App - Hous. 

[14th Dist.] 2007, no pet.)......................................................... 4 

In re Forlenza, 140 S.W.3d 373, 376 (Tex. 2004). .... .. . ... ... .......... .... 7 

Howethinvs., Inc.v. City of Hedwig Vil!., 259 S.W. 3d 877, 888 

(Tex. App - Houston [l st Dist.] 2008, pet. denied)........................... 4 

In re GE Co., 271 S.W.3d 681 (Tex. 2008).. ...... ... .. .. .. .. . .. ........ ... 6 

In re Marriage of Lassmann, 2010 Tex. App. LEXIS 6982 *10 

(Tex. App - Corpus Christi 2010, no pet.).................................. 10 

In the Interest of CC..!., 244 S.W. 3d 911, 924 (Tex. App-Dallas 

2008, no pet.).................................................................. 13 

Klumb v. Houston Mun. Emples. Pension Sys., 2015 Tex. LEXIS 266 

(Tex. 2015).... .... .. . ... .... ... . . ...... ........... ... .. . . ... . . ....... ......... ..... 7 

Moreno v. Perez, 363 S.W. 3d 725, 738 (Tex. App-Hous. 

[l st Dist.] 2011, no pet.)............................................................ 13 

Pharo v. Trice, 711 S.W.2d 282, 284 (Tex. App.-Dallas 1986, no pet.)... 10 

Rangel v. Rangel, 2014 Tex. App. LEXIS 9402 *6 (Tex. App-Austin 2014, 

no pet.)................................................................................. 4 

Rumscheidt v. Rumscheidt, 362 S.W. 3d 661, 666 (Tex. App-Hous. 

[14th Dist.] 2011, no pet.)........................................................... 8 

Sterner v. Marathon Oil Co., 767 S.W. 2d 686, 690 (Tex. 1989)............ 5 

ii 
Statutes and Rules: 

Texas Family Code § 14.06(a)(repealed) ........................................... 7 

Texas Family Code, chapter 154 .................................................... 6 

Texas Family Code, §156.lOl(a)(l) ............................................... 9, 13 

Texas Family Code § 154.124 ........................................................ 7 

Texas Family Code § 156.401 ........................................................ 6, 9 

Texas Family Code§ 156.402 ...................................................... 6, 7, 9 

Tex. R. App. P. Rule 38.9 ............................................................ 4 

iii 
REPLY POINTS 

1. Elizabeth clearly challenges the pertinent findings of fact and conclusions 

of law issued by the District Court in her briefing. 

2. Fletcher cannot support the District Court's erroneous grant of relief 

modifying downward the amount of Fletcher's child support obligations as 

he failed to produce any evidence or sufficient evidence that the change is 

in the children's best interest and that there was a material and substantial 

change in the children's or his circumstances. 

3. Fletcher cannot support the District Court's erroneous grant of relief that 

gives Fletcher the right, subject to the agreement of the other parent 

conservator, to make decisions concerning the children's education as he 

failed to produce any evidence or sufficient evidence that the change is in 

the children's best interest and that there was a material and substantial 

change in the children's or his circumstances. 

4. 

5. 

Fletcher cannot support the District Court's erroneous grant of relief that 

gives Fletcher the right, subject to the agreement of the other parent 

conservator, to consent to medical, dental and surgical treatment involving 

invasive procedures concerning the children as he failed to produce any 

evidence or sufficient evidence that the change is in the children's best 

interest and that there was a material and substantial change in the 

children's or his circumstances. 

Fletcher cannot support the District Court's erroneous grant of relief that 

gives Fletcher the right, subject to the agreement of the other parent 

conservator, to consent to psychiatric and psychological treatment of the 

children as he failed to produce any evidence or sufficient evidence that 

the change is in the children's best interest and that there was a material 

and substantial change in the children's or his circumstances. 

iv 
CR-xx 

RR-xx 

FF 

CL 

ABBREVIATIONS 

Clerk's Official Record --page numbers 

Reporter's Record -- page numbers 

Findings of Fact 

Conclusions of Law 

For the convenience of the Court, Appellant, ELIZABETH M. TRAMMELL, 

will be referred to as "Elizabeth," Appellee, FLETCHER V. TRAMMELL, SR., will 

be referred to as "Fletcher," and the children will be referred to collectively as "the 

children". 

v 
NO: 01-14-00629-CV 

IN THE 

FIRST COURT OF APPEALS OF TEXAS 

AT HOUSTON, TEXAS 

Elizabeth M. Trammell, 

Appellant 

v. 

Fletcher V. Trammell, Sr. 

Appellee 

REPLY BRIEF OF THE APPELLANT 

On Appeal from the 3081

h Judicial District Court 

of Harris County, Texas 

TO THE HONORABLE JUDGES OF THE FIRST COURT OF APPEALS: 

Appellant Elizabeth M. Trammell ("Elizabeth") replies to the Original Brief 

filed by Appellee Fletcher V. Trammell, Sr. ("Fletcher") as follows: 

SUMMARY OF THE ARGUMENT 

This case involves an Order in Suit to Modify Parent-Child Relationship, 

entered on June 30, 2014, which drastically changed the parties' agreements that 

they made in their Agreed Final Divorce Decree, signed May 23, 2011, and the Trial 

Court's Decree that approved those agreements and made them the judgment of the 

court. Elizabeth appeals the Trial Court's final judgment which drastically modified 
downward by 55% the amount of child support she receives from Fletcher (her 

former husband) and altered Elizabeth's independent right to make educational 

decisions, health care decisions and mental health care decisions for the children 

made the subject of the suit, all of which modifications are clearly not in the best 

interest of the children, and there is insufficient evidence that there was a material 

and substantial change in the children's or any conservator's circumstances as 

required by the Family Code. 

ARGUMENT 

The Pertinent Findings of Fact and Conclusions of Law Have Been Clearly 

Challenged By Elizabeth in her Briefing 

Fletcher's brief incorrectly asserts that Elizabeth has not challenged the trial 

court's findings of fact that the drastic reduction in child support is in the children's 

best interest and that there was a material and substantial change in either their or 

Fletcher's circumstances since the divorce. 

Fletcher's brief also incorrectly asserts that Elizabeth has failed to challenge 

the trial court's findings of fact that the modifications of Elizabeth's exclusive right 

to make decisions concerning the children's education is in the children's best 

interest and that there was a material and substantial change in either their or 

Fletcher's circumstances since the divorce. 

2 
Likewise, Fletcher's brief incorrectly asserts that Elizabeth has not challenged 

the trial court's findings of fact that the modifications of Elizabeth's independent 

right to make decisions concerning medical, dental and surgical treatment involving 

invasive procedures concerning the children is in the children's best interest and that 

there was a material and substantial change in their or Fletcher's circumstances since 

the divorce. Finally, Fletcher's brief incorrectly asserts that Elizabeth has failed to 

challenge the trial court's findings of fact that the modifications of Elizabeth's 

independent right to consent to psychiatric and psychological treatment of the 

children is in the children's best interest and that there was a material and substantial 

change in either their or Fletcher's circumstances since the divorce. 

Quite to the contrary, Elizabeth raised her objections to the trial court's 

extensive findings of fact and conclusions of law numerous times throughout her 

entire Original Brief, and clearly asserted that Fletcher's evidence is legally and 

factually insufficient to demonstrate that the changes granted were in the children's 

best interest and that there was a material and substantial change in circumstances. 

Moreover, if she had no objections to the trial court's findings, she would not have 

moved this Court to require that new, final findings and conclusions of law be issued 

since the ones the trial court issued, dated October 3, 2014, are called "Proposed 

Findings of Fact and Conclusions of Law." (To this date, Appellant is unsure 

3 
whether such Findings and Conclusions are final since they are merely "proposed.") 

In a case like the instant one where the appellee argues that the findings are 

binding on the appellate court since the appellant did not explain which specific fact 

findings or legal conclusions the appellant was challenging, the Court held that 

"a challenge to an unidentified finding of fact may be sufficient for review if it 

is included in the argument of the issue or point, of if after giving 

consideration to the nature of the case, the underlying applicable legal 

theories, and the findings of fact provided, the specific findings of fact which 

the appellant challenges can be fairly determined from the 

argument .... Accordingly, the finding is not binding on this court." 

Dunaway v. Dunaway, 2007 Tex. App. LEXIS 8950 *25; 2007 WL 3342020(Tex. 

App -Houston [14th Dist.] 2007, no pet.). 

In another similar case, Rangel v. Rangel, 2014 Tex. App. LEXIS 9402 *6; 

2014 WL 4364752(Tex. App - Austin 2014, no pet.), the Court concluded the 

appellants did not waive their issues based on inadequate briefing even though the 

appellants do not directly set forth particular fact findings or legal conclusions that 

they are challenging since, pursuant to Tex. R. App. P. 38.9, the Court is required to 

construe the appellants' brief liberally. See also, Howeth lnvs., Inc. v. City of 

Hedwig Vil!., 259 S.W. 3d 877, 888 (Tex. App - Houston [1'1 Dist.] 2008, pet. 

denied) ("we have ... reviewed the substance of all of their appellate arguments to 

determine, as best we can, which fact findings and legal conclusions the 

[appellants] have implicitly challenged for each appellate argument."); City of 

4 
Pasadena v. Gennedy, 125 S.W. 3d 687, 691 (Tex. App - Houston [1st Dist.] 2003, 

pet. denied) ("We construe the enforcing parties' challenges to be to the pertinent 

fact findings and legal conclusions supporting these aspects of the judgment."); 

Sterner v. Marathon Oil Co., 767 S.W. 2d 686, 690 (Tex. 1989) (" . .it is our practice 

to construe liberally points of error in order to obtain a just, fair and equitable 

adjudication of the rights of the litigants.") 

In the event that this Court prefers to have challenges to the specific fact 

findings and legal conclusions, Elizabeth objects to the following: FF 19-21, 32, 40, 

42-43, 56 (finding that the circumstances have materially and substantially 

changed), FF 19, 36, 45, 47, 50-52, 57-60, 63-64 (regarding the best interest of the 

children), and CL 3-5. 

The common theme of all the above mentioned fact findings and legal 

conclusions is that it is all about Fletcher; in other words, the only thing that matters 

is what is in the best interest of Fletcher, not of the children. (Note the Trial Court's 

proposed findings and conclusions are attached to Appellant's Original Brief at Tab 

2.) 

For the above reasons, this Court must find that Elizabeth has challenged the 

trial court's findings of fact and legal conclusions that the drastic reduction in child 

support, the modifications of Elizabeth's exclusive right to make educational 

5 
decisions concerning the children, and the modifications of Elizabeth's independent 

right to make health care decisions and mental health care decisions for the children, 

are in the children's best interest and that there was a material and substantial change 

in either their or Fletcher's circumstances since the divorce. 

Fletcher Has Failed to Produce Sufficient Evidence That the Drastic Reduction 

in Child Support is in the Children's Best Interest 

Fletcher's brief, at page 13, incorrectly asserts that the Family Code does not 

require that the modification of child support be in the children's best interest. In 

support of his argument, he cites Tex. Fam. Code §156.401. However, he is wrong. 

In fact, Tex. Fam. Code §156.402 specifically requires that a court may modify an 

existing child support order to substantially conform with the guidelines under 

Chapter 154 (as the District Court did in FF45), but only if it is in the "best interest of 

the child" and there has been a material and substantial change of circumstances. 

Tex. Fam. Code §156.402. The applicable statute does not say "the best interest of 

another person" or words of like import. The best indicator of the intent of the 

Legislature are the words used in the statute. The Trial Court was obligated to begin 

with the statutory language to be applied. In discharging that duty, there was no 

discretion. In re GE Co., 271 S.W.3d 681 (Tex. 2008.) 

The applicable test to modify support downward requires there be a "material 

change" which could include Fletcher, but the second step "best interest" is limited 

6 
to the children. 

There is no ambiguity in the language, and the burden is a conjunctive one. 

There is no difficulty in determining the Legislature's intent which is determined 

from the plain meaning of the statute. City of San Antonio v. City of Boerne, 111 

S.W.3d 22, 25 (Tex. 2003). The Trial Court strayed from the Legislature's directive, 

and this Court must review that action de nova. In re Forlenza, 140 S.W.3d 373, 

376, 47 Tex. Sup. Ct. J. 879 (Tex. 2004); Klumb v. Houston Mun. Emples. Pension 

Sys., 2015 Tex. LEXIS 266 (Tex. 2015). 

During the time Tex. Fam. Code § 14.06 (a) was in force, parties to a divorce 

could enter into enforceable contracts regarding the payment of child support. 

Courts and parties soon realized the pernicious effect of such agreements and how 

such agreements interfered with the ability of Courts to act in the best interest of 

children under their jurisdiction. Next came the cases recognizing contract 

enforcement but overriding that principle through the creation of an evolving 

common law. IBtimately, the Legislature passed §154.124 and §156.402 that 

allowed contracts regarding child support but that precluded enforcement as a 

contract. The trade-off to preserve the parties' expectations in entering into 

agreements far in excess of guidelines was to make a change be dependent on a 

showing that the change must be in the best interest of the child. This Legislative 

7 
hurdle is designed and intended to prevent just the shenanigans Fletcher would have 

this Court adopt. 

As stated in the Original Brief filed by Elizabeth, the finding that a drastic 

55% reduction in child support is in the best interest of the children is not supported 

by the evidence. Further, Fletcher was unable to answer the question yes or no as to 

whether it is in the best interest of the children to provide them with less support. 

(RR 88.) The record should allow this Court to find evidence that three years after 

$6,000 per month in child support was in the best interest of the children, now only 

$2,565 per month is in their best interest. It does not. 

It is undisputed that the child support order in the Agreed Final Divorce 

Decree, agreed to by Fletcher, went way beyond the guidelines, and the agreed-to 

amount of support was deemed to be in the best interest of the children by the 

parties. Following the divorce, the Family Code requires that any modification must 

be proved to be in the children's best interest. See, Rumscheidt v. Rumscheidt, 362 

S.W. 3d 661, 666 (Tex. App- Houston [14th Dist.] 2011, no pet.) where the Court, 

affirming there was no material change in circumstances, held that "[t]he best 

interest of the child is always the trial court's primary consideration in determining 

questions of child support". 

Moreover, in his brief, Fletcher disingenuously claims that Elizabeth should 

8 
be required to obtain her own employment. Yet at the time of their divorce, he 

clearly intended for her to be a stay at home mom to take care of the children, and the 

parties structured the divorce decree to reflect that decision. Now he is criticizing her 

for his own breach of their contract. This is another example of the only 

consideration that must be taken into account is what is best for him. 

There is no evidence in the record to support that a 55o/o reduction in child 

support would be in the best interest of the children. 

Fletcher Has Failed to Produce Sufficient Evidence That There Was a Material 

and Substantial Change in His or the Children's Circumstances Requiring the 

Drastic Reduction in Child Support 

Again, the Family Code requires that Fletcher produce legally sufficient 

evidence that the circumstances of a child or person affected by the order have 

materially or substantially changed since the order, and that the requested and 

ordered change be in the best interest of the children. Tex. Fam. Code §156.101 

(a)(l), 156.401 and 156.402. Fletcher's brief, at page 7, incorrectly asserts that the 

evidence supports a material and substantial change due to his alleged decline in 

income as a personal injury trial lawyer. 

During his testimony, Fletcher admits that he publicizes on his firm's website 

for his professional corporation, Trammell, P.C., that he has won big verdicts. (RR 

89.) The website states, in part, that "Fletch is one of the top trial lawyers in 

9 
America. In the past five years he has won over $1.7 billion in trial judgments 

against major pharmaceutical manufacturers, on top of hundreds of millions more in 

pre-trial settlements. His $1.2 billion jury verdict against Johnson & Johnson in 

2012 was the highest judgment of any kind in America that year." See copies of 

pages from his website attached hereto as Tab 1 of the Appendix. Presumably, the 

snapshot of Fletcher's salary decline over the last two or three years took place while 

he was an employee at a prior law firm; at this point in time, it appears that Fletcher 

presently owns his own law firm, Trammell, P .C., and is one of the top trial lawyers 

in America. 

In numerous cases, courts have found that they may take a parent's earning 

potential into account when determining the amount of child support the parent must 

pay. "The duty to support is not limited to a parent's ability to pay from current 

earnings, but extends to his or her financial ability to pay from any and all sources 

that might be available." In re Marriage of Lassmann, 2010 Tex. App. LEXIS 6982 

* 10; 2010 WL 3377773 (Tex. App - Corpus Christi 2010, no pet.) citing Pharo v. 

Trice, 711 S.W.2d 282, 284 (Tex. App.-Dallas 1986, no pet.) 

Based on the evidence in this case, the trial court abused its discretion in its 

judgment that a drastic reduction in child support is in the best interest of the 

children and there has been a material and substantial change of circumstances, and 

10 
in this regard, should be reversed. 

Fletcher Has Failed to Produce Sufficient Evidence That the Modifications Of 

Elizabeth's Rights to Make Educational, Health Care, and Mental Health Care 

Decisions for the Children Are In the Children's Best Interest and That a 

Material and Substantial Change in Circumstances Has Occurred 

Fletcher's testimony supporting his request to alter the agreed rights awarded 

to Elizabeth, when distilled to their essence, is simply that "I would like to have 

these rights" or "just because". During his testimony, Fletcher admits numerous 

times that he has no criticism of the way Elizabeth has handled the decisions she has 

made, namely, that he is not saying that Elizabeth has made bad decisions per se (RR 

71), that the children have all been at St. Mark's as long as they have gone to school 

and they like it (RR 56), he has no criticism of Elizabeth about any educational 

decision that she has made or can name any decision where he would have made a 

better decision (RR 99), that he has no criticism of Elizabeth about any medical, 

dental, surgical, psychiatric and psychological decision that she has made or can 

name any decision where he would have made a better decision (RR 99), that he has 

no issue with St. Mark's (RR 99), that his children are exemplary students (RR 99), 

that Elizabeth has consistently made good decisions (RR 100), that he ceded that 

decision-making power to Elizabeth at the time of the divorce (RR 99), that he is not 

here to criticize Elizabeth (RR 101), and that he believes that Elizabeth has the best 

interest of the children at heart (RR 103.) 

11 

e:
It is clear that since the children are thriving and doing well, and in the past, 

Fletcher had no input into these matters, then there is no reason to believe that it 

would be in the children's best interest to make any changes in these custodial 

arrangements now. Moreover, Elizabeth points out that the parties are unable to 

communicate other than possibly by email. She explains in her testimony: 

Q. But you have since 2011, you sent him an email saying, Hey. She is in 

soccer? 

A. No. Actually it's not right. Well, let me finish my sentence. Occasionally 

when he used to - he no longer comes up to the door to get the children, 

but there were times when we discussed things outside in the yard. 

Q. So you do have the ability when you want to --

A. WellQ. -- to visit with him about --

A. No. I don't. 

Q. Okay. 

A. Not anymore. We don't talk. 

[RR 116.] 

In a case like the instant one, the Court found that 

"the evidence in the record as to the parties' inability to reach shared decisions 

and Father's testimony as to his unwillingness to communicate other than by 

email supports the trial court's ruling that it would be in the best interest of the 

children for Mother to have final decision-making authority with respect to 

educational matters. " 

12 
In the Interest of CC J, 244 S.W. 3d 911, 924 (Tex. App- Dallas 2008, no pet.) 

Moreover, the law is clear in Texas that when a court modifies terms and 

conditions of an order concerning conservatorship, possession, and access 

concerning a child, "the record must contain evidence in support of the terms of the 

modification-a bare recitation in the court's order that such modification is in the 

children's 'best interest' is not enough."Moreno v. Perez, 363 S.W. 3d 725, 738 

(Tex. App - Houston [1st Dist.] 2011, no pet.) 

Clearly, the terms and conditions of conservatorship should not be modified 

in this case since there is insufficient evidence that the modifications would be in the 

best interest of the children and that the circumstances of the children or conservator 

have "materially and substantially changed" since the rendition of the order. Tex. 

Fam. Code §156.101 (a)(l). 

Fletcher's evidence in support of the desired changes was, in each instance, 

legally and factually insufficient. Accordingly, the Trial Court's Order in Suit to 

Modify Parent-Child Relationship, entered on June 30, 2014, in favor of Fletcher 

was an abuse of discretion. 

PRAYER 

Appellant Elizabeth M. Trammell prays that this Court grant all requested 

relief including, without limitation, that this Court reverse the Order in Suit to 

13 
Modify Parent-Child Relationship, render a judgment in favor of Elizabeth and deny 

all relief requested by Fletcher to modify the parent-child relationship. 

Elizabeth further prays that the Court grant her all whole, partial, general, 

specific, legal, equitable, statutory or other available relief. 

Respectfully submitted, 

ZUKOWSKI, BRESENHAN, SINEX & PETRY, 

L.L.P. 

Isl Maurice Bresenhan, Jr. 

MAURICE BRESENHAN, JR. 

State Bar No. 02959000 

CYNTHIA KEEN PERLMAN 

State Bar No. 11161700 

1177 West Loop South, Suite 1100 

Houston, Texas 77027 

(713) 965-99691(713) 963-9169 (Fax) 

CERTIFICATE OF SERVICE 

I hereby certify service of a true and correct copy of this Appellant's Reply 

Brief on April 15, 2015 as follows: 

Sallee S. Smythe 

800 Jackson Street 

Richmond, Texas 77469 

VIA EMAIL smyth.sallee@gmail.com 

14 

Isl Maurice Bresenhan, Jr. 
Tab 

1 

2 

3 

4 

5 

NO: 01-14-00629-CV 

INTHE 

FIRST COURT OF APPEALS OF TEXAS 

AT HOUSTON, TEXAS 

ELIZABETH M. TRAMMELL, 

Appellant 

v. 

FLETCHER V. TRAMMELL, SR. 

Appellee 

Appendix 

Document 

pages from firm website of Trammell, P.C. 

Texas Family Code§ 156. lOl(a)(l) 

Texas Family Code §156.401 

Texas Family Code § 156.402 

Texas Family Code §154.124 

15 
CoTABl 
Fletch Trammell, Top Trial Lawyer - Trammell PC 

Our Lawyers 

Fletch Trammell 

Fletch is one of the top trial 

lawyers in America. In the past 

five years he has won over $1. 7 

billion in trial judgments against 

major pharmaceutical 

manufacturers, on top of 

hundreds of millions more in 

pre-trial settlements. His $1.2 

billion jury verdict against 

Johnson & Johnson in 2012 was 

Our Lawyers 

the highest judgment of any kind in America that year. 

Page 1 of3 

In addition to representing individuals and their families against 

major international drug companies, Fletch has been retained by 

several State Attorneys General to prosecute those companies' 

violations of State fraud and consumer protection laws. Fletch's 

http://trammellpc.com/lawyers/ . 4/10/2015 
Fletch Trammell, Top Trial Lawyer - Trammell PC Page 2 of3 

trial victories on behalf of States are some of the highest judgments 

of their kind in the history of American jurisprudence. 

Fletch is involved in every aspect of Trammell PC's cases. Fletch 

knows that each client's case involves that client's one and only 

opportunity to be heard in court. Trammell PC makes that 

opportunity count. 

Fletch is consistently voted in as a Super Lawyer by his peers. He is 

licensed with the State Bars of Texas and New York and admitted to 

practice before multiple State and Federal Courts across the 

Country. 

Education and Admissions 

• University of Mississippi. EBA 1997 

South Texas College of Law, J.D. Magna Cum Laude, 2003 

National Moot Court Champion, 2003 

South Texas Law Review 

Order of the Barristers 

Dean's List 

· Multiple American Jurisprudence Awards 

• Langdell Scholar 

Professional Affiliations 

State Bar of Texas 

http://trammellpc.com/lawyers/ 4/10/2015 
Fletch Trammell, Top Trial Lawyer - Trammell PC Page 3 of3 

• New York State Bar 

American Association for Justice 

http://trammejlpc.com/lawyers/ 4/10/2015 
TAB2 
§ 156.006 

Note 9 

cy concerning former wife's custody of 

child was a finding only necessary in a 

terriporary order, and order contemplated 

a further hearing after psychological counseling had been obtained. In re Blevins 

(App. 6 Dist. 2004) 2004 WL 911317, Unreported, rehearing overruled, review denied. Child Custody *" 902 

Temporary orders entered on mother's 

motion concerning child's residency, visitation rights and allegations of sexual 

abuse by step-father in proceeding on bioPARENT-CHILD RELATIONSHIP 

Title s 

logical father's motion to modify visitatiori 

conservatorship, and child support as t~ 

out-of-wedlock child were not subject to 

interlocutory appeal; motion to modify 

parent-child relationship was suit affecting 

parent-child relationship, and statute provided that temporary orders entered in 

suit affecting parent-child relationship 

were not subject to interlocutory appeal. 

Pina v. Shaw (App. 1 Dist. 2004) 2004 WL 

306096, Unreported. Children Out-ofwedlock = 20.11 

SUBCHAPTER B. MODIFICATION OF CONSERVATORSHIP, 

POSSESSION AND ACCESS, OR DETERMINATION OF 

RESIDENCE 

§ 156.101. Grounds for Modification of Order Establishing Conservatorship or Possession and Access 

(a) The court may modify an order that provides for the appointment 

of a conservator of a child, that provides the terms and conditions of 

conservatorship, or that provides for the possession of or access to a 

child if modification would be in the best interest of the child and: 

(1) the circumstances of the child, a conservator, or other party 

affected by the order have materially and substantially changed since 

the earlier of: 

(A) the date of the rendition of the orde,r; or 

(B) the date of the signing of a mediated or collaborative law 

settlement agreement on which the order is based; 

(2) the child is at least 12 years of age and has expressed to the 

court in chambers as provided by Section 153.009 the name of the 

person who is the child's preference to have the exclusive right to 

designate the primary residence of the child; or 

(3) the conservator who has the exclusive right to designate the 

primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six 

months. 

(b) Subsection (a)(3) does not apply to a conservator who has the 

exclusive right to designate the primary residence of the child and who 

has temporarily relinquished the primary care and possession of the 

child to another person during the conservator's military deployment, 

378 

Added b 

Acts 19S 

1390, § 

. 2001; A 

Leg., ch. 

Sept. 1, 

Acts 19 

subsec. (< 

.provision 

deleted f, 

redesigna 

added su! 

74th Leg. 

"the re 

aging co1 

the welfa1 

Acts 19 

sec. (b), 

. substitute 

Section 

· 1390 pro> 

''The cl 

102.003, 

107.014(a 

156.006(b 

. by this A< 

the paren 

after the 

this Act. 

date of th 

effect on 

the forme 

that purpc 

Acts 201 

the sectior 

"(a) Th< 

designates 

a child of' 

"(1) the 

managing 

vator, or c 

have mate 

since the C 

and 

"(2) the 

· managing 

improvem< 
visitation, 

?Ort as to 

subject to 

to modify 

t affecting 

:atute pro-

!ntered in 

!lationship 

ry appeal. 

I 2004 WL 

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MODIFICATION 

Ch. 156 

§ 156.101 

military mobilization, or temporary military duty, as those terms are 

defined by Section 153.701. 

Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995. Amended by 

Acts 1995, 74th Leg., ch. 751, § 47, eff. Sept. 1, 1995; Acts 1999, 76th Leg., ch. 

1390, § 16, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1289, § 5, eff. Sept. 1, 

2001; Acts 2003, 78th Leg., ch. 1036, § 19, eff. Sept. 1, 2003; Acts 2009, 8lst 

Leg., ch. 727, § 3, eff. Sept. 1, 2009; Acts 2009, 81st Leg., ch. 1113, § 28, eff. 

Sept. 1, 2009; Acts 2009, 81st Leg., ch. 1118, § 3, eff. Sept. 1, 2009. 

Historical and Statutory Notes 

Acts 1995, 74th Leg., ch. 751 designated 

subsec. (a) and therein, in the introductory 

provision, inserted "of a child of any age"; 

deleted former subd. (2); as designated, 

redesignated subsec. (a)(3) as (a)(2); and 

added subsec. (b). As added by Acts 1995, 

74th Leg., ch. 20, former subd. (2) read: 

"the retention of the present sole managing conservator would be injurious to 

the welfare of the child; and" 

Acts 1999, 16th Leg., ch. 1390, in subsec. (b), in the introductory paragraph, 

substituted "10" for "12". 

Section 51(c) of Acts 1999, 76th., ch. 

1390 provides: 

''The changes in law made to Sections 

102.003, 105.00l(b) and (d), 107.0135, 

107.014(a), 107.015, 153.008, 153.434, 

156.006(b), and 156.lOJ(b), Family Code, 

by this Act apply only to a suit affecting 

the parent-child relationship filed on or 

after the effective date [Sept. l, 1999] of 

this Act. A suit filed before the effective 

date of this Act is governed by the law in 

effect on the date the suit was filed, and 

the former law is continued in effect for 

that purpose.'' 

Acts 2001, 77th Leg., ch. 1289 rewrote 

the Section, which formerly read: 

"(a) The court may modify an order that 

designates a sole managing conservator of 

a child of any age if: 

"(1) the circumstances of the child, sole 

managing conservator, possessory conservator, or other party affected by the order 

have materially and substantially changed 

since the date of the rendition of the order; 

and 

"(b) The court may modify an order that 

designates a sole managing conservator of 

a child 10 years of age or older if: 

"(1) the child has filed with the court in 

writing the name of the person who is the 

child's choice for managing conservator; 

. and 

"(2) the court finds that the appointment of the named person is in the best 

interest of the child." 

Acts 2003, 78th Leg., ch. 1036 in the 

introductory paragraph deleted ''or portion of a decree" following "modify and 

order"; rewrote subsec. (1); in subsec. 

(2), substituted "person" for "conservator" 

and "designate" for "determine"; and in 

subsec. (3) substituted "designate" for "establish". The former subsec. (1) read: 

"the circumstances of the child, a conservator, or other party affected by the 

order have materially and substantially 

changed since the date of the rendition of 

the order;" 

Section 23(g) of Acts 2003, 78th Leg., 

ch. I 036 provides: 

"(g) The changes in law made by this 

Act to Sections 156.101, 156.102(a) and 

(b), and 156.401(a), Family Code, apply 

only to an action to modify an order in a 

suit affecting the parent-child relationship 

pending on the effective date [Sept. 1, 

2003] of this Act or filed on or after that 

date." 

Acts 2009, Slst Leg., ch. 727 inserted 

subsec. (a) designator at the beginning of 

the section; and added subsec. (b). 

Section 7 of Acts 2009, 8 lst Leg., ch. 

727 provides: 

"(2) the appointment of the new sole 

managing conservator would be a positive 

improvement for the child. 

"The changes in law made by this Act 

apply to a suit affecting the parent-child 

relationship that is pending in a trial court 

379 
TAB3 
rG 

ch. 

§ 156.401 

SUBCHAPTER D. MODIFICATION OF POSSESSION 

OF OR ACCESS TO CHILD [REPEALED] 

156.301 to 156.304. Repealed by Acts 2001, 77th Leg., ch. 1289, 

§ 12(2), eff. Sept. 1, 2001 

Historical and Statutory Notes 'I 

Repealed§§ 156.301 to 156.304, provid- V.T.C.A., Family Code §§ 14.033(0), 

;ng for the modification of possession of or 14.08(c)(3). 

access to a child, were derived from: Acts 1995, 74th Leg., ch. 20, § 1. 

Acts 1983, 68th Leg., p. 2354, ch. 424, Acts 1995, 74th Leg., ch. 602, § 1. 

§ 9. Acts 1999, 76th Leg., ch. 62, § 6.21. 

Acts 1987, 70th Leg., ch. 739, § 1. Acts 1999, 76th Leg., ch. 178, § 10. 

Acts 1989, 71stLeg., ch. 617, § 4. Acts 1999, 76th Leg., ch. 1390, 

Acts 1993, 73rd Leg., ch. 766, § 10. § 17(a). 

SUBCHAPTER E. MODIFICATION OF CHILD SUPPORT 

156.401. Grounds for Modification of Child Support 

(a) Except as provided by Subsection (a-1), (a-2), or (b), the court 

may modify an order that provides for the support of a child, including 

·an order for health care coverage under Section 154.182, if: 

(1) the circumstances of the child or a person affected by the order 

have materially and substantially changed since the earlier of: 

(A) the date of the order's rendition; or 

(B) the date of the signing of a mediated or collaborative law 

settlement agreement on which the order is based; or 

(2) it has been three years since the order was rendered or last 1 

modified and the monthly amount of the child support award under 

the order differs by either 20 percent or $100 from the amount that 

would be awarded in accordance with the child support guidelines. 

(a-1) If the parties agree to an order under which the amount of child 

support differs from the amount that would be awarded in accordance 

with the child support guidelines, the court may modify the order only if 

the circumstances of the child or a person affected by the order have 

materially and substantially changed since the date of the order's 

· rendition. 

(a-2) A court or administrative order for child support in a Title IV-D 

case may be modified at any time, and without a showing of material 

and substantial change in the circumstances of the child or a person 

affected by the order, to provide for medical support of the child if the 

order does not provide health care coverage as required under Section 

154.182. 

437 

,_:;-
§ 156.401 PARENT-CHILD RELATIONSHIP 

Title 

(b) A support order may be modified with regard to the amount 

support ordered only as to obligations accruing after the earlier 

( 1) the date of service of citation; or 

(2) an appearance in the suit to modify. 

(c) An order of joint conservatorship, in and of itself, does 

constitute grounds for modifying a support order. 

(d) Release of a child support obligor from incarceration is a material :· 

and substantial change in circumstances for purposes of this section if .·, ' 

the obligor' s child support obligation was abated, reduced, or suspended · 

during the period of the obligor' s incarceration. 

Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995. Amended by ;C:i 

Acts 1997, 75th Leg., ch. 911, § 16, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch.·· .. ·. 

43, § 1, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1036, § 21, eff. Sept. 1, 

2003; Acts 2005, 79th Leg., ch. 916, § 19, eff. June 18, 2005; Acts 2007, 80th 

Leg., ch. 363, § 6, eff. Sept. 1, 2007; Acts 2007, 80th Leg., ch. 972, § 15, eff. 

Sept. 1, 2007; Acts 2011, 82nd Leg., ch. 508 (H.B. 1674), § 3, eff. Sept. 1, · 

2011; Acts 2013, 83rd Leg., ch. 742 (S.B. 355), § 5, eff. Sept. 1, 2013, 

Historical and Statutory Notes 

Acts 1997, 75th Leg., ch. 911, in subsec. Acts 2003, 78th Leg., ch. 1036 rewrote 

(a), designated subd. (1) and added subd. subsec. (a)(l) which prior thereto read:. 

(2). "(1) the circumstances of the child or a · 

Section 98(b) and (c) of Acts 1997, 75th person affected by the order have materiLeg., ch. 911 provides: ally and substantially changed since the 

"(b) The change in law made by this Act date of the order's rendition; or" 

does not affect a proceeding under the Section 23(g) of Acts 2003, 78th Leg., 

Family Code pending on the effective date ch. 1036 provides: 

[Sept. 1, 1997] of this Act. A proceeding "(g) The changes in law made by this 

pending on the effective date of this Act is Act to Sections 156.101, 156.102(a) and 

governed by the law in effect at the time (b), and 156.401(a), Family Code, apply 

the proceeding was commenced, and the only to an action to modify an order in a, 

former law is continued in effect for that suit affecting the parent-child relationship 

purpose. pending on the effective date [Sept. 1, 

"(c) The enactment of this Act does not 2003] of this Act or filed on or after that 

by itself constitute a material and substan~ date." 

tial change of circumstances sufficient to Section S(c) of Acts 2003, 78th Leg., ch. 

warrant modification of a court order or 1262 provides: 

portion of a decree that provides for the "(c) The change in law made by this Act · support of or possession of or access to a 1 d 

child entered before the effective date of does not by itself constitute a materia an substantial change of circumstances under this Act.'' Section 156.401, Family Code, sufficient to 

Acts 1999, 76th Leg., ch. 43, added sub- warrant modification of a court order or a 

sec. (d). portion of a decree that provides for the 

Section 2 of Acts 1999, 76th Leg., ch. 43 support of a child rendered before th~ 

provides: effective date [Sept. I, 2003] of this Act. 

"This Act takes effect September 1, Acts 2005, 79th Leg., ch. 916 subsec. (a), 

1999, and applies to a child support order in the introductory paragraph, insert~d entered before, on, or after that date." "(a-1) or "; added subsec. (a-1); and m 

438 

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Con 
TAB4 
§ 156.401 

Note 50 

probative and substantive evidence to support trial court's ruling, then there is no 

abuse of discretion. Tucker v. Tucker 

(App. 4 Dist. 1995) 908 S.W.2d 530, rehearing denied, writ denied. Child Support<= 555 

Where divorced wife on appeal by divorced husband from order increasing 

§ 156.402. Effect of Guidelines 

PARENT-CHILD RELATIONSHJp 

Title 5 

amount of child support payments failed 

to demonstrate that current income of divorced husband was greater than it was 

when amount of child support was I~st 

fixed, Court of Civil Appeals would assume 

that it remained unchanged. Willis v. Willis (Civ.App. 1968) 425 S.W.2d 696. Child 

Support<= 555 

(a) The court may consider the child support guidelines for single and 

multiple families under Chapter 154 to determine whether there has 

been a material or substantial change of circumstances under this 

chapter that warrants a modification of an existing child support order 

if the modification is in the best interest of the child. 

(b) If the amount of support contained in the order does not substantially conform with the guidelines for single and multiple families under 

Chapter 154, the court may modify the order to substantially conform 

with the guidelines if the modification is in the best interest of the child. 

A court may consider other relevant evidence in addition to the factors 

listed in the guidelines. 

Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995. Amended by 

Acts 1999, 76th Leg., ch. 62, § 6.22, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 

556, § 12, eff. Sept. 1, 1999. 

Historical and Statutory Notes 

Acts 1999, 76th Leg., ch. 62, in subsec. 

(a), substituted "154" for "153". 

Acts 1999, 76th Leg., ch. 556, in subsec. 

(a), substituted "for single and multiple 

families under Chapter 154" for "in Chapter 153"; in subsec. (b), in the first sentence, inserted "for single and multiple 

families under Chapter 154". 

Prior Laws: 

Acts 1989, 71st Leg., ch. 617, § 6. 

Acts 1993, 73rd Leg., ch. 798, § 6. 

V.T.C.A., Family Code§ 14.056(a), (b). 

Texas Annotated Code Series References 

Child support guidelines, 

Additional factors for court to consider, Sampson & Tindall's Texas Family Code, 

Family§ 154.123. 

Agreement concerning support, 

§ 154.124. Sampson & Tindall' s Texas Family Code, Family 

Application of guidelines rebuttably presumed in best interest of child, Sampson & 

Tindall's Texas Family Code, Family§ 154.122. 

Application of guidelines to additional net resources, Sampson & Tindall' s Texas 

Family Code, Family§ 154.126. 

Application of guidelines to children of obligors receiving social security, Sampson 

& Tindall's Texas Family Code, Family§ 154.133. 

Application of guidelines to net resources, Sampson & Tindall's Texas Family Code, 

Family§ 154.125. 

478 

~ ;:. 

MODIJF 

Ch. 156 

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obliCHILD SUPPORT 

Cb. !54 

o-ations; father 0V11ed some undetermined 

~mount in child support, and calculation 

of father's net resources 1~ as only one step 

in assessing chi1d support. Marquez v. 

Moncada (App. 1 Dist. 2012) 388 S.W.3d 

736, rehearing overruled. Children Outof-wedlock <1:=o 73 

The trial court did not abuse its discretion w·hen it failed to consider the value of 

father's personal use of his company's 

truck and the $1,000 monthly health insurance premium paid on father's behalf by 

his company as "adilltional factors" sup· 

porting departure from the child support 

guidelines on bis motion to modify his 

support obligation; the record did not 

show the dollar amount of the value of 

father's use of the company vehicle he 

received, or evidence as to what portion of 

the health insurance premium payment 

was attributable to insurance for father, 

his wife, or stepson. In re P.C.S. (App. 5 

Dist. 2010) 320 S.W.3d 525, review denied. Child Support e- 357 

Evidence was legally insufficient to support default judgment modifying child support; despite evidence that amount vvas 

below statutory child support guidelines, 

there v.ras no evidence regarding best in· 

terests of children or any factors the court 

n1ay consider in determining that applica-

§ 154.124 

tion of child support gujdelines vvould be 

unjust or inappropriate under the circumstances. Agraz v. Carnley (App. 5 Dist. 

2004) 143 S.W.3d 547. Child Support e342 

Evidence vvas insufficient to support 

finding that former husband's earnings 

would be $970 per month one year after 

child support hearing which determined 

such figure; former husband's earning potential could not be determined based on 

his earnings in prior years, given his erratic employment history in the two years 

preceding hearing. Starck v. Nelson (App. 

13 Dist. 1994) 878 S.W.2d 302. Child 

Support <1:=o 339(3) 

Evidence supported trial court variance 

from the child support guidelines and order which did not require \Vife to pay 

husband child support, even though husband had primary physical custody of the 

parties son; husband manipulated son so 

that son did not want to see wife anymore, 

wife only made $8.50 per hour and was on 

probationary status at her place of employment, v..1ife provided health insurance for 

child, and wife had special education and 

health needs. Trueheart v. Trueheart 

(App. 14 Dist. 2003) 2003 WL 22176626, 

Unreported. Child Support <1:=o 60; Child 

Support""' 148 

§ 154.124. Agreement Concerning Support 

(a) To promote the amicable settlement of disputes between the parties to a suit, the parties may enter into a written agreement containing 

provisions for support of the child and for modification of the agreement, including variations from the child support guidelines provided by 

Subchapter C.' 

(b) If the court finds that the agreement is in the child's best interest, 

the court shall render an order in accordance with the agreement. 

(c) Terms of the agreement pertaining to child support in the order 

may be enforced by all remedies available for enforcement of a judgment, including contempt, but are not enforceable as a contract. 

(d) If the court finds the agreement is not in the child's best interest, 

the court may request the parties to submit a revised agreement or the 

court may render an order for the support of the child. 

Added by Acts 1995, 74th Leg., ch. 20, § !, eff. April 20, 1995. Amended by 

2003, 78th Leg., ch. 480, § !, eff. Sept. !, 2003. 

153