REVERSE and RENDER: Opinion issued February 6, 2013.

In The

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No. 05-09-00121-CV

IN THE INTEREST OF C.H.C., A CHILD

On Appeal from the 302nd judicial District Court

1)allas County, Texas

Trial Court Cause No. I)F-9X-15998

OPINION ON MOTION FOR REHEARING

Bef’ore Justices O’Neill. Lang-Miers, and Richter 1

Opinion By Justice O’Neill

Before this Court is appellant’s motion for rehearing in which she disagrees with this Court’s

determination that the expiration of her court-ordered community supervision renders the contempt

order moot. 2 She also encourages this Court, despite well-settled case law, to consider the merits

of her contempt claim because of the “unique circumstances and peculiar procedural history of this

case.” We deny appellant’s motion. On our own motion, we withdraw our July 16, 2012 opinion

and vacate the judgment of that date. This is now the opinion of the Court.

In this appeal, Mother challenges the trial court’s December 10, 2008 modification order in

which the court reduced Father’s child support obligation and modified his summer visitation.

The Honorable Martin E. Richter, Retired Justice, sitting by assignment.

2

In our original opinion, we concluded we did not have jurisdiction to review her contempt order by a direct appeal, and in the alternative,

that because the contempt order was no longer in effect, it was moot.
Mother also appeals a contempt order issued by the trial court against her. We affirm in part and

reverse and render in part. the trial courts l)eccmber 10. 2008 order. We dismiss for want of

jurisdiction the trial courts December 3. 2008 contempt order.

Because this dispute has a long history, which is we1ldocumenied and wellknown to the

parties. a factual background is unnecessary. We shall only include those facts relevant to

disposition of the issues raised on appeal. Thx. R. APP. P. 47.1.

Modification of 2004 SAPCR Order

In September of 1998, Mother filed an original petition for voluntary paternity of C.H.C.

Through genetic testing, Father was determined to be C.H.C. ‘s biological father. Mother and Father

have never been married. Since the determination of Father’s paternity, the parties have engaged in

hundreds of filings in the court regarding issues of custody, possession, and enforcement of the trial

court’s orders.

in 2007, Mother filed a petition to modify the 2004 SAPCR order and a motion br

enforcement of the order citing numerous violations by Father, For various reasons, the hearings on

the motions were continued on more than one occasion. In the interim, Father filed his own petition

to modify and motion for enforcement against Mother. The trial court held a hearing on September

9, 2008 in which it heard testimony from both parties.

Father argued his $1200 a month in child support should be reduced because his income since

2004 had “substantially” decreased. He owned an engineering survey firm, and business was good

until the housing crash and developers stopped building as many subdivisions. He testified he was

living off savings and trying to branch off into the counter—top business. The trial court determined

a material and substantial change had occurred since 2004 and reduced his payment to $966.84.

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In her first issue. Mother areues the trial court abused its discretion in lThdini a material and

substantial change in Father’s circumstances because the evidence is insufficient to support the

modification. Family code section 1 56401 authorizes modification of a child support order if the

circumstances ot the child or a person affected by the order have materially and substantially changed

since the date the order was rendered. Ti:x. FAM.CODE ANN. §* 156.401(a) (West 2008). To

determine whether a child support modification is warranted, the court must compare the financial

circumstances of the affected party at the time the order was entered with his circumstances at the

time the modification is sought. Hammond c. Hammond. 898 S.W.2d 406, 4()7—08 (Tex. App.—Fort

Worth 1995, no writ). Without both sets of data, the court has nothing to compare and cannot

determine whether a material and substantial change has occurred. London v. London, 94 S.W.3d

139. 145 (Tex. App.—Houston 114th Dist.j 2002, pet. denied). The person seeking the modification

has the burden of establishing a material and substantial change. Hodson v. Keiser, 81 S.W.3d 363,

368 (Tex. App.—El Paso 2002, no pet.).

On finding the requisite change, a trial court is given broad discretion in whether to modify

support and the amount of support required. Nordtro,n v. Nordstrom, 965 S.W.2d 575, 578 (Tex.

App.—Houston [1st Dist.] 1997, pet. denied). Absent a clear abuse of discretion, the trial court’s

order will not be disturbed on appeal. Id. at 577—78,

Under an abuse of discretion standard, legal and factual sufficiency are not independent

grounds of error, but rather are relevant factors in assessing whether the trial court abused its

discretion. In re c.N.G. V, 07—05—0058—CV, 2006 WL 1587134, at *2 (Tex. App.—Amarillo June

9. 2006, no pet.) (mem. op., not designated for publication). Abuse of discretion does not exist as

long as there is some evidence of a substantive and probative character to support the decision. Id.

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Findings of fact entered in a case tried to the court are of the same force and dignity as a jury’s

verdict upon special issues. Baker v. Baker. 7 I ‘) S.W.2d 672, 674 (Tex. App.—Fort Worlh I 986. no

writ). The trial court’s findings of fact are reviewable for factual and legal sufficiency ofthe evidence

by the same slamlar(ls as applied in reviewing the legal or factual sufficiency of the evidence

supporting a jury’s answer to a special issue. Id.

l3ased on the record before us. Father failed to carry his burden of establishing a material and

substantial change to support modification ofthe 2004 SAPCR order. In his motion to modify, Father

failed to plead any facts identifying specific circumstances requiring a modification. Moreover, at

the hearing, Father testified generally that when the trial court set child support in 2004, “business

was good.” “the economy was good and balanced and the engineering survey firm was doing well.”

I-Ic further stated, “1 was making a good amount of money, and the Judge set it at the maximum

amount.” However, the record does not contain any evidence of how much money Father was making

in 2004 or the evidence upon which the trial court calculated the $1200 support payment.

Moreover, Father provided only general estimates of his income in 2008 and that he was

making substantially less. He testified, 1 don’t know, really, what the actual individual income is for

2008.” When asked by his attorney to provide a ballpark figure, he said, “probablyjust maybe $3000

a month.” He later guessed he averaged “maybe 4,000 or $5,000” in the first six months of 2008.

The oniy document entered into evidence was an unsigned, unfiled copy of Father’s 2007

income tax return. This showed his adjusted gross income as $77, 382. The trial court apparently

used this figure to recalculate and reduce Father’s child support payment.

Without more specific testimony from Father explaining the “good amount of money” he was

making at the time of the 2004 order, we are unable to make the requisite comparison to determine

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whether there was a substantial and material chanue in Father’s circumstances. See liwninond. 89$

S.W.2d at 408 (holding evidence insufficient to support material and substantial change in financial

circumstances warranting modification of child support when father testified he had a “high paying

job at the time of the divorce); State v. ilernandez, 802 S.W.2d 894, 896 (Tex. App.—San Antonio

199 I no writ) (without testimony establishing how much more money father was making at the time

of divorce, there was no more than a mere scintilla of evidence that circumstances had substantially

and materially changed); Baker, 719 S.W.2d at 677 (hare assertion by mother that she was making

less money, without some testimony as to how much she was making, is no more than a scintilla of

evidence that her circumstances had changed). As such, we agree with Mother that the evidence is

legally insufficient to support the trial court’s finding and conclusion that a material and substantial

change in Father’s circumstances has occurred since the 2004 order. By reducing Father’s child

support obligations, the trial court abused its discretion. We sustain Mother’s first issue.

We now turn to whether the record supports a change in circumstances for the modification

of Father’s summer visitation schedule. Texas Family Code section 156.101 specifies the exclusive

grounds upon which the trial court may modify an order that provides for the possession of or access

to a child. TEx. FAM. CODE ANN. 156.101 (West Supp.20 11). The section provides, in relevant part,

that the court may modify possession of or access to the child when it is in the child’s best interest

and 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. Id. Thus, like section 156.401,

the requisite showing of materially and substantially changed circumstances under section 156.101

requires the trial court to examine and compare the circumstances of the parents and minor child at

the time of the initial order with the circumstances existing at the time modification is sought. In re

W.C.B., 337 S.W.3d 510, 513 (Tex. App.—Dallas 2011, no pet.); see also In reA.L.E., 279 S.W.3d

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424, 428 (Tex, App—I louston I 14th Dist. I 2009, no pet.) (noting that as a threshold mailer, the

moving party must show a material and substantial change in circumstance: otherwise, the petition

must be denied).

1-lere, the trial court failed to make any explicit findings of fact or conclusions of law regarding

a material and substantial change in circumstances warranting modification of summer possession.

Rather, the court only found and concluded that modification was in C.H.C.’s best interest.

An omitted finding will be implied only if it is supported by evidence. TEX. R. Civ. P. 299

(noting that “omitted unrequested elements, when supported by evidence, will he supplied by

presumption in support ofthejudgment): McGalliard v. Kuhimunn. 722 S.W.2d694, 696 (Tex. 1986)

(unchallenged findings of fact are not binding on this Court if the contrary is established as a matter

of law or there is no evidence to support the finding). Based on this record, we cannot conclude the

omitted finding is supported by evidence.

During the hearing, Father testified he wanted to modify the 2004 SAPCR order to gain more

time with C.H.C. in the summer because “when the orders were typed up it took away—it took away

a lot of my time for the summer.” The 2004 order provided him with two weeks in June, two weeks

in July, and a few days in August. He asked the court for a full thirty-day election and the first, third,

and fifth weekends of each month. When asked how the change would be better for his son, he said

“it’s just to give me more time for—I mean, the summertime is the best time to go with your—with a

child, I think, especially with what we do; the camping, the fishing, all the outdoor activities we do or

try to do. It would just give me—us more time together.” He also said he wanted more time because

he felt the more time Mother had him, the more likely she was to get in-between his relationship with

C.H.C. and “delete it somehow.”

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Father’s testimony does not establish any chance in circumstances Irom the time of the 2004

order to the requested modification. While a child growing older can, under certain circumstances,

warrant a change in modilication, courts have usually considered age when the child was an infant or

toddler at the time ot the original order and has aged several years at the time of modihcation. See,

e.g., home i. IlarweIl. 533 S.W.2d 450, 452 (Tex. Civ. App.—Austin 1976, writ ref’d n.r.c.)

(concluding trial court properly found a material and substantial change in circumstance to modify

l)ossession when child was seventeen months old at time ol divorce and over three years old when

motion to modify was filed); see also In re T.W.M.B.. 0496—00667—CV. 1998 WL 236320, at *2

(Tex. App.—San Antonio May 13, 1998, no pet.) (noting increase of child’s age from seventeen

months to five years old was a material and substantial change) (not designated for publication).

C.ll.C. was not an infant in 2004. Rather. he was 5 years old and ten years old at the time of the

modification order. Moreover, Father made no argument that his desire to spend more time with

C.H.C. was based on C.H.C.’s ability to now do more lake or camping activities that the two could not

do in 2004 because C.H.C. was younger. See, e.g., Zei/nan v. Michels, 212 S.W.3d 582, 593 (Tex.

App.—Austin 2006, pet. denied) (noting increase in age alone is not a changed circumstance to justify

modification unless changed needs are shown).

The record is likewise void of any other evidence showing a change from 2004 to 2008

regarding Father’s ability to spend time during the summer enjoying outdoor activities with C.FI.C.

Thus, his desire to spent more time with C.H.C. is not a material and substantial change in

circumstances. To conclude otherwise would allow any non-custodial parent, whose desire is often

to spend more time with his or her child, to easily clear the material and substantial change hurdle of

section 156.101. This goes against the purpose of the “significant hurdles” Texas law has imposed

before a possession order maybe modified. See Bates v. Tesar, 81 S.W.3d 411, 426 (Tex. App.—E1

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Piso 2002. no pet.) (“1 listorically, Texas law has tried to ensure stability and continuity for children

by imposing significant hurdles to modilication of managing conservatorship. ). Thus, we conclude

the evidence is legally insufficient to support an implied finding of a substantial and material change

in circumstances. Accordingly, the trial court abused its discretion by modifying the 2004 SAPCR

order to increase Father’s summer possession.

In reaching this conclusion, we need not address Mother’s argument that the same evidence

is insufficient to support the trial court’s finding and conclusion that increasing Father’s summer

possession is in C,H.C.’s best interest. We sustain Mother’s second issue.

Contempt Order

In her final issue, Mother challenges the trial court’s December 4, 2()08 contempt order because

she claims it is beyond the trial court’s authority and is void. The trial court found Mother in contempt

for two separate instances in which she did not give Father possession of C.H.C. in accordance with

the 2004 SAPCR order. The court ordered her to pay $250.0() for each separate violation and

sentenced her to confinement in the Dallas County jail for ninety days for each separate violation. Her

commitment was suspended, and she was placed on community supervision for thirty-six months.

Mother acknowledges that contempt orders generally are subject to review by writ of habeas

corpus or mandamus, rather than by direct appeal. See IIerJè1d v. Herfe1d, 285 S.W.3d 122, 132

(Tex. App.—Dallas 2009, no pet.); Tracy v. Tracy, 219 S.W.3d 527, 530 (Tex. App.—Dallas 2007,

no pet.). Nonetheless, she argues the order combines elements of civil and criminal contempt, and the

evidence is insufficient to establish beyond a reasonable doubt she committed a willful and intentional

violation ofthe order. We are unpersuaded by Mother’s arguments to ignore the well-established legal

principal that a court of appeals lacks jurisdiction to review a contempt order on direct appeal.

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Herfè1d, 285 SW3d at 132; Tracy, 219 SW3d at 527. Accordingly, we dismiss for want of

jurisdiction her appeal of the December 4, 2008 contempt order,

Conclusion

The trial court’s December 10, 2008 order is reversed and rendered to the extent it(1) modified

and reduced Father’s child support payments from $1 20000 to $96684 and (23 modified and increased

Father’s summer possession. In all other respects, the order is affirmed. We dismiss for want of

jurisdiction Mother’s appeal of the December 4, 2008 contempt rder,j

4i’CHAEL /‘NEILL

JUSTICE ///

09012 1FP05

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JUDGMENT

IN THE iNTEREST OF C.WC., A CHILD Appeal from the 302 Judicial District

Court of Dallas County, Texas, (Tr,Ct.No.

No. 05-09M012lCV DF9815998).

Opinion delivered by Justice O’Neill,

Justices LangMiers and Richter,

participating.

Based on the Court’s opinion of this date, we WITHDRAW our July 16, 2012 opinion and

VACATE the July 16, 2012 judgment.

This is now the judgment of the Court.

The trial court’s December 10, 2008 order is REVERSED and RENDERED to the extent

it (1) modified and reduced Kyle Corey’s child support payments from $1200.00 to $966.84 and (2)

modified and increased his summer possession. In all other respects, the order is AFFIR1IED.

Christina Hawkins’ appeal of the trial court’s December 4, 2008 contempt order is

DISMISSED for want ofjurisdiction.

Judgment entered February 6, 2013.

/

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JUSTICE