John Allen Lowe v. Christie Lee (Lowe) Roberts ( 2012 )

Affirmed and Memorandum Opinion filed January 10, 2012.
In The
Fourteenth Court of Appeals
NO. 14-10-01191-CV
JOHN ALLEN LOWE, Appellant
V.
CHRISTIE LEE (LOWE) ROBERTS, Appellee
On Appeal from the 308th District Court
Harris County, Texas
Trial Court Cause No. 1995-20580
MEMORANDUM OPINION
John Allen Lowe appeals from the trial court’s order modifying the parent-child
relationship, which awarded Christie Lee (Lowe) Roberts $3,000 in child support for part
of the time that their 18-year-old daughter lived with Roberts and attended high school.
In a single issue, Lowe argues that the trial court lacked jurisdiction to award child
support. We affirm.
BACKGROUND
The facts are not disputed. The trial court signed an agreed order to modify the
parent-child relationship in 2008 designating Lowe and Roberts as joint managing
conservators. The court ordered that Lowe had the exclusive right to establish the child’s
primary residence and receive payments for support of the child, among other exclusive
rights. Child support payments would have continued until the end of the month in which
the child graduated high school.
But when the child turned 18 years old in September 2009, she moved out of
Lowe’s home and moved in with Roberts. Roberts petitioned the trial court to modify the
parent-child relationship to award her certain exclusive rights, including the right to
receive support for the child. The parties agreed at a temporary hearing that Lowe’s right
to receive child support should terminate, and the case went to trial in July 2010. At trial,
Roberts abandoned all claims except her claim for child support. The court awarded
Roberts $3,000 for child support for the months of January through June 2010 — when
the child was living with Roberts and attending high school. Lowe appealed.
ANALYSIS
Lowe contends that the trial court lacked jurisdiction to modify the parent-child
relationship because the ground for modification came into existence after the child’s
18th birthday. In particular, Lowe argues that Roberts cannot receive child support
because “the conservatorship right to receive child support is a pre-requisite to obtaining
child support,” and Roberts did not possess this conservatorship right before the child’s
18th birthday. Lowe further argues that the ground for child support did not exist before
the child’s 18th birthday because the child was living with Lowe on her birthday.
Lowe relies on Red v. Red, 552 S.W.2d 90 (Tex. 1977), in which the Texas
Supreme Court held that a trial court “may order that payments for the support of the
child shall be continued after the 18th birthday only if the grounds therefore exist and are
invoked before the child becomes an adult; i.e., before reaching age 18.” Id. at 92
(internal quotation marks omitted). Lowe concedes that because of a subsequent
amendment to the statute, there no longer is any requirement that the grounds be
“invoked” before the child’s 18th birthday — for example, by filing a petition. See Tex.
2
Fam. Code Ann. § 154.002(b) (Vernon 2008) (“The request for a support order through
high school graduation may be filed before or after the child’s 18th birthday.”); Crocker
v. Att’y Gen. of Tex., 3 S.W.3d 650, 652 (Tex. App.—Austin 1999, no pet.) (“Subsection
(b), expressly allowing a request for support through high school graduation to be filed
after the child turns eighteen, supersedes the reasoning in Red and invalidates it as
support for this case.”).
Lowe nonetheless maintains that the ground for child support must exist before the
child’s 18th birthday; that is, the parent requesting child support must have been entitled
to child support before the child’s 18th birthday. We find no support for Lowe’s position
in the Family Code or case law.
Relying on Lueg v. Lueg, 976 S.W.2d 308 (Tex. App.—Corpus Christi 1998, pet.
denied), Lowe argues that the right to receive child support “is derived from
conservatorship.” Lueg held that the trial court abused its discretion when it required a
sole managing conservator to pay child support to a possessory conservator because a
sole managing conservator has the exclusive right to receive child support while the
Family Code ascribes no such right to a possessory conservator. See id. at 313.
Regardless of the fact that the Lueg case concerned an erroneous order — rather than the
trial court’s jurisdiction to enter an order — the facts are distinguishable. Roberts was
not a possessory conservator; she and Lowe both were joint managing conservators. A
trial court has authority to require one joint managing conservator to pay child support to
another joint managing conservator. See Tex. Fam. Code Ann. § 153.138 (Vernon 2008)
(“The appointment of joint managing conservators does not impair or limit the authority
of the court to order a joint managing conservator to pay child support to another joint
managing conservator.”); see also Tex. Fam. Code Ann. § 153.134(b)(2) (Vernon 2008).
Finally, Lowe contends that the trial court loses jurisdiction to alter the
conservatorship right to receive child support upon the child’s 18th birthday. We find no
support for this argument, and the Family Code suggests the opposite. See id.
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§ 154.002(a)-(b) (“The court may render an original support order, or modify an existing
order, providing child support past the 18th birthday of the child to be paid only if the
child is [enrolled in high school]. The request for a support order through high school
graduation may be filed before or after the child’s 18th birthday.”); Tex. Fam. Code Ann.
§ 151.001(b)-(c) (Vernon 2008) (“The duty of a parent to support his or her child exists
while the child is an unemancipated minor and continues as long as the child is fully
enrolled in a secondary school in a program leading toward a high school diploma and
complies with attendance requirements described by Section 154.002(a)(2). . . . A parent
who fails to discharge the duty of support is liable to a person who provides necessaries
to those to whom support is owed.”).1
Lowe’s sole issue is overruled.
CONCLUSION
We hold the trial court had jurisdiction in this case and affirm the trial court’s
order modifying the parent-child relationship.
/s/ William J. Boyce
Justice
Panel consists of Justices Brown, Boyce, and McCally.
1
See also In re J.A.B., 13 S.W.3d 813, 816 (Tex. App.—Fort Worth 2000, no pet.) (“The obvious
intent of the legislature . . . is to require parents to aid in the support of their child, even if that child is
over eighteen years of age, as long as the child is participating in studies leading toward a high school
diploma.”); Crocker, 3 S.W.3d at 653 (same). In an unpublished opinion, the Beaumont Court of Appeals
held that the trial court properly ordered child support until the child graduated from high school when (1)
the parent ordered to pay child support had not been ordered previously to pay child support; and (2) the
child’s 18th birthday had passed before suit was filed. Pecora v. Hooks, No. 09-95-200CV, 1996 WL
447900, at *1, *3 (Tex. App.—Beaumont Aug. 8, 1996, no writ) (not designated for publication).
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