in the Interest of E.O. and A.O., Minor Children ( 2021 )

NUMBER 13-18-00637-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF E.O. AND A.O., MINOR CHILDREN
On appeal from the 319th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Tijerina
In this suit affecting the parent-child relationship (SAPCR), appellant Jimie Dianne
Owsley appeals the trial court’s denial of her motion to modify the final divorce decree.1
1 By eleven issues, appellant contends that the trial court erred by: (1)–(3) improperly excluding
evidence; (4) improperly refusing “to appoint her as sole managing conservator and appellee Brian Leon
Owsley as possessory conservator”; (5) improperly refusing “to give [her] the exclusive power to determine
the primary residence of the children when she and [appellee] live in the same county”; (6) “refusing to
remove the geographical restriction limiting the primary residence of the children to Nueces and Dallas
Counties”; (7) “in refusing to modify the provision in the Decree giving [her] two weekends of possession
during the summer when she and [appellee] live in different counties”; (8) “in not setting [appellee’s] periods
of possession in accordance with the Standard Possession Order set out in the Family Code”; (9) “abused
its discretion by not giving [her] the exclusive right to select schools and authorize medical, dental, surgical,
psychological, and psychiatric treatment”; (10) “abused its discretion by refusing to order Brian to pay child
support to [her] retroactive to when he appeared in the case”; and (11) “awarding Brian a money judgment
Appellee Brian Owsley filed a motion to dismiss this appeal. We dismiss the appeal in
part, and we affirm in part.
I. BACKGROUND
Jimie and Brian were divorced. The former couple has two children, A.O. and E.O.
Subsequently, in 2018, Jimie filed a motion to modify child support and possession
claiming that material and substantial changes regarding the children had occurred.
The trial court held a SAPCR hearing on July 16–17, 2018. It granted in part and
denied in part Jimie’s motion on August 20, 2018. Jimie appealed the August 20, 2018
judgment in this cause on November 16, 2018. On February 7, 2019, Jimie filed for
bankruptcy, the Court stayed the appellate proceedings, and after the bankruptcy court
proceeding ended, Jimie’s appeal was reinstated. While this appeal was pending, Jimie
filed a subsequent motion to modify the final SAPCR order, and on August 6, 2020, the
trial court signed a judgment in that separate proceeding. Jimie did not appeal from that
judgment.
II. MOOTNESS
Frist, Brian argues that Jimie’s first ten issues are moot because she filed a new
modification suit, the trial court held a new SAPCR hearing on that subsequent motion,
and it entered a new subsequent final order, an order Jimie did not appeal. Jimie responds
that her appeal is not moot as to her first ten issues because the trial court’s judgment in
this cause is from a separate and distinct suit. Brian further argues in his motion to dismiss
for attorney’s fees of $35,000 in the trial court, $18,000 in the Court of Appeals, and $18,000 in the Supreme
Court, in connection with the SAPCR proceeding.”
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that Jimie’s eleventh issue is moot because Jimie sought relief in the bankruptcy court,
and it ordered her to pay the attorney’s fees, which are the subject of this appeal.
Brian has attached evidence to his motion to dismiss. Jimie does not contest the
evidence, and she concedes that she filed a modification suit during the pendency of this
appeal, acquired a new judgment from the trial court, and that the bankruptcy court
ordered her to pay the attorney’s fees she now appeals in this cause.
A. Applicable Law
“[C]ourts have an obligation to take into account intervening events that may
render a lawsuit moot.” Heckman v. Williamson County, 369 S.W.3d 137, 166–67 (Tex.
2012). We lack jurisdiction to decide moot controversies and to render advisory opinions.
See Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). “And we have
the power, ‘on affidavit or otherwise,’ to ‘ascertain the matters of fact that are necessary
to the proper exercise of [our] jurisdiction,’ even if evidence establishing those facts is not
in the trial court’s record.” State ex rel. Best v. Harper, 562 S.W.3d 1, 7 (Tex. 2018); see
TEX. GOV’T CODE ANN. § 22.220 (“Each court of appeals may, on affidavit or otherwise, as
the court may determine, ascertain the matters of fact that are necessary to the proper
exercise of its jurisdiction.”); see also Glass v. Sponsel, 916 S.W.2d 25, 26 (Tex. App.—
Houston [1st Dist.] 1995, writ dism’d).
A case is not moot if a justiciable controversy between the parties exists at every
stage of the legal proceedings, including the appeal. Williams v. Lara, 52 S.W.3d 171,
184 (Tex. 2001). “If a controversy ceases to exist—the issues presented are no longer
‘live’ or the parties lack a legally cognizable interest in the outcome—the case becomes
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moot.” Id. When an appellate court’s judgment cannot have any practical legal effect upon
a previous existing controversy, the case is also moot. Zipp v. Wuemling, 218 S.W.3d 71,
73 (Tex. 2007) (“An appeal is moot when a court’s action on the merits cannot affect the
rights of the parties.”).
[T]he law generally provides that, despite the existence of a justiciable
controversy between the parties at the time the dispute arose or the appeal
was taken, changed circumstances may moot a complaint. Thus, for any
number of reasons, a complaint regarding a final judgment—whether
arising under the family code or any other civil law provision—can become
moot prior to resolution of the matter on appeal.
In re Reardon, 514 S.W.3d 919, 927–28 (Tex. App.—Fort Worth 2017, no pet.) (listing
cases and summarizing their holdings as follows: “Emps. Fin. Co. v. Lathram, 369 S.W.2d
927, 930 (Tex. 1963) (mooted by voluntary payment); JJW, L.L.C. v. Aguirre, No. 08-16-
00051-CV, 2016 WL 3632809, at *1 (Tex. App.—El Paso July 6, 2016, no pet.) (mem.
op.) (mooted by grant of new trial); Robinson v. Alief ISD, 298 S.W.3d 321, 326 (Tex.
App.—Houston [14th Dist.] 2009, pet. denied) (mooted by defendant’s expunction of
complained-of material in plaintiff’s personnel file); Murphy v. Murphy, 21 S.W.3d 797,
798 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (mooted by party’s death); Fowler v.
Bryan ISD, No. 01-97-01001-CV, 1998 WL 350488, at *6–7 (Tex. App.—Houston [1st
Dist.] July 2, 1998, no pet.) (not designated for publication) (mooted by defendant’s
adoption of policies and training sought by plaintiff).”).
“A petition seeking a modification is considered a separate lawsuit and, as such, it
seeks a substitute judgment that would replace an existing order in a [SAPCR].” In re
Reardon, 514 S.W.3d 919, 924 (Tex. App.—Fort Worth 2017, orig. proceeding) (citing
TEX. FAM. CODE ANN. § 156.004). Thus, as a modification suit filed after the rendition of a
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final order in a SAPCR constitutes an original lawsuit, the subsequent modification
proceeding results in a new final order. 2 Bilyeu v. Bilyeu, 86 S.W.3d 278, 280 (Tex.
App.—Austin 2002, no pet.) (citing TEX. FAM. CODE ANN. § 156.004; Normand v. Fox, 940
S.W.2d 401, 403 (Tex. App.—Waco 1997, no pet.) (“A suit for modification is a new
lawsuit filed after the rendition of a final order.”)); see also Blank v. Nuszen, No. 01-13-
01061-CV, 2015 WL 4747022, at *2 (Tex. App.—Houston [1st Dist.] Aug. 11, 2015, no
pet.) (mem. op.).
B. Jimie’s Issues Concerning Conservatorship, Possession, and Access
Here, Jimie’s new suit for modification, filed after the trial court’s rendition of its
August 20, 2018 final order, constituted an “original” suit, which sought a substitute
judgment replacing the existing SAPCR order. See TEX. FAM. CODE ANN. § 156.004; In re
Reardon, 514 S.W.3d at 924. The subsequent modification proceeding resulted in a new
final order regarding possession, access, and conservatorship. See Bilyeu, 86 S.W.3d at
280. In addition, the trial court’s August 6, 2020 modification order constitutes a new final
judgment. See Bilyeu, 86 S.W.3d at 280.
The trial court retained jurisdiction to modify the original SAPCR order even though
Jimie filed the new petition for modification during the pendency of this appeal of the trial
court’s August 20, 2018 judgment. See Hudson v. Markum, 931 S.W.2d 336, 337–38
(Tex. App.—Dallas 1996, no writ) (holding trial court retained jurisdiction to modify child
2 “When the Legislature recodified Section 14.08 it changed the language in the section from ‘a
motion to modify’ to ‘a suit for modification.’ This change emphasizes that the Legislature intends that trial
courts continue to treat modifications as original lawsuits.” Normand v. Fox, 940 S.W.2d 401, 403 (Tex.
App.—Waco 1997, no writ) (citing Hudson v. Markum, 931 S.W.2d 336, 338 n.5 (Tex. App.—Dallas 1996,
no writ)).
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support order notwithstanding pendency of appeal from prior support order); see also
Blank, 2015 WL 4747022, at *2. Moreover, once the trial court issued its subsequent
August 6, 2020 judgment, that judgment replaced the August 20, 2018 judgment. See In
re Reardon, 514 S.W.3d at 924; Bilyeu, 86 S.W.3d at 280.
We are required to take into account intervening events that may render a lawsuit
moot, and Jimie does not dispute that she filed a subsequent modification suit and that
the trial court issued its subsequent August 6, 2020 judgment during the pendency of this
appeal. See Heckman, 369 S.W.3d at 166–67.
Moreover, a justiciable controversy between the parties no longer exist as to
Jimie’s first nine issues regarding conservatorship, possession, and access. By these
issues, Jimie contends that the trial court improperly excluded evidence, determined
conservatorship, possession, and access to the children, decided not to give her power
to determine residency, schooling, and medical decisions of the children, and decided not
to remove the geographical restriction limiting the primary residence of the children to
Nueces and Dallas Counties. Our determination of these issues is moot because the
August 20, 2018 judgment has been replaced by the August 6, 2020 judgment. See
Williams, 52 S.W.3d at 184. Jimie’s first nine issues relating to the trial court’s alleged
errors regarding conservatorship, possession, and access are thus no longer “live.” See
Williams, 52 S.W.3d at 184. Reversal of the August 20, 2018 judgment on the basis of
these issues would have no practical legal effect. See Zipp, 218 S.W.3d at 73.
Accordingly, we conclude that Jimie’s first nine issues are moot.
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B. Jimie’s Eleventh Issue Challenging Attorney’s Fees
Jimie filed for bankruptcy during the pendency of this appeal, and the bankruptcy
court ordered her to pay the attorney fees as awarded by the trial court in this appeal.
Thus, Brian argues that we have no jurisdiction over the matter as the bankruptcy court’s
order renders this appeal regarding attorney’s fees moot. Jimie responds that the
bankruptcy court’s judgment ordering her to pay attorney’s fees is not moot because
attorney’s fees are not dischargeable in bankruptcy court.3
A case “is not rendered moot simply because some of the issues become moot
during the appellate process.” In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737
(Tex. 2005) (orig. proceeding). A case remains “live” to claims or issues that are not moot
even if some claims or issues become moot. See id.Nonetheless, the bankruptcy court has ordered Jimie to pay the attorney’s fees
awarded in the appealed-from judgment in this case, and that order is final. Thus, even if
we were to determine that the trial court in this appeal erroneously awarded those fees to
Brian, Jimie would still be required to pay those attorney’s fees as she did not appeal the
bankruptcy court’s final order.4 Accordingly, our ruling in this matter cannot have any
practical legal effect upon the previous existing controversy between Jimie and Brian
concerning attorney’s fees. Zipp, 218 S.W.3d at 73. Therefore, we conclude that Jimie’s
issue regarding the award of attorney’s fees is moot.
3 We note that Jimie cites no authority, and we find none, supporting this argument.
4 This Court has no jurisdiction to correct error occurring in bankruptcy court. See In Interest of
C.C., 02-17-00058-CV, 2017 WL 4819407, at *2 (Tex. App.—Fort Worth Oct. 26, 2017, no pet.) (explaining
that if the bankruptcy court erred, we have no jurisdiction to review that error).
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C. Retroactive Child Support
By her tenth issue, Jimie contends that the trial court “abused its discretion by
refusing to order Brian to pay child support to [her] retroactive to when he appeared in the
case” This issue is not moot because in the trial court Jimie requested and the trial court
refused to award retroactive child support from the date of the divorce decree until the
date of the July 16–17, 2018 SAPCR hearing. The superseding August 6, 2020 order
does not award retroactive child support for this period. See TEX. FAM. CODE ANN.
§ 156.401(b) (providing that “[a] support order may be modified with regard to the amount
of support ordered only as to obligations accruing after the earlier of: (1) the date of
service of citation; or (2) an appearance in the suit to modify”).
Thus, even though some of Jimie’s issues have become moot, we conclude that
the case remains “live” as to her claim for retroactive child support from the date of the
divorce decree until the date of the trial court’s July 16–17, 2018 SAPCR hearing. See In
re Kellogg Brown & Root, Inc., 166 S.W.3d at 737. Therefore, we will address the merits
of Jimie’s tenth issue
III. RETROACTIVE CHILD SUPPORT
By her tenth issue, Jimie contends that the trial court “abused its discretion by
refusing to order Brian to pay child support to [her] retroactive to when he appeared in the
case.” Specifically, Jimie argues as follows:
In the Decree of Divorce, the trial court found that “good cause exists not to
require BRIAN LEON OWSLEY to pay child support to JIMIE DIANE
OWSLEY for support of the children at this time.” “Good cause” is not the
same as unjust or inappropriate. It is too late to raise error regarding the
initial decision not to order child support, but upon a showing of a material
and substantial change in circumstances the court now must make a child
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support decision considering the presumptive child support guidelines and
the present circumstances of the parties and their children.
Jimie was carrying most of the costs associated with raising children. She
paid E.O.’s tuition at Annapolis Christian Academy in Corpus Christi for the
2016-2017 year, amounting to $9,696.45. Brian did not reimburse Jimie for
half of E.O.’s psychiatrist’s fee. He also did not reimburse Jimie for half of
E.O.’s counseling fee with Odette Gonzalez. The Court has the authority to
modify the support obligation retroactive to the date that Brian was served
with citation in Jimie’s modification proceeding. Tex. Fam. Code
§ 156.401(b). Since Brian was not contributing to the children’s living
expenses while they were with their mother, including schooling, medical,
dental and optical care, music lessons, tutoring, etc., it was an abuse of
discretion for the Trial Court not to modify child support and require Brian to
pay Jimie child support going forward and retroactively.
A. Applicable Law and Standard of Review
“There are four ‘types’ of child support that a court may order one parent to pay to
the other—temporary, current, medical, and retroactive.” In re B.R.F., 457 S.W.3d 509,
510 (Tex. App.—El Paso 2014, no pet.) (citation omitted). A trial court can order
retroactive child support if “the parent . . . has not previously been ordered to pay support
for the child . . . .” TEX. FAM. CODE § 154.009(a)(1).
“An existing child support order may be modified if the circumstances of the child
or a person affected by the order . . . to be modified have materially and substantially
changed since the date of its rendition. . . .” Farish v. Farish, 921 S.W.2d 538, 541 (Tex.
App.—Beaumont 1996, no writ) (citing TEX. FAM. CODE ANN. § 14.08(c)(2) . . . (repealed
1995) (current version at [id.] § 156.401(a) . . . ).
In determining whether a modification in child support payments is
appropriate, the trial court should examine the circumstances of the child
and parents at the time the prior decree was rendered in relation to the
circumstances existing at the time the prior order is sought to be modified.
S.A.B.S. v. H.B., 767 S.W.2d 860, 862 (Tex. App.—Corpus Christi[–
Edinburg] 1989, no writ). Therefore, evidence regarding the parents’
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financial circumstances or the child’s financial circumstances and needs at
the time of the divorce and the time of the modification hearing should be
presented to the trial court such that the trial court can determine whether
the circumstances of the child or the parties affected by the decree have
materially and substantially changed since the date of the decree sought to
be modified. See [i]d.
MacCallum v. MacCallum, 801 S.W.2d 579, 583 (Tex. App.—Corpus Christi–Edinburg
1990, writ denied).
The trial court may alter the child support obligation if the party requesting the
modification shows that the circumstances have changed. See Farish, 921 S.W.2d at
541. “The ‘best interest of the child’ remains the trial court’s primary consideration in
determining questions of child support.” Id. (citing Hammond v. Hammond, 898 S.W.2d
406 (Tex. App.—Fort Worth 1995, no writ); TEX. FAM. CODE ANN. § 14.07 . . . (repealed
1995) (current version at TEX. FAM. CODE ANN. § 153.002) . . . .).
We apply an abuse of discretion standard of review in determining whether the trial
court erred in its retroactive child support decision. In re J.G.Z., 963 S.W.2d 144, 146
(Tex. App.—Texarkana 1998, no pet.); see also Worford v. Stamper, 801 S.W.2d 108,
109 (Tex. 1990) (per curiam). Under the abuse of discretion standard of review, we must
decide whether the court acted arbitrarily or unreasonably, without reference to guiding
rules and principles. Worford, 801 S.W.2d at 109. We view the evidence in the light most
favorable to the actions of the trial court and indulge every legal presumption in favor of
the judgment. Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.]
1993, writ denied).
B. Discussion
Jimie argues that the trial court should have ordered Brian to pay her retroactive
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child support from the date of the divorce decree on February 19, 2016, to the date of the
hearing on July 17, 2018. To be entitled to retroactive child support, Jimie was required
to provide the trial court with the financial circumstances of the parties as they existed at
the time of divorce, and as they existed at the time of trial. See In the Interest of C.H.C.,
392 S.W.2d 347 (Tex. App.—Dallas 2013, no pet.) (“To determine whether a child support
modification is warranted, the trial court must compare the financial circumstances of the
affected party at the time the order was entered with his or her circumstances at the time
the modification is sought’). Hammond, 898 S.W.2d at 407.
In the trial court, Jimie, acting pro se, testified about her expenses at the time of
trial5; she also mentioned expenses she anticipated to have or had already paid for the
children. Jimie stated that she makes $40,000 per month, and in the previous year, she
earned approximately $550,000.6 Brian testified that Jimie’s income had increased since
the time of the divorce. Brian stated that at the time of the divorce he earned $96,000 and
was currently earning $105,000. However, other than Brian’s income, Jimie did not
present evidence of her financial circumstances, Brian’s financial circumstances, and the
child’s financial circumstances at the time the original divorce decree as required. Without
evidence of this data, the trial court had no financial circumstances to compare and was
therefore not able to determine whether a material and substantial change has occurred.
5 Jimie specifically stated that her home had mold, which she needed money to repair. However,
Brian presented the deposition testimony of Jimie’s former employee who testified that the mold issue had
been discussed by Jimie prior to the divorce proceeding.
6 Jimie’s employee stated that following the divorce, Jimie told the employee that Jimie planned on
working less so that her income would be lower than Brian’s for purposes of future litigation regarding child
support because Brian had not been ordered to pay child support.
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London v. London, 94 S.W.3d 139, 145 (Tex. App.—Houston [14th Dist.] 2002, pet.
denied); In the Interest of C.H.C., 392 S.W.2d at 349. Therefore, we conclude that the
trial court did not abuse its discretion in not awarding retroactive child support.
Accordingly, we overrule Jimie’s tenth issue.
IV. CONCLUSION
We affirm the judgment in part insofar as the trial court refused to award retroactive
child support. Having considered the documents on file, Brian’s motion to dismiss the
appeal, and Jimie’s response, we are of the opinion that the motion should be granted as
to Jimie’s first through ninth issues and her eleventh issue. See TEX. R. APP. P. 42.1(a).
Brian’s motion to dismiss is granted in part, and the appeal is hereby dismissed in part.
JAIME TIJERINA
Justice
Delivered and filed on the
28th day of October, 2021.
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