Andrew Wilburn Russell v. Heather Diane Schriber ( 2024 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00731-CV
Andrew Wilburn Russell, Appellant
v.
Heather Diane Schriber, Appellee
FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-FM-18-000813, THE HONORABLE MADELEINE CONNOR, JUDGE PRESIDING
MEMORANDUM OPINION
This is an appeal from a modification order in a suit affecting the parent-child
relationship (SAPCR). The appellant, Andrew Wilburn Russell, challenges the trial court’s
modification order, which (1) modified the parties’ possession and access to their child, L.J.R.;
(2) ordered that Russell make monthly child support payments; and (3) awarded Russell and
Schriber attorneys’ fees. Russell also appeals the court’s denial of his motion to hold Schriber in
contempt for allegedly violating a 2019 Agreed Order in the SAPCR. We will affirm the trial
court’s modification order. We will dismiss Russell’s challenge to the court’s denial of his motion
to hold Schriber in contempt for lack of jurisdiction.
BACKGROUND
Russell and Schriber are the parents of L.J.R., who was eight years old at the time
of the modification hearing. In August 2019, Russell filed a suit to establish paternity of L.J.R.
and an accompanying SAPCR seeking to be appointed L.J.R.’s sole managing conservator.
Schriber filed a counter-petition acknowledging that Russell was L.J.R.’s father and requesting
that she and Russell be appointed L.J.R.’s joint managing conservators. In December 2019, the
court signed an Agreed Order that resolved the parties’ competing SAPCRs and addressed issues
related to conservatorship and possession and access to L.J.R. Relevant to this appeal, the Agreed
Order appointed Russell and Schriber L.J.R.’s joint managing conservators. The Agreed Order
also provided for a phased possession schedule for Schriber, with increasing periods of possession
dependent on her complying with the provisions of the Agreed Order addressing issues such as
parent education, ensuring L.J.R. was properly cared for and attended school regularly and on
time, and the method for communications between Russell and Schriber regarding L.J.R. The
Agreed Order provided that, during any of the phases, if Schriber failed “to meet any requirement
detailed in” the Agreed Order, the time period for the phase started over and Schriber’s possession
would be pursuant to that phase until she had complied with the requirements for that phase for its
entire time period. The Agreed Order also provided that “no party will owe child support to the
other party.”
In August 2021, Schriber filed a petition to modify the parent-child relationship
seeking to modify the Agreed Order primarily to provide her possession of L.J.R. pursuant to a
5/2/2/5 schedule and to order Russell to pay “guideline child support.”1 Russell responded by
filing a motion to enforce the Agreed Order seeking, relevant to this appeal, to hold her in
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At trial, Schriber testified that in the two years since entry of the Agreed Order, Russell
had “restarted” Schriber’s phase one possession time period at least ten times based on what she
characterized as minor deviations from the “detailed requirements” of the Agreed Order that had
no negative impact on L.J.R.’s health or well-being. On appeal, Schriber maintains that she
substantially complied with the Agreed Order and that Russell’s repeatedly “restarting” her phase
one possession time period was retaliatory, harassing, and contrary to L.J.R.’s best interest.
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criminal contempt for “approximately 128” alleged violations of the Agreed Order. Russell also
filed a counter-petition to modify the parent-child relationship, again seeking to be appointed
L.J.R.’s sole managing conservator and requesting that Schriber be ordered to make child support
payments to him.
In June 2022, the trial court held a hearing on the competing motions to modify
the parent-child relationship and on Russell’s motion to enforce the Agreed Order by contempt.
After the hearing, Schriber filed a motion for attorneys’ fees, which Russell moved to strike. In
September 2022, the trial court signed a Final Order to Modify Parent-Child Relationship that, in
relevant part, appointed Russell and Schriber L.J.R.’s joint managing conservators, provided that
Schriber have possession of L.J.R. on Mondays and Tuesdays of each week and on alternating
weekends, and ordered Russell to make monthly child support payments of $1,359.10. The trial
court denied Russell’s motion to hold Schriber in contempt for prior alleged violations of the
Agreed Order; ordered Schriber to pay Russell $500 in attorneys’ fees related to a previously filed
motion to compel discovery; and ordered Russell to pay Schriber $6,659.10 in attorneys’ fees
pursuant to Texas Family Code section 106.002. See Tex. Fam. Code § 106.002(a) (trial court
may render judgment in SAPCR for reasonable attorneys’ fees and expenses). Russell then
perfected this appeal.
DISCUSSION
The issues presented in this appeal over which this Court has jurisdiction are subject
to review for clear abuse of discretion. See, e.g., Worford v. Stamper, 801 S.W.2d 108, 109
(Tex. 1990); Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied);
In re J.R.D., 169 S.W.3d 740, 743 (Tex. App.—Austin 2005, pet. denied); Echols v. Olivarez,
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85 S.W.3d 475, 476 (Tex. App.—Austin 2002, no pet.); Satterfield v. Huff, 768 S.W.2d 839, 841
(Tex. App.—Austin 1989, writ denied). “A trial court abuses its discretion only when it has acted
in an unreasonable or arbitrary manner, or when it acts without reference to any guiding principle.”
In re Marriage of Jeffries, 144 S.W.3d 636, 638 (Tex. App.—Texarkana 2004, no pet.) (citing
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). Under this
standard, legal and factual sufficiency of the evidence are not independent grounds for asserting
error but are relevant factors in determining whether the trial court abused its discretion. Zeifman,
212 S.W.3d at 587; Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.—Dallas 2004, no pet.);
In re Davis, 30 S.W.3d 609, 614 (Tex. App.—Texarkana 2000, no pet.). In determining whether
the trial court abused its discretion, we consider whether the trial court had sufficient evidence
upon which to exercise its discretion and, if so, whether it erred in the exercise of that discretion.
In re W.C.B., 337 S.W.3d 510, 513 (Tex. App.—Dallas 2011, no pet.). We consider only the
evidence most favorable to the trial court’s ruling and will uphold its judgment on any legal theory
supported by the evidence. Worford, 801 S.W.2d at 109. A trial court does not abuse its discretion
if there is some evidence of a substantive and probative character to support the trial court’s
decision. Valdez v. Valdez, 930 S.W.2d 725, 731 (Tex. App.—Houston [1st Dist.] 1996, no writ).
We are further mindful that “the trial judge is best able to observe and assess the
witnesses’ demeanor and credibility, and to sense the ‘forces, powers, and influences’ that may
not be apparent from merely reading the record on appeal.” In re A.L.E., 279 S.W.3d 424, 427
(Tex. App.—Houston [14th Dist.] 2009, no pet.). We, therefore, defer to the trial court’s judgment
in matters involving factual resolutions and any credibility determinations that may have affected
those resolutions. George v. Jeppeson, 238 S.W.3d 463, 468 (Tex. App.—Houston [1st Dist.]
2007, no pet.).
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Modification of Agreed Order
On appeal, Russell argues that the trial court’s determinations on conservatorship
(appointing Russell and Schriber joint managing conservators); possession and access (providing
that Schriber have possession of L.J.R. on Mondays, Tuesdays, and alternating weekends and
that Russell have possession of L.J.R. on Wednesdays, Thursdays, and alternating weekends);
and child support (ordering Russell to pay monthly child support in the amount of $1,359.10)
constituted an abuse of discretion.
With respect to the conservatorship and possession issues, Russell asserts that
Schriber failed to meet her burden of demonstrating that there was a material and substantial
change in circumstances as required to support the trial court’s modification of an order regarding
conservatorship and possession and access. See Tex. Fam. Code § 156.101(a); Zeifman, 212
S.W.3d at 589. As an initial matter, we note that the trial court’s order appointing Russell and
Schriber joint managing conservators of L.J.R. did not constitute a modification of the Agreed
Order, which already included a provision appointing the parents L.J.R.’s joint managing
conservators. With regard to possession and access to L.J.R., while Russell argues that the
evidence is legally and factually insufficient to support a finding that there has been a material and
substantial change warranting modification of the possession and access provisions of the Agreed
Order, his live pleading at the time of trial alleged, with respect to modification of conservatorship
and possession and access, that “[t]he circumstances of the child, a conservator, or other party
affected by the order to be modified have materially and substantially changed since the date of
rendition of the order to be modified.” Russell and Schriber sought different relief in their petitions
to modify the parent-child relationship with respect to possession and access; however, their
modification claims contained a common essential element. That is, each required proof of
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“change of circumstances.” See In re A.E.A., 406 S.W.3d 404, 410 (Tex. App.—Fort Worth 2013,
no pet.). Russell’s allegation of a change in circumstances in his petition to modify constitutes a
judicial admission of that same essential element in Schriber’s claim for modification of the parent-
child relationship even though the parties did not request the same relief. See Obernhoff v. Nelson,
No. 01-17-00816-CV, 2019 WL 4065017, at *20 (Tex. App.—Houston [1st Dist.] Aug. 29, 2019,
no pet.) (mem. op.) (“One party’s allegation of a change in circumstances of the parties constitutes
a judicial admission of the common element of ‘change of circumstances’ in the other party’s
similar pleading.”); In re A.E.A., 406 S.W.3d at 410. Further, an admission in a trial court pleading
constitutes a judicial admission in the case in which the pleading was filed, requires no proof
of the admitted fact, and authorizes the introduction of no evidence to the contrary. Obernhoff,
2019 WL 4065017, at *20; In re A.E.A., 406 S.W.3d at 410; see also Holy Cross Church of God
in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (assertion of fact in party’s pleading can
constitute judicial admission that may substitute for evidence that has “conclusive effect and bars
the admitting party from later disputing the admitted fact”).
Russell is therefore precluded from asserting on appeal that the evidence is
insufficient to support the trial court’s finding that there had been a material and substantial change
warranting modification of the Agreed Order’s possession and access provisions. See In re A.L.H.,
515 S.W.3d 60, 81 n.5 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (appellate court must
overrule sufficiency challenge where party judicially admitted material and substantial change in
circumstances had occurred in petition to modify); Filla v. Filla, No. 03-14-00502-CV, 2016 WL
4177236, at *5 (Tex. App.—Austin Aug. 5, 2016, pet. denied) (mem. op.) (“[W]ell established
case law provide[s] that an allegation in a pleading of a material and substantial change constitutes
a judicial admission of the same element in the opposing party’s claim for modification of the
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previous order . . . [and] [b]ecause [party] judicially admitted th[e] element, she is barred on
appeal from challenging the sufficiency of the evidence to support it.”); In re A.E.A., 406 S.W.3d
at 410-11 (because party judicially admitted change-of-circumstances element of other party’s
claim in his petition to modify, party barred on appeal from challenging sufficiency of evidence to
support material and substantial change in circumstances). We overrule Russell’s challenges to
the trial court’s determinations regarding conservatorship and possession and access.
With respect to the child support issue, Russell argues that the trial court abused its
discretion by modifying the Agreed Order to include a provision ordering that he make monthly
child support payments of $1,359.10. Russel asserts that, in the Agreed Order, “the parties agreed
that neither party would owe child support to the other party” and further maintains that “[t]he
imposition of monthly child support appears to be the direct result of the trial court erroneously
granting [Schriber’s] motion to modify and order[ing] that possession of L.J.R. be equal.” Russell
again states that Schriber “failed to prove a material and substantial change of circumstances” that
would support modifying the Agreed Order to include a provision requiring that he make monthly
child support payments. Specifically, Russell asserts that “[Schriber] provided absolutely no
evidence that [her] financial circumstances or [Russell’s] financial circumstances had materially
and substantially changed since the 2019 Agreed Order.”
In his motion to modify, Russell requested that the court modify the child support
order to provide that Schriber “pay child support to [Russell], per the Texas Family Code
Guidelines, retroactively, beginning on the date that [Schriber] was served” with his motion to
modify. In his live pleading, Russell alleged, with respect to modification of the child support
provision, that “[t]he circumstances of the child, a conservator, or other party affected by the
order to be modified have materially and substantially changed since the date of rendition of the
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order to be modified.” As previously discussed, having made this judicial admission, Russell is
precluded from asserting on appeal that the evidence is insufficient to support the trial court’s
finding that there had been a material and substantial change warranting modification of the
Agreed Order’s child support provisions. See In re A.L.H., 515 S.W.3d at 81 n.5 (appellate court
must overrule sufficiency challenge where party judicially admitted material and substantial
change in circumstances had occurred in petition to modify); Filla, 2016 WL 4177236, at *5
(“[W]ell established case law provide[s] that an allegation in a pleading of a material and
substantial change constitutes a judicial admission of the same element in the opposing party’s
claim for modification of the previous order . . . [and] [b]ecause [party] judicially admitted th[e]
element, she is barred on appeal from challenging the sufficiency of the evidence to support it.”);
In re A.E.A., 406 S.W.3d at 410-11 (because party judicially admitted change-of-circumstances
element of other party’s claim in his petition to modify, party barred on appeal from challenging
sufficiency of evidence to support material and substantial change in circumstances). We overrule
Russell’s challenge to the trial court’s order that he make monthly child support payments.
Motion for Enforcement by Contempt
In his appeal, Russell challenges the trial court’s denial of his motion to hold
Schriber in contempt for alleged violations of the Agreed Order. In his motion, Russell asserted
that Schriber had repeatedly violated provisions of the order related to L.J.R.’s care. By way of
example, Russell claimed that, from September 2019 through May 2022, Schriber failed to respond
to his communications posted to the Our Family Wizard program within 24 hours on 72 occasions
and that Schriber violated the Agreed Order in other ways such as allowing L.J.R. to miss two
swimming lessons; twice failing to return L.J.R.’s school notebook and clothing at the end of her
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periods of possession; failing to inform Russell of the job title, address of, or phone number for a
new job she told him she had secured; and on a few occasions permitting or causing L.J.R. to be
tardy to school, miss taking her allergy medication, and skip a meal. In his motion, Russell
requested that Schriber be “held in criminal contempt and fined for each” alleged violation of the
Agreed Order. The trial court denied the request to hold Schriber in contempt. On appeal, Russell
argues that the trial court abused its discretion by characterizing the alleged violations as “minor
infractions” and denying his request that Schriber be held in contempt for the “undisputed”
violations of the Agreed Order.
Although neither party raised it, this Court has a duty to assess its own jurisdiction
sua sponte. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004); Ward v. Lamar
Univ., 484 S.W.3d 440, 450-51 (Tex. App.—Houston [14th Dist.] 2016, no pet.). This Court “has
jurisdiction to hear an appeal when the ‘issues on appeal do not assert that the trial court erred in
refusing to hold [appellee] in contempt of court.’” Marcus v. Smith, 313 S.W.3d 408, 415 (Tex.
App.—Houston [1st Dist.] 2009, no pet.) (quoting In re W.J.B., 294 S.W.3d 873, 878 (Tex. App.—
Beaumont 2009, no pet.)). An “order finding a party not in contempt is not a final, appealable
judgment.” Norman v. Norman, 692 S.W.2d 655, 655 (Tex. 1985). “Decisions in contempt
proceedings cannot be reviewed on appeal because contempt orders are not appealable, even when
appealed along with a judgment that is appealable.’” Marcus, 313 S.W.3d at 415 (quoting Cadle
Co. v. Lobingier, 50 S.W.3d 662, 671 (Tex. App.—Fort Worth 2001, pet. denied)).
Contempt proceedings, whether the court grants or denies the motion, are not
appealable because they “are not concerned with disposing of all claims and parties before the
court, as are judgments; instead, contempt proceedings involve a court’s enforcement of its own
orders, regardless of the status of the claims between the parties before it.” In re Office of Attorney
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Gen. of Tex., 215 S.W.3d 913, 915-16 (Tex. App.—Fort Worth 2007, orig. proceeding); Hooper
v. Hooper, No. 14-09-01024-CV, 2011 WL 334198, at *1 (Tex. App.—Houston [14th Dist.]
Feb. 3, 2011, no pet.) (mem. op.) (dismissing for want of jurisdiction appeal from denial of
contempt motion seeking to enforce child support order). “A contempt judgment may be attacked
by a petition for writ of habeas corpus (if the contemnor is confined) or a petition for writ of
mandamus (if no confinement is involved), see Cadle, 50 S.W.3d at 671; however, because a
contempt order is not a final judgment, a remedy by appeal does not lie.” In re Office of Attorney
Gen. of Tex., 215 S.W.3d at 916. Thus, we must dismiss Russell’s appeal of the trial court’s denial
of his motion to hold Schriber in contempt for want of jurisdiction. See Norman, 692 S.W.2d
at 655; Marcus, 313 S.W.3d at 415; Hooper, 2011 WL 334198, at *1.
Attorneys’ Fee Awards
Russell first asserts that the trial court abused its discretion by awarding him only
$500.00 in attorneys’ fees in connection with a motion to compel discovery and for sanctions
that had been granted prior to the trial on the motion to modify the Agreed Order. The order on
Russell’s motion to compel discovery and for sanctions recited that “[r]easonable attorney’s fees
shall be awarded against [Schriber] and in favor of [Russell], in an amount to be determined at
later hearing or final trial.” Under the Family Code, in a SAPCR the trial court has discretion to
“render judgment for reasonable attorney’s fees and expenses and order the judgment and
postjudgment interest to be paid directly to an attorney.” Tex. Fam. Code § 106.002; Bruni v
Bruni, 924 S.W.2d 366, 368 (Tex. 1996) (award of attorneys’ fee is in trial court’s discretion).
An attorneys’ fee award in a suit affecting the parent-child relationship is discretionary with the
trial court. See id.; Lenz v. Lenz, 79 S.W.3d 10, 21 (Tex. 2002). Here, although Russell
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submitted evidence that he had incurred $3,602.00 in attorneys’ fees related to the motion to
compel discovery, the trial court awarded him $500. Without further explanation or supporting
authority, Russell asserts in his brief that this constituted an abuse of discretion. A court is not
required to award the amount requested by an attorney. See McFadden v. Bresler Malls, Inc.,
526 S.W.2d 258, 264 (Tex. App.—Austin 1975, no writ). In light of the deferential standard of
review of attorneys’ fee awards in SAPCRs, we cannot conclude on this record that the trial
court abused its discretion in awarding Russell $500.00 in attorneys’ fees related to his motion to
compel discovery. See Coburn v. Moreland, 433 S.W.3d 809, 841 (Tex. App.—Austin 2014, no
pet.); see also Lenz, 79 S.W.3d at 21. We overrule Russell’s challenge to the trial court’s award
of attorneys’ fees to him in the amount of $500.00 related to his motion to compel discovery.
Russell next asserts that the trial court abused its discretion by awarding Schriber
$6,659.10 in attorneys’ fees based on a motion for attorneys’ fees she filed after trial. After trial,
Schriber submitted a motion for an award of attorneys’ fees pursuant to Texas Family Code section
106.002. See Tex. Fam. Code § 106.002(a) (providing that trial court may order award of
attorneys’ fees and expenses in SAPCR). Russell moved to strike Schriber’s pleadings, asserting
that the motion “operates as a surprise” to him because a pre-trial order had precluded Schriber
from presenting expert witnesses at trial due to her failure to disclose any testifying experts in
response to Russell’s Rule 194 request for disclosure. See Tex. R. Civ. P. 194.2(f) (requiring
disclosure of information regarding testifying experts). The trial court denied Russell’s motion to
strike the pleading and awarded Schriber attorneys’ fees of $6.659.10.
On appeal, citing no authority, Russell asserts that the attorneys’ fee award
constituted an abuse of discretion because “there was no evidence to support the award.”
Schriber’s motion for attorneys’ fees, however, was supported by the detailed affidavit of her
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attorney in support of the requested attorneys’ fee award, along with billing records detailing the
services provided and amounts billed for each service. In light of the fact that evidence of
attorneys’ fees was presented to the trial court, we understand Russell’s argument to be that the
trial court erred in denying his motion to strike Schriber’s pleadings on the basis of unfair surprise.
Assuming, without deciding, that the court’s pre-trial order precluded Schriber
from presenting any expert testimony in support of a request for attorneys’ fees under section
106.002, the trial court impliedly modified that order by denying Russell’s motion to strike and
permitting Schriber to file her motion for attorneys’ fees and accompanying supporting evidence.
See Trevino v. Trevino, 64 S.W.3d 166, 170 (Tex. App.—San Antonio 2001, no pet.) (trial court
implicitly modified docket control order by overruling plaintiff’s motion to strike defendant’s
late-filed motion for summary judgment); Ocean Transp., Inc. v. Greycas, Inc., 878 S.W.2d 256,
262 (Tex. App.—Corpus Christi-Edinburg 1994, writ denied) (trial court impliedly modified
scheduling order by denying motion to strike expert witnesses and did not abuse its inherent right
to change or modify scheduling order); see also Wil-Roye Inv. Co. II v. Washington Mut. Bank,
FA, 142 S.W.3d 393, 401-02 (Tex. App.—El Paso 2004, no pet.) (trial court has inherent right to
change or modify interlocutory order until judgment on merits in case becomes final). Although
Russell asserted “surprise,” he does not claim that he did not receive adequate notice of and
opportunity to respond to Schriber’s motion for attorneys’ fees. See Trevino, 64 S.W.3d at 170.
Accordingly, we conclude that the trial court did not err in denying Russell’s motion to strike
Schriber’s motion for attorneys’ fees, that there was evidence to support the attorneys’ fee award,
and, consequently, the trial court did not abuse its discretion to award attorneys’ fees to Schriber
pursuant to Texas Family Code section 106.002. We overrule Russell’s challenge to the award of
attorneys’ fees to Schriber.
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CONCLUSION
For the foregoing reasons, we overrule Russell’s challenges to the trial court’s
modification order and affirm the provisions of the order addressing conservatorship, possession
and access to L.J.R., and child support. We dismiss for lack of jurisdiction Russell’s challenge to
the trial court’s denial of his motion to hold Schriber in contempt.
__________________________________________
Chari L. Kelly, Justice
Before Chief Justice Byrne, Justices Kelly and Theofanis
Affirmed in Part; Dismissed for Want of Jurisdiction in Part
Filed: November 8, 2024
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