in the Interest of J.O.A., a Child

Affirmed and Memorandum Opinion filed April 26, 2016.
In the
Fourteenth Court of Appeals
NO. 14-14-00968-CV
IN THE INTEREST OF J.O.A., A CHILD
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Cause No. 1999-44585
MEMORANDUM OPINION
This is an appeal from the trial court’s SAPCR1 order granting a
conservatorship and child support modification in favor of appellee A.A., the
father of J.O.A., a child. Appellant A.S.A., the mother of J.O.A., contends the trial
court erred by awarding custody to Father, denying Mother’s motion for new trial,
and denying Mother’s motion for continuance. Mother further argues that the
1
Under the Texas Family Code, a suit affecting the parent-child relationship or SAPCR
is defined as a suit “in which the appointment of a managing conservator or a possessory
conservator, access to or support of a child, or establishment or termination of the parent-child
relationship is requested.” Tex. Fam. Code Ann. § 101.032(a) (West 2014).
evidence was legally and factually insufficient to support the trial court’s
judgment. We conclude that the trial court did not commit any abuse of discretion
and therefore affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In August 1999, the Attorney General filed a petition to determine
parentage, conservatorship, and child support for J.O.A, born in February 1997. In
November 1999, the trial court signed an agreed order establishing the parent-child
relationship. Father and Mother were named joint managing conservators. Mother
was designated the conservator with the exclusive right to determine the child’s
primary residence. The child’s primary physical residence was with Mother, and
Father was awarded periods of possession and ordered to pay monthly child
support to Mother for the benefit of J.O.A.
In October 2012, Mother filed a petition to modify the parent-child
relationship.2 Mother sought increased child support based on a variance from the
child support guidelines. Mother also alleged that the child would require
substantial care and personal supervision because of a mental or physical disability
and would not be capable of self-support; Mother requested that support payments
continue after J.O.A.’s 18th birthday and be extended for an indefinite period.
Father answered and filed a counterpetition to modify the parent-child
relationship. Father asserted that J.O.A. would express to the trial court the child’s
preference of the person who would have the exclusive right to designate the
primary residence. Father requested that he be appointed as the person who has the
right to designate the primary residence of the child. Father alleged the previously-
2
In July 2012, the Office of the Attorney General filed a suit for modification of support
order. The Attorney General then filed a notice of nonsuit, which the trial court signed in
October 2012.
2
ordered child support should be decreased based on a variance from the guidelines.
The record reflects that Mother appeared pro se during the proceedings to
establish the parent-child relationship. During the modification proceedings,
Mother filed her petition to modify and entered into a mediated settlement
agreement by and through an attorney. Mother entered into a rule 11 agreement to
reset trial pro se. Mother later made additional pre-trial filings through a different
attorney.3
Trial was preferentially set for August 29, 2014. The record reflects that at
approximately 4:00 p.m. on August 28, 2014, someone with the law group with
which the different attorney was affiliated filed a cover letter supposedly attaching
a “Doctor’s Excuse of Absence on behalf of Petitioner’s Counsel for tomorrow’s
proceedings.” The record only contains the cover letter.
At the beginning of trial on August 29, 2014, counsel for Father identified
herself. The Assistant Attorney General announced present.4 Counsel for Mother
did not appear. Mother stated that she was a party but her “lawyer is not here” and
she “do[es] not know how to represent [her]self.” The record reflects:
THE COURT: For purposes of the record, the court received a call
from someone yesterday who would only identify themselves as a
personal assistant to a person who has filed pleadings in this case but
who has never entered an appearance as a lawyer, and that is the
person who purports to represent [Mother]. They were told that, in
order to call in with a medical need on a preferentially set trial, we
needed a letter from a doctor and specific details about what the issue
was, and we have received neither.
Because this is a preferentially set case, the court is proceeding
to trial.
3
This attorney also represents Mother on appeal.
4
In her brief, Mother claims that Father invited the Attorney General. The Assistant
Attorney General also appeared at the hearing on the motion for new trial.
3
Thank you folks. You can be seated.
[FATHER’S COUNSEL]: In the court there was something filed at
4:00 o’clock. We didn’t get notice of it. We just happen[ed] to be
looking online about 6:00 last night, but there is something from
opposing counsel that has been filed, but it does not detail anything,
Your Honor.
THE COURT: There is something from the [] Law Group that was
filed with the court, but it gives no details about what the situation is,
or why the person is incapable of participating in a preferentially set
trial, so the court is proceeding to trial.
In addition, the record reflects that the trial court denied Mother’s “oral
motion for continuance”:
[MOTHER]: Your Honor, I cannot do anything because I am not
representing myself.
THE COURT: Okay. Well you don’t have to participate, if you don’t
want to, but you’re the person who initiated the lawsuit.
[MOTHER]: Yeah, but my lawyer is sick.
THE COURT: Well your lawyer has never filed an appearance for
you. She filed some pleadings, but she has never entered an
appearance for you that I can tell.
[MOTHER]: Your Honor, we have been to the court like two or three
times, and it’s been moved, or changed, so this is my first time in this
place.
THE COURT: I don’t know what you’re asking me today.
[MOTHER]: What I am asking, Your Honor, if it can be reset because
I cannot represent myself, and my witnesses are not here because I
told them, you know, my lawyer is sick, and I can’t go alone.
THE COURT: [Father’s counsel], when was the motion to modify
filed?
[FATHER’S COUNSEL]: On, Your Honor, this was filed in 2012.
We are preferentially set. My Counterpetition was filed December of
2012. This was filed 10-10 of 2012. Ours was filed December 17th,
2012. After we received a copy of the motion to modify, we filed our
Counterpetition. This case has been on file. Opposing counsel and I
4
had put it on the preferentially set docket, and I represent to the court
that I have received no courtesy call, or anything from their office,
and we spoke to their office at least three times yesterday, and no one
in her office had advised us of anything like this.
THE COURT: So no one in your office, even though you talked, told
you she was sick or not going to be here?
[FATHER’S COUNSEL]: Nothing at all. And my paralegal spoke
with them, and she can testify to the court, if need be.
THE COURT: And the docket sheet indicates there has been a
number of hearings, including three discovery hearings. The
Petitioner herself has indicated that there have been a number of
hearings before the court. It is preferentially set. The oral motion for
continuance is denied.
Do you have any witnesses to call, ma’am?
[MOTHER]: No.
Father’s counsel called Father to testify. After Mother spoke out of turn, the
trial court admonished her: “You may not speak from counsel table. I will give
you a complete opportunity to testify in your own behalf, if you want to; although
you have told me you didn’t want to.” Mother then left the courtroom:
THE COURT: Let me ask you, [Father’s counsel], to—hang on just a
second. For purposes of the record, the Petitioner left the courtroom.
So that the record is clear as to why the court proceeded in this
manner in the absence of counsel, there are in excess of 100 entries
since the date of filing of this motion to modify in this case. This has
been a contentious case, there have been a number of appearances,
and at l[e]ast one reset of a preferentially set trial.
The court believes in the best interest of the child that, under
the circumstances, it must proceed to trial in this case, despite our
request yesterday, through the coordinator of counsel for the
Petitioner, that the court, at least, be provided with very specific
information as to what the medical issue is and what the
circumstances were that would justify a reset of a preferential setting.
The court simply got a one-page note that basically says she
can’t work until September the 1st. There is no other indication on
5
that correspondence to the court as to what the nature is of the medical
issue and why that medical issue would prevent her from participating
in this preferentially set trial when, as is testified to one of the parties,
was already here from out of state.
Additionally, no motion for continuance was on file, or filed
even in an emergency situation, no representative of the lawyer was
sent to the court to ask the court for a continuance, no courtesy call
was made to either of the other two lawyers in this case letting them
know that she did not intend to appear.
So the court feels compelled again, based on the circumstances
and best interest of the child, to move forward on this trial and does
want the record to reflect that the Petitioner has left the courtroom
and, it appears, taken her things.
Trial continued. Mother later returned to the courtroom.
Father provided testimony regarding Mother’s “frequent” moves,
approximately eight moves since 2006. Father stated that this “instability” and
Mother’s “alienating [him] from the child” was causing J.O.A.’s “behavior
problems.” Father described multiple instances where Mother denied Father his
visitation rights. Father presented several unclaimed letters he wrote to Mother
regarding his failed attempts to visit the child. Father also wrote the Office of the
Attorney General regarding his inability to contact Mother and visit J.O.A. Even
after the parties entered into a mediated settlement agreement in June 2013 and
Father arranged airplane tickets for J.O.A. to visit him in Boston, Mother did not
allow the visit. J.O.A. graduated from high school in May 2014, and Father started
a college fund for him and anticipated helping him attend college in Boston.
Father presented Mother’s 2011 and 2012 tax returns and testified regarding the
attorney’s fees he had incurred. Father rested.
The trial court then offered Mother the opportunity to cross-examine Father,
but she stated that she could not continue without her lawyer. The trial also asked
Mother whether she wished to make a statement to the court; she again stated she
6
could not continue without her lawyer. Father’s counsel testified as to her
reasonable and necessary attorney’s fees. The trial court asked Mother whether
she had any questions of Father’s counsel, and she stated she could not continue
without her lawyer.
The trial court signed an order on September 5, 2014, granting Father’s
requested modification in the best interest of the child. The SAPCR order
appointed Father sole managing conservator of J.O.A. (who had not yet turned 18)
and appointed Mother possessory conservator. Mother was ordered to pay
monthly child support to Father in accordance with the guidelines and attorney’s
fees to Father’s counsel. The trial court also ordered Mother’s income to be
withheld for child support and terminated the original order withholding Father’s
income.
On October 1, 2014, Mother filed a motion for new trial, as well as a motion
to terminate the wage withholding order. Mother alleged that she has a meritorious
defense and that Father would not be injured by the granting of a new trial. Mother
included various affidavits concerning the events of August 27 through 29. Father
filed a response in which he alleged that granting a new trial would injure him.
Father further alleged that Mother’s counsel failed to appear, never filed a motion
for continuance, never provided a sufficient doctor’s note detailing why she could
not appear for trial as requested by the trial court, and failed to have another
attorney appear in her place. After a hearing, the trial court denied the motion for
new trial. Mother timely appealed.
II. ANALYSIS
A. Conservatorship
In her first issue and as part of her fourth issue, Mother argues that the trial
7
court erred with regard to its determination of custody. Because J.O.A. turned 18
in February 2015, these portions of Mother’s appeal are moot. See Tex. Fam.
Code Ann. § 101.003 (West 2014); In re D.M., No. 04-14-00858-CV, 2015 WL
3398379, at *1 n.1 (Tex. App.—San Antonio May 27, 2015, no pet.) (mem. op.);
K.E.M. v. Tex. Dep’t of Family & Protective Servs., No. 03-14-00753-CV, 2015
WL 1143016, at *1 (Tex. App.—Austin Mar. 11, 2015, no pet.) (mem. op.); In re
E.H., No. 2-07-343-CV, 2008 WL 2404490, at *1 & n.2 (Tex. App.—Fort Worth
June 12, 2008, no pet.) (mem. op.) (per curiam).
Beyond conservatorship, however, the trial court’s order implicates financial
obligations that accrued prior to the child’s 18th birthday, including attorney’s fees
and the amount of previously-accrued child support. Therefore, a live controversy
remains to such extent, and we proceed to analyze the remainder of Mother’s
issues. See Medrano v. Zapata, No. 03-12-00131-CV, 2013 WL 6921500, at *4
(Tex. App.—Austin Dec. 31, 2013, no pet.) (mem. op.).
B. Motion for new trial
In her second issue, Mother contends that the trial court abused its discretion
when it denied her motion for new trial.
Mother first argues that Alexander v. Smith, 49 S.W. 916 (Tex. Civ. App.—
Galveston 1899, no writ), controls. However, Alexander is distinguishable. There,
plaintiff’s counsel, who had been seriously ill, in another county, and unable to
come to court when the case was called for trial, filed a motion the very next day to
set aside the judgment dismissing plaintiff’s personal injury lawsuit for want of
prosecution. Id. at 916. Plaintiff also filed a motion for new trial; the defendant
did not dispute the allegations contained in the motion. Id. at 917. Moreover, in
finding the trial court abused its discretion in overruling the motions, the court of
appeals found it particularly significant that, if the cause were not reinstated, “the
8
statute of limitations would blot it out forever.” Id.
Here, Mother filed her motion for new trial more than a month after
Mother’s counsel did not appear at the trial. Father responded, disputing Mother’s
allegations surrounding Mother’s counsel’s absence. Finally, Mother filed her
petition to modify in large part to obtain support beyond J.O.A.’s 18th birthday.
Nothing prevents Mother from filing another suit for modification and prevailing if
she is able to meet her burden to show the circumstances have materially and
substantially changed based on a mental or physical disability that existed or the
cause of which was known to exist on or prior to J.O.A.’s 18th birthday. See Tex.
Fam. Code Ann. §§ 154.001(a)(4), 154.302, 156.401(a)(1) (West 2014 & Supp.
2015); In re J.M.W., 470 S.W.3d 544, 550 (Tex. App.—Houston [14th Dist.] 2014,
no pet.) (“A suit to obtain support for an adult disabled child may be filed at any
time, regardless of the child’s age, and may be filed as a suit for modification as
provided by chapter 156.” (citing Tex. Fam. Code Ann. § 154.305(a)(1), (c)).
Next, Mother argues that she meets the requirements set out in Craddock v.
Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939), entitling her to a
new trial. Assuming without deciding that the Craddock test applies in these
circumstances where Mother appeared but Mother’s counsel failed to appear for a
preferential trial setting and a bench trial on the merits then took place,5 we cannot
conclude that the trial court abused its discretion by denying Mother’s motion for
new trial because Mother failed to satisfy the first element of Craddock.
5
Courts have held that Craddock does not apply where the party’s attorney—but not the
party—appears and a trial takes place on the merits because there is no default. See LeBlanc v.
LeBlanc, 778 S.W.2d 865, 865 (Tex. 1989) (per curiam); C.B. v. Tex. Dep’t of Family &
Protective Servs., No. 03-12-00833-CV, 2013 WL 1567469, at *2 (Tex. App.—Austin Apr. 11,
2013, no pet.) (mem. op.); Velasco v. Ayala, 312 S.W.3d 783, 791 (Tex. App.—Houston [1st
Dist.] 2009, no pet.); In re K.C., 88 S.W.3d 277, 279 (Tex. App.—San Antonio 2002, pet.
denied).
9
Under the Craddock test, a party moving for new trial following a no-answer
or post-answer default judgment must satisfy three elements: (1) the failure to
answer or appear was not intentional or the result of conscious indifference but was
due to a mistake or accident; (2) the motion for new trial sets up a meritorious
defense; and (3) the motion is filed at such time that granting a new trial would not
result in delay or otherwise injure the plaintiff. Director, State Employees
Workers’ Compensation Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994) (citing
Craddock, 133 S.W.2d at 126). We do not disturb the trial court’s ruling on a
motion for new trial in the absence of a showing that the court abused its
discretion. Id.; In re J.R. III, No. 05-14-00338-CV, 2015 WL 4639625, at *2 (Tex.
App.—Dallas Aug. 5, 2015, no pet.) (mem. op.) (“A trial court abuses its
discretion by denying a motion for new trial if the defaulting party satisfied all
three elements of the Craddock test.”). We “look to see if the trial judge abused
his discretion in denying [the defaulting party’s] motion for new trial in view of the
record before him at that time.” Freeman v. Pevehouse, 79 S.W.3d 637, 646 (Tex.
App.—Waco 2002, no pet.) (internal quotation marks omitted).
Under the first prong of the Craddock test, the trial court considers the
knowledge and acts of the defaulting party to determine whether the failure to
appear was due to intentional disregard or conscious indifference. See Evans, 889
S.W.2d at 269. If, based on a review of the entire record, the facts set out in the
motion for new trial and supporting affidavits are controverted, this determination
is a fact question for the trial court. See id.; Litman v. Litman, 402 S.W.3d 280,
286 (Tex. App.—Dallas 2013, pet. denied).6 In acting as fact-finder, the trial court
6
Mother contends that Father failed to controvert any of the allegations in her motion for
new trial and her affidavit. There is no requirement, however, that Mother’s affidavits “be
controverted only by counter affidavits or that the trial court ignore any other evidence.”
Freeman, 79 S.W.3d at 646. Although Father did not file any counteraffidavits, he particularly
disputed in his response whether Mother’s counsel provided a sufficiently detailed doctor’s note
10
resolves conflicts in the evidence and is the sole judge of the credibility of the
witnesses and the weight to be given to their testimony. See Litman, 402 S.W.3d at
286; Freeman, 79 S.W.3d at 646.
Although not expressly stated in her motion for new trial, Mother takes the
position that her counsel’s failure to appear was neither intentional nor the result of
conscious indifference. Conscious indifference includes “the failure to take some
action which would seem indicated to a person of reasonable sensibilities under the
same or similar circumstances.” Young v. Kirsch, 814 S.W.2d 77, 81 (Tex. App.—
San Antonio 1991, no writ). A trial court can reasonably believe, based on
contradictory evidence, that there was intentional or consciously indifferent
conduct on the part of the defaulting party instead of an accident or mistake. See
Litman, 402 S.W.3d at 286 (citing Young, 814 S.W.2d at 81); Freeman, 79 S.W.3d
at 647.
As reflected in the affidavits attached to Mother’s motion, Mother’s counsel
began feeling poorly on August 27, two days prior to the preferential trial setting,
during trial preparation with Mother. That evening, Mother’s counsel knew she
was having another “unbearable” “fibroids attack” that “always keeps her off her
feet.” Mother’s counsel usually treats these attacks with bed rest.
On August 28, Mother’s counsel did not come into work for trial
preparation. She did not inform her staff about her condition. Mother’s counsel
went to a medical clinic. She did not meet with Mother or Mother’s witnesses.
Father’s counsel’s paralegal or assistant called Mother’s counsel’s office about
2:30 p.m. regarding a fax. Mother’s counsel’s paralegal assigned to Mother’s case
took the call but did not tell Father’s counsel’s paralegal anything about Mother’s
counsel’s illness because he did not know.
describing why she could not appear as requested by the trial court.
11
After she was put on bed rest and left the clinic, Mother’s counsel directed
her “personal assistant” to obtain a doctor’s note, e-file it, contact Father’s counsel
and the trial coordinator, and get one of Mother’s counsel’s colleagues to stand in
for her and request a continuance. Mother’s counsel’s assistant obtained a doctor’s
note, which Mother’s counsel’s paralegal e-filed at 4:00 p.m. The note “did not
contain details about her illness given that her assistant was going to ‘e-file’ it and
not hand-deliver it to the Judge.” Mother’s counsel’s assistant attempted but was
unable to reach Father’s counsel by phone. The assistant called the trial
coordinator to inform her that Mother’s counsel would not appear in court. The
trial coordinator “insisted” on more details about the illness. The assistant did not
know the details and directed the coordinator to call Mother’s counsel’s doctor.
The assistant called several family law practitioners but could not confirm that
anyone would appear on behalf of Mother to request a continuance. The assistant
spoke with Mother’s counsel’s husband and informed him that the trial coordinator
wanted details about the illness and that he was unable to get another lawyer to
appear. Mother’s counsel’s husband called another lawyer, but he was unable to
appear.
On August 29, after 8:00 a.m., the husband spoke with a “lady in Court 257”
about his wife’s fibroids attack and her inability to attend trial and to find a lawyer
to stand in for her. After trial had begun, Mother called her counsel and awakened
her at about 10:00 a.m. Mother’s counsel then called the trial coordinator and
attempted to provide details about her “fibroid issues.” The coordinator stated that
“all [Mother’s counsel] put on [the filing] was you weren’t going to be here.” The
coordinator informed Mother’s counsel that it was “up to” the judge to consider
what she had filed and that the judge had proceeded with the trial.
At trial, Mother told the trial court multiple times that her lawyer was “sick.”
12
Father’s counsel indicated that the document filed at 4:00 p.m. on August 28 did
“not detail anything.” The trial court stated that the filing gave no details about the
situation and did not explain “why the person is incapable of participating in a
preferentially set trial.” Father’s counsel also informed the court that she received
no courtesy call and was not advised that Mother’s counsel was sick or would not
appear despite her staff speaking with Mother’s counsel’s office at least three times
on August 28. The trial court further stated that, despite its request to Mother’s
counsel’s “coordinator,” the only correspondence received failed to provide
specific information as to the medical issue and circumstances to justify resetting a
preferential trial. The court further noted that no emergency motion for
continuance was filed, no representative of Mother’s counsel was sent to request a
continuance, and no courtesy calls were made to the other lawyers on the case.
At the hearing on the motion for new trial, the trial court inquired why
Mother’s counsel did not contact Father’s counsel or the Attorney General’s office
early in the day on August 28 to inform them “there might be some issue” when
she knew that trial had been preferentially set for several months and when she
knew that Father was coming in from Massachusetts. Mother’s counsel protested
that she “was in great pain, [and] was in no shape or form to call anybody.” The
trial court also continued to express its concerns related to the lack of details about
Mother’s counsel’s “sickness”:
The only thing the court was tendered on the day of trial was a note
dated the day before that says that you were seen for evaluation and
treatment. There’s all kind of blank spaces for all kinds of
explanations, there's nothing on there.
[MOTHER’S COUNSEL]: On that day, if the court saw Exhibit
Number 10, and I will direct the court to look at that now. [My
doctor] said me called—my assistant was e-filing—
THE COURT: Stop. This is a Motion for New Trial deciding whether
13
or not we acted appropriately on August 29th, and all I have on
August 29th was your letter, that is basically blank, that says you were
seen for evaluation and treatment of some unidentifiable issue, I
guess.
[MOTHER’S COUNSEL]: And I didn’t write that letter, Your Honor.
THE COURT: I understand you didn’t, nor did you file a Motion for
Continuance.
[MOTHER’S COUNSEL]: I didn’t know it was going to happen, I
wasn’t planning to not appear.
The trial court specifically noted that nobody from Mother’s counsel’s office
appeared to “say, oh, judge, by the way, we have all this information that we didn’t
want to e-file.”
There is no dispute that Mother’s counsel was aware of the August 29
preferential trial setting. More than a day before this preferential trial setting,
Mother’s counsel also knew that she was suffering from a fibroids attack—which
likely would result in “bed rest”—but she failed to inform her own staff, much less
Father’s counsel, about this issue even though she knew Father was coming in
from Boston. Even after the trial court specifically requested more details
regarding Mother’s counsel’s inability to appear that would justify resetting the
preferential trial setting, she failed to provide those details either in writing or
through the appearance of a representative.
We conclude that the trial court as fact-finder reasonably could have
determined that the cause of Mother’s counsel’s failure to appear was conscious
indifference. See Litman, 402 S.W.3d at 286 (citing Young, 814 S.W.2d at 81);
Freeman, 79 S.W.3d at 647. Therefore, the trial court did not abuse its discretion
in denying Mother’s motion for new trial as it reasonably could have found that
Mother failed to satisfy the first prong of the Craddock test. See In re J.R. III,
2015 WL 4639625, at *4 (refusing to “second guess” trial court’s discretion to
14
resolve fact question on conscious indifference).7
We overrule Mother’s second issue.
C. Motion for continuance
In her related third issue, Mother argues that the trial court erred by not
granting a continuance.
Whether or not to grant a continuance is a question for the trial court’s
discretion. Litman, 402 S.W.3d at 286; see Tex. R. Civ. P. 253 (trial court has
discretion to continue trial for absence of counsel); Waste Water, Inc. v. Alpha
Finishing & Developing Corp., 874 S.W.2d 940, 942 (Tex. App.—Houston [14th
Dist.] 1994, no pet.) (citing rule 253). If a motion for continuance is not verified or
supported by affidavit, we presume that the trial court did not abuse its discretion
by denying the motion for continuance. See Finley v. Finley, No. 02-11-00045-
CV, 2015 WL 294012, at *11 (Tex. App.—Fort Worth Jan. 22, 2015, no pet.)
(mem. op.) (per curiam) (citing Tex. R. Civ. P. 251); Waste Water, 874 S.W.2d at
941–42 (no abuse of discretion where motion for continuance recited absent
counsel was too ill to fly for appearance and attached clinic documents but failed
to include affidavit). It is undisputed that Mother’s motion for continuance was
“oral”; she did not file a verified motion for continuance or one supported by
affidavit.
Mother acknowledges these requirements but argues that the trial court
should have waived them here. Mother primarily relies on Dolgencorp of Texas,
7
Although in the second issue within the issues-presented portion of her brief Mother
also states that the trial court erred in denying her motion to terminate wage withholding order,
she fails to provide any argument regarding this subissue in her argument section, much less cite
or analyze any legal authority. By failing to adequately brief this subissue, Mother has waived it
on appeal. See Tex. R. App. P. 38.1; Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928,
931–32 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
15
Inc. v. Lerma, 288 S.W.3d 922 (Tex. 2009) (per curiam), and Aero Mayflower
Transit Co. v. Spoljaric, 669 S.W.2d 158 (Tex. App.—Fort Worth 1984, writ
dism’d) (op. on reh’g). However, the Supreme Court of Texas in Dolgencorp and
the Fort Worth court of appeals in Aero Mayflower Transit still required the absent
counsel to meet Craddock. Dolgencorp, 288 S.W.3d at 925–26; Aero Mayflower
Transit, 669 S.W.2d at 160. We already have determined that Mother failed to
meet the first prong of Craddock.8
Moreover, we do not agree with Mother that Farmers’ Gas Co. v. Calame,
262 S.W. 546 (Tex. Civ. App.—Waco 1924, no writ), compels a different result
under these circumstances. Cf. id. at 547–48, 550 (trial court abused discretion in
overruling motions for continuance and for new trial in circumstances where
absent defendant’s counsel notified opposing counsel of conflicting trial
engagements, opposing counsel indicated it was amenable to reset, and absent
counsel sent representative to present his verified motion for continuance to trial
court).
Finding no abuse of discretion, we overrule Mother’s third issue.
8
Unlike here, in Dolgencorp and in Aero Mayflower Transit, the absent counsel met his
burden to show that the failure to appear was not intentional or the result of conscious
indifference. See Dolgencorp, 288 S.W.3d at 927–29 (counsel’s associate informed original trial
court in person at docket call about counsel’s potentially conflicting preferential trial setting in
another county; after case was transferred, associate again informed new trial court in person;
new trial court had associate pick a jury but left impression that associate would not have to try
case, that court would work around attorneys’ schedules, and that jury would be “on call” for
possible later setting; and county judge and trial coordinator, as well as associate and counsel’s
staff, called new trial court to say that counsel’s other trial would not be concluded in time); Aero
Mayflower Transit, 669 S.W.2d at 160 (counsel was appearing in conflicting criminal trial,
opposing counsel had been placed on notice about conflicts, and secretary who was supposed to
call and inform trial court about conflict and obtain reset mistakenly thought trial setting was
later in morning than it actually was).
16
D. Child support and attorney’s fees
In her fourth issue, Mother contends that the evidence is legally and
factually insufficient to support the trial court’s judgment. Mother further argues
that the judgment was a result of Father’s “misrepresentations at trial, . . .
combined with the erroneous order submitted to court by [Father’s] counsel.”
Mother fails to specify any such alleged “misrepresentations.” Mother argues that
the judgment contains erroneous findings that she announced ready for trial, that
no record was made, and that Father’s monthly net resources are $0.
The trial court retains broad discretion in making the equitable decision of
whether to modify a prior support order. Friermood v. Friermood, 25 S.W.3d 758,
760 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Accordingly, on appeal we
will not disturb the trial court’s ruling on a support order absent a clear abuse of
discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam);
Friermood, 25 S.W.3d at 760. Given such a standard, the legal and factual
sufficiency of the evidence are not to be considered as independent grounds of
error, but only as relevant factors in assessing whether the trial court did in fact
abuse its discretion. Hardin v. Hardin, 161 S.W.3d 14, 19 (Tex. App.—Houston
[14th Dist.] 2004, no pet.). An abuse of discretion only occurs when the trial court
acts without reference to any guiding rules or legal principles. Worford, 801
S.W.2d at 109; see Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–
42 (Tex. 1985). If there is some probative and substantive evidence to support the
judgment, then there is no abuse of discretion. Holley v. Holley, 864 S.W.2d 703,
706 (Tex. App.—Houston [1st Dist.] 1993, writ denied). The best interest of the
child should be the trial court’s primary consideration in determining whether to
modify child support. See Tex. Fam. Code Ann. § 156.402(a) (West 2014).
Here, in his counterpetition, Father requested modification of child
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support—a decrease in the amount of his support payments previously ordered. In
addition, at trial, Father submitted a proposed parenting plan requesting that
Mother pay monthly child support of $500.00 to him. He also submitted Mother’s
2011 and 2012 tax returns.
We conclude that there is some probative and substantive evidence to
support the trial court’s order with regard to ordering and setting the amount of
child support for J.O.A. The Family Code allows a trial court to modify a support
order if circumstances have “materially and substantially changed” since the date
of the order’s rendition. Id. § 156.401(a)(1). Without reviewing the propriety of
the modification order as to conservatorship because that portion of the appeal is
moot, such a change in the child’s conservatorship and primary residence would
constitute a material and substantial change, which the trial court could have
considered in modifying the child support provisions. See In re V.L.K., No. 02-10-
00315-CV, 2011 WL 3211245, at *3 (Tex. App.—Fort Worth July 28, 2011, no
pet.) (mem. op.) (“[A] change in custody of a child is, in and of itself, a material
and substantial change.”); In re A.M.W., 313 S.W.3d 887, 891 (Tex. App.—Dallas
2010, no pet.) (same); In re Doe, 917 S.W.2d 139, 142 (Tex. App.—Amarillo
1996, writ denied) (when change in custody occurs, subsequent to agreed decree
providing for conservatorship and support for child’s benefit, obligation to
continue making support payments to former custodial parent is excused);
Labowitz v. Labowitz, 542 S.W.2d 922, 925 (Tex. Civ. App.—Dallas 1976, no
writ) (father’s appointment as managing conservator of children constituted
material and substantial change requiring reallocation of financial obligations).
Moreover, if the amount of ordered child support does not substantially
conform with the child support guidelines, the trial court may modify the order to
conform with the guidelines if the modification is in the best interest of the child.
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Tex. Fam. Code Ann. § 156.402(b) (West 2014). A child support payment in
accordance with the guidelines is presumed to be in the best interest of the child.
Id. § 154.122(a) (West 2014). Mother does not dispute that there was sufficient
evidence of her own monthly net resources or that the trial court’s award of
monthly support substantially complies with the guidelines. See id. § 154.125
(West 2014 & Supp. 2015).
Any errors with regard to the trial court’s findings do not render the
judgment reversible because such errors probably have not caused the rendition of
an improper judgment or prevented Mother from adequately presenting her appeal.
See Tex. R. App. P. 44.1(a); In re H.D.C., 474 S.W.3d 758, 769 (Tex. App.—
Houston [14th Dist.] 2014, no pet.) (“Error is harmful if it prevents an appellant
from properly presenting a case to the appellate court.”). This court has reviewed
Mother’s challenges to the trial court’s denials of her motion for continuance and
her motion for new trial based on the trial record. With regard to the $0 finding, a
trial court is not required to provide a finding on the amount of the obligee’s
monthly net resources where no party requests it and the amount of support
ordered does not vary from the amount computed by applying the guidelines. See
Tex. Fam. Code § 154.130(a) (West 2014). On this record, which sufficiently
supports the order that Mother pay Father monthly support and setting the amount
of such support in substantial compliance with the guidelines, any error with regard
to making this finding was harmless. See Walker v. Walker, No. 02-13-00229-CV,
2014 WL 2619147, at *4 (Tex. App.—Fort Worth June 12, 2014, pet. denied)
(mem. op.); Friermood, 25 S.W.3d at 761.
Finally, we consider whether the trial court abused its discretion in ordering
Mother to pay attorney’s fees to Father’s counsel. The trial court enjoys broad
discretion in determining whether to award attorney’s fees in a SAPCR. See Tex.
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Fam. Code Ann. § 106.002 (West 2014); Bruni v. Bruni, 924 S.W.2d 366, 368
(Tex. 1996); In the Interest of J.M.W., 470 S.W.3d at 549. Testimony from Father
and Father’s counsel indicated that the total in attorney’s fees was approximately
$35,000 and Father still owed his counsel about $14,000. Father submitted a
billing statement for $22,538.86 in attorney’s fees reflecting that he had paid his
counsel $15,000 and owed a balance of $7,538.86. In light of the record before the
trial court and the deferential standard of review, we cannot conclude that the trial
court abused its discretion by awarding Father’s counsel $7,500.00 in attorney’s
fees.9
We overrule Mother’s fourth issue.
III. CONCLUSION
Accordingly, we affirm the trial court’s judgment.
/s/ Marc W. Brown
Justice
Panel consists of Justices Boyce, Busby, and Brown.
9
Mother does not dispute the reasonableness or necessity of Father’s attorney’s fees.
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