Texas Divorce Attorney Blog
Generally, to obtain modification of a Texas custody or child support order, a parent must show that there has been a material and substantial change in circumstances since the prior order. Texas courts have held that a parent alleging a material and substantial change of circumstances in their counter-petition has judicially admitted the existence of a material and substantial change in circumstances. In a recent case, a mother appealed an order granting the father’s counterpetition request for modification after granting summary judgment against her modification petition.
Proceedings
The parties got divorced in 2017 and entered into a mediated settlement agreement (“MSA”). The MSA named the parties joint managing conservators of their child and placed a geographic restriction of Lubbock County on the child’s residence. It stated that if either party moved out of the county, the parent who remained would get the exclusive right to designate the child’s residence in Lubbock County.
The mother got married again and moved to Indiana in September 2020. The father stayed in Lubbock County. The mother petitioned for modification giving her the right to designate the child’s primary residence with no geographic restriction and additional child support.
The father subsequently filed his own modification motion to designate his residence as the point of surrender and return of the child, require the mother to pay travel costs and accompany the child on any flights, grant him the exclusive right to enroll the child in school and make medical and psychological decisions, and modify the child support and medical support payments.
The father filed a motion for summary judgment on both no-evidence and traditional grounds. He alleged the mother did not have evidence of a material and substantial change. The mother provided evidence, including an unsworn declaration, and argued the father had judicially admitted in his own counter-petition that there was a material and substantial change in circumstances and that modification was in the child’s best interest. The trial court issued a letter to the parties indicating it granted the father’s motion for summary judgment and directed the father’s attorney to draft an order, though there was no written order in the record reflecting the letter.
In a pretrial hearing, the court stated it had granted the father’s summary judgment motion, so the only matter to be heard was the allocation of increased expenses related to the mother’s relocation.
The court signed a final order allocating to the mother most of the increased expenses the father incurred as a result of her relocation. In its findings of fact and conclusions of law, the court estimated the travel time between the mother’s home and the father’s home by car was about 17 hours, meaning the exchange location would not be feasible during the school year. The court also found it was not feasible or in the child’s best interest for the child to fly alone. The court further found the distance increased expenses and the child’s maternal grandparents could pay for his transportation. The court concluded the mother was not denied possession and access and that modification was in the child’s best interest. The court determined that increased travel expenses constituted a material and substantial change and modification was in the child’s best interest.
Judicial Admission
The mother appealed, arguing the father judicially admitted the existence of a material and substantial change of circumstances and that modification was in the child’s best interest.
In his counter-petition, the father alleged there was a material and substantial change of the circumstances of the child, a conservator, or affected party since the date of the MSA. In making that allegation in his pleading, he judicially admitted an element of the mother’s petition and satisfied her burden to produce evidence of a material and substantial change in circumstances to survive summary judgment.
The father also alleged in his summary judgment motion that there was no evidence modification of conservatorship was in the best interest of the child. The mother provided evidence, including an unsworn declaration that addressed some of the Holley factors for determining the best interest of the child. She stated she and her husband had built a new home that gave each child their own space; she was home every night with the children because her job did not require travel; she had family nearby; she had a flexible schedule that let her take the children to and from school, attend their events, and help with their homework and child care; the child told her he did not feel safe with the father; and the child would not be able to have frequent contact with his siblings if he lived in Lubbock. There was no objection to this declaration. The appeals court concluded this evidence constituted more than a scintilla of evidence that the modification was in the child’s best interest. The appeals court concluded the trial court erred in granting summary judgment.
The appeals court also concluded the court’s error was not harmless. The trial court stated during the pretrial hearing that the mother’s motion was “concluded” and therefore did not allow her to present evidence related to her motion at the final hearing. The court also ruled that there was no need for a jury trial as requested by the mother after the summary judgment.
The appeals court reversed the trial court’s order and remanded the case for a new trial.
Contact McClure Law Group
This case illustrates the difficulty in challenging the existence of material and substantial change in circumstances while also seeking a modification. Whether you are seeking or opposing a modification, a skilled Texas child custody attorney can help. Call 214.692.8200 to set up a consultation with McClure Law Group.
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