Texas Divorce Attorney Blog
Generally, there must be a material and substantial change in circumstances to justify a modification of a Texas custody order. An appeals court recently considered whether a father judicially admitted the existence of a material and substantial change when he objected to the modification sought by the mother, but petitioned, in the alternative, for different modifications.
Mother Files Modification Suit After Job Offer
Under a prior order, the parents were appointed joint managing conservators with the mother being awarded the exclusive right to designate the child’s primary residence in Texas. The mother later received a job offer in Colorado Springs and petitioned to expand the geographic restriction on their child’s primary residence (and, thus, the mother’s residence).
The father specifically denied that any “material and substantial changes in circumstances” had occurred or that the mother’s requested modifications were in the child’s best interest. He filed a counterpetition to change his possession and access and further limit the geographic restriction on their child’s primary residence. However, the father only sought these changes on the condition the court disagreed with him and actually found that there was a material and substantial change in circumstances warranting the mother’s requested modification. The trial court found, however, that he had judicially admitted the existence of a material and substantial change by filing the counterpetition, despite pleading in the alternative.
The trial court ultimately modified the geographic restriction on the child’s primary residence, just as the mother had requested, and also ordered the father to pay child support, even though the mother had not requested it. The father appealed.
Father Argues No Judicial Stipulation – Court of Appeals Agrees
On appeal, the father argued the trial court had erred in finding a judicial admission when his requests were merely conditional. A party’s factual assertions in a pleading may be a judicial admission, but the admission must be clear and unequivocal. Pleadings in the alternative, however, are not judicial admissions. The language in question stated “if the court finds that the circumstances . . .have materially and substantially changed, then . . .” The appeals court found this portion of the pleading was in the alternative and not “clear and unequivocal.” It therefore was not a judicial admission. The appeals court further noted the father expressly denied a change in circumstances in his answer. The appeals court therefore found that the trial court had erred in finding that the father had judicially admitted to a material and substantial change in circumstances.
The father further argued, even if the trial court had not considered his pleading a judicial stipulation, there was also insufficient evidence supporting the existence of a material and substantial change. The only purported change in circumstances was the mother’s job offer.
The Supreme Court of Texas had previously found that a father moving from one state to another for a better job did not constitute a material and substantial change. More recent case law suggests moving for a better job may be a factor in the analysis. The appeals court noted the trial court needed sufficient evidence to determine the opportunity was a substantial or material improvement before it could modify the restriction.
Court of Appeals Finds Insufficient Evidence, As Well
The trial court found the job “would improve [the mother’s] financial situation and ability to provide a better standard of living . . .” The appeals court noted the only evidence was the job offer. The offer was for a $95,000 annual salary and a $5,000 signing bonus, plus the potential for annual raises. The mother testified this would allow her to purchase a home, save for the child’s college, and eventually buy him a car, without needing a second job. Her old job in Texas paid $75,000 per year and she also worked as a wedding photographer. The appeals court noted the record did not include her earnings from the wedding photography or any information on how that job affected her time.
The appeals court noted that, although the new job offered a difference in salary and a signing bonus, it would require the mother to move to Colorado Springs. The court could not infer the difference in income would be a material and substantial economic benefit without considering the potential difference in cost of living between the two areas. No evidence of living, educational, or work expenses was presented. The appeals court also noted that Colorado, unlike Texas, has a state income tax. The mother would also be responsible for travel expenses.
Because the trial court did not have evidence of the costs of living in both areas, travel expenses, and additional income tax, the appeals court found its finding the job would improve the mother’s financial situation and standard of living was just speculation.
The trial court considered other factors. Colorado schools were ranked higher than Texas schools. The appeals court noted however, that the rankings were based on an average, but the child would be going to a specific school. The mother said the school he would attend in Colorado was ranked 11th in the city, but she did not provide the ranking for the school he attended in Texas.
The appeals court found the presence of a support system did not support a material difference because the child had family in both locations.
The appeals court noted there was no evidence of the extent of the mother’s efforts to find employment in Texas. The appeals court also pointed out the geographic restriction, which she had agreed to just months before moving for the modification, allowed her to live anywhere in Texas.
The appeals court found that there was insufficient evidence to support a reasonable determination there was a material and substantial change in circumstances since the divorce that justified expanding the geographic restriction. The trial court abused its discretion in modifying the restriction.
Trial Court Also Erred in Ordering Child Support
The father also argued the trial court erred in ordering child support when the mother had not requested it. Under the Texas Rules of Civil Procedure, the court’s judgment is required to conform to the pleadings and a party generally cannot be granted relief if there are not pleadings supporting it. Tex. R. Civ. P. 301. Furthermore, the mother had expressly disclaimed any interest in child support. The trial court therefore erred in awarding child support.
The appeals court reversed the modification order and reinstated the previous order.
Call Attorneys Who Understand the Law
In this case, the conditional language in the father’s counterpetition prevented the court from finding a judicial admission. The experienced Texas child custody attorneys at McClure Law Group have a thorough understanding of family law and procedure. If you are facing custody issues, call set up a consultation by calling 214.692.8200.