A Change Must Be Material and Substantial

Considine v. Considine, 726 S.W.2d 253 

Court of Appeals of Texas, Third District, Austin

March 4, 1987, Decided ; March 4, 1987, Filed

No. 14,719

Reporter: 726 S.W.2d 253 | 1987 Tex. App. LEXIS 6737

Thomas P. Considine, Appellant, v. Deborah A. Considine, Appellee

Prior History: 

 [1]  FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT, NO. 98,573-A, HONORABLE JACK W. PRESCOTT, JUDGE.

Core Terms: modified, conservatorship, prior order, district court, appointment, movant, divorce, motion to modify, confessed, rendition

Case Summary

Procedural Posture

Appellant ex-husband, sought to set aside a default judgment rendered by the District Court of Bell County, 264th Judicial District (Texas), which modified conservatorship and support provisions in a previous order. Appellant asserted that the order modifying conservatorship and support was supported by no evidence or insufficient evidence.

Overview

After her divorce, appellee ex-wife filed a motion to modify child support obligations and visitation rights. Appellant ex-husband failed to answer this motion and the trial court rendered judgment removing him as managing conservator of the children, and ordering him to pay $ 250 per child, per month, in support payments. Appellant sought to set aside this default judgment on the grounds that the order modifying conservatorship and support payments were not supported by evidence or, alternatively were supported by insufficient evidence. The court agreed and reversed the judgment of the trial court. The court held that appellant did not satisfy her burden to prove that material changes of circumstance had occurred. Appellant's failure to cooperate was merely proof of sustained uncooperativeness, not proof of a material change. Appellee failed to prove that appellant's employment obligations were a material change, such employment having existed throughout the managing conservatorship. While appellee's marital situation was a change, such change was not so material as to require a modification of managing conservatorship.

Outcome

The court reversed the order of the trial court, holding that no evidence supported the trial court modification of conservatorship and child support, that appellee ex-wife failed to prove a substantial and material change in circumstances required for such an award, and that of appellee's allegations, only her remarriage and relocation was a change, but was not the a substantial change required by statute.

LexisNexis® Headnotes

Civil Procedure > Pleading & Practice > Pleadings > Answers
Civil Procedure > ... > Pretrial Judgments > Default & Default Judgments > Default Judgments
Civil Procedure > Judgments > Relief From Judgments > General Overview
Civil Procedure > Judgments > Relief From Judgments > New Trials
Family Law > Marital Termination & Spousal Support > General Overview
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce > General Overview
Family Law > Marital Termination & Spousal Support > Dissolution & Divorce > ProceduresHN1 In a divorce case, the petition is not taken as confessed for want of an answer. Tex. Fam. Code Ann. § 3.53. Even if the respondent fails to file an answer, the petitioner must adduce proof to support the material allegations in the petition.  Shepardize - Narrow by this Headnote


Estate, Gift & Trust Law > ... > Conservators & Guardians > Conservators > General Overview
Family Law > ... > Support Obligations > Modification > General OverviewHN2 Before provisions relating to conservatorship, possession, and support in prior orders may be modified, the court must conduct a hearing. Tex. Fam. Code § 14.08(c).  Shepardize - Narrow by this Headnote


Family Law > ... > Support Obligations > Modification > General OverviewHN3 The test for modification of conservatorship or child support under Tex. Fam. Code § 14.08(c) is three-fold: (1) the parent moving to obtain managing conservatorship has the burden to prove that since rendition of the last final judgment in the case between the same parties changes have occurred in the circumstances of the child or parent so material and substantial that (2) retention of the current managing conservator would be injurious to the welfare of the child, and (3) the movant must establish that the appointment of the new managing conservator would be a positive improvement for the child. The test must be proved by a preponderance of the evidence.  Shepardize - Narrow by this Headnote


Family Law > ... > Support Obligations > Modification > General OverviewHN4 To prove that a material change of circumstance has occurred, the movant must demonstrate what conditions existed at the time of the entry of the prior order. Once such conditions have been established, movant must show what material changes have occurred in the intervening period.  Shepardize - Narrow by this Headnote

Counsel: Mr. David Greenfield, Blanks, Greenfield, Mewhinney & Rhodes, for Plaintiff.

Mr. John Guinn, for Defendant.

Judges: Bob Shannon, Chief Justice. Justices Brady and Carroll.

Opinion by: SHANNON

Opinion

 [254]  Appellant, Thomas P. Considine, seeks to set aside a default judgment rendered by the district court of Bell County modifying conservatorship and support provisions in a previous order. Tex. Fam. Code Ann. § 14.08 (1986). This Court will reverse the judgment.
By his third point of error, appellant asserts that the order modifying conservatorship and support was supported by no evidence or insufficient evidence.
On January 19, 1984, the Bell County district court rendered judgment dissolving the marriage of Thomas P. Considine and Deborah A. Considine, dividing their property and appointing appellant managing conservator and appellee possessory conservator of their two sons, Thomas P. Considine, III, aged five years and Peter J. Considine, aged three years.
The divorce judgment was modified by agreed judgment on August 7, 1984. The agreed judgment [2]  ordered appellee to pay child support in the sum of sixty dollars monthly for each child. In addition, the agreed judgment specified the appellee's right of access to the children as possessory conservator.
In August 1985, appellee filed a motion to modify the previous agreed judgment. Appellant never filed an answer to the motion to modify and, after hearing evidence, the district court rendered judgment modifying the previous order by removing appellant as managing conservator and appointing appellee in his stead. In addition, the judgment ordered appellant to pay support in the sum of two hundred-fifty dollars monthly for each child.
Appellant complains that the order modifying conservatorship and support was supported by no evidence or by insufficient evidence. In the usual case, the defendant who fails to file an answer is said to confess to the facts properly pleaded in the petition. Stoner v. Thompson, 578 S.W.2d 679 (Tex. 1979). In such a case, the non-answering defendant cannot mount an evidentiary attack against the judgment on motion for new trial or on appeal.
HN1 In a divorce case, however, the petition is not taken as confessed for want of an answer. Tex. Fam. Code [3]  Ann. § 3.53. Even if the respondent fails to file an answer, the petitioner must adduce proof to support the material allegations in the petition. Accordingly, the judgment of divorce is subject to an evidentiary attack on motion for new trial and appeal.
This Court knows of no Family Code provision relating to modification of prior orders that is comparable to § 3.53. Reason suggests, nonetheless, that the same policy considerations underlying § 3.53, applicable to original divorce judgments appointing conservators and setting support for and access to children, should also obtain in § 14.08 proceedings to modify like provisions in prior orders. We note that HN2 before provisions relating to conservatorship, possession, and support in prior orders may be modified, the court must conduct a hearing. Tex. Fam. Code § 14.08(c). A "hearing," in this context, implies the admission and consideration of proof -- the opposite of taking allegations of the motion for modification "as confessed for want of an answer." We conclude that the allegations in the motion to modify may not be taken as confessed for want of an answer. As a result, in a case of default by the respondent, the movant must [4]  prove up the required allegations of the motion to modify. 1
By signing the order modifying the prior order, the district court necessarily concluded,  [255]  pursuant to Tex. Fam. Code § 14.08(c)(1), that:

(A) the circumstances of the child, managing conservator, or possessory conservator had "materially and substantially changed since the entry of the order or decree to be modified"; and
(B) the retention of the present managing conservator would be injurious to the child's welfare; and
(C) appointment of a new managing conservator would be a positive improvement.

HN3 The test under § 14.08(c) is three-fold: (1) the parent moving to obtain managing conservatorship has the burden to prove that since rendition of the last final judgment in the case between [5]  the same parties changes have occurred in the circumstances of the child or parent so material and substantial that (2) retention of the current managing conservator would be injurious to the welfare of the child, and (3) the movant must establish that the appointment of the new managing conservator would be a positive improvement for the child. The test must be proved by a preponderance of the evidence. Davis v. Duke, 537 S.W.2d 519 (Tex. Civ. App. 1976, no writ).
HN4 To prove that a material change of circumstance has occurred, the movant must demonstrate what conditions existed at the time of the entry of the prior order. Once such conditions have been established, movant must show what material changes have occurred in the intervening period. Davis v. Duke, supra.
Appellant claims that the district court erred in modifying the prior order because appellee failed to prove that the circumstances of the parties had "materially and substantially changed since the entry of the order or decree to be modified." The order sought to be modified was, of course, the agreed order of August 7, 1984.
As evidence in support of the modified order, appellee points to her testimony that [6]  before rendition of the original judgment appellant promised to cooperate in sharing custody of the children but that once the divorce judgment was rendered appellant's cooperation ended. Even after the district court rendered the agreed judgment of August 7, 1984, appellee indicated that appellant continued his failure to cooperate in arranging for her visitation with the boys. This proof, instead of showing a substantial and material change of circumstances as required by § 14.08(c)(1)(A), shows that appellant has remained consistently uncooperative. See Davis v. Duke, supra.
In further support of the modification order, appellee testified that appellant was a captain of an artillery unit of the United States Army stationed in West Germany. Because appellant is required to be in the field on maneuvers for significant periods of time, the boys stay with a babysitter. As we understand, however, this state of affairs has obtained from the time of appellant's original conservatorship through the date of the modification order. Accordingly, this proof does not represent a showing of a substantial and material change of circumstances. See Gary v. Gary, 631 S.W.2d 781 (Tex.  [7]  App. 1982 writ dism'd).
Appellee additionally complained that appellant permitted the children on occasion to wear tattered clothing. We are not informed, however, whether this condition has obtained throughout appellant's managing conservatorship or has changed only after rendition of the agreed order. Watts v. Watts, 563 S.W.2d 314 (Tex. Civ. App. 1978, writ ref'd n.r.e.). Moreover, assuming that the children's wearing ragged clothing constitutes a changed condition, it is hardly "substantial and material" as contemplated by § 14.08(c)(1).
Finally, appellee points out that since the rendition of the agreed order, she has re-married and now lives in Canada. Appellee's re-marriage and change of residence do constitute a change as contemplated by § 14.08(c)(1). Such a change, however, was not shown to be so material and substantial that the retention of appellant as managing conservator would be injurious to the welfare of the children and the appointment of appellee as the managing conservator  [256]  would be a positive improvement for the boys. See Belford v. Belford, 682 S.W.2d 675 (Tex. App. 1985, no writ). We sustain appellant's no evidence point.

The judgment [8]  of the district court is reversed and judgment is here rendered that appellee take nothing.