In re K.F.

On Appeal from the 233rd District Court Tarrant County, Texas Trial Court No. 233-458476-09

Before Womack, Wallach, and Walker, JJ.

2

MEMORANDUM OPINION

Dana Womack Justice.

I. Introduction

In this suit involving a parent-child relationship, Appellant T.F. (Mother) sought modification of child-support payments by Appellee R.F. (Father) for their three children, K.F., R.F., and T.F. (the Children). In the first trial on the requested modification, the trial court granted the modification, Father appealed, and we reversed and remanded for a new trial. In re K.F., No. 02-18-00187-CV, 2018 WL 6816119, at *1 (Tex. App.-Fort Worth Dec. 27, 2018, pet. denied) (mem. op.). After conducting a new trial, the trial court denied the modification, and Mother now appeals. We will affirm.

II. Background

Part of the factual background of the parties' dispute is detailed in our prior opinion.

In 2013, pursuant to a mediated settlement agreement, the trial court signed an agreed order (Agreed Order), which provided that Mother and Father would be the Children's joint managing conservators and that Mother had the exclusive right to designate their residence anywhere in the United States. Because Mother planned to (and did) move with the Children to Virginia, Father and Mother agreed that Father's monthly child[-] support payments would be $1 000 because Father would exclusively bear all costs of travel

After moving to Virginia, Mother remarried and moved into her new spouse's 8, 000 square foot home, with its $6, 000 monthly mortgage payment. In April 2017, a Virginia court signed an order (Consent Order), which, relevant to this appeal, modified the Agreed Order by altering Father's possession and access schedule. Although they disagree about the exact numbers, both Mother and Father acknowledge that the

3

Consent Order decreased the number of days that Father had possession of and access to the Children. Yet the order increased his travel costs because certain blocks of his visitation periods were broken into smaller periods of possession, thus requiring him to pay for additional travel arrangements

In January 2017, Mother filed the underlying petition for modification of child support, seeking an increase in Father's monthly payment

Id. at *1. After the first modification trial, the trial court ordered Father to pay $4, 865 per month, with retroactive support. Id. at *2. The order also included step-down^[1] provisions that reduced Father's monthly child-support payments as each child turned eighteen. Id.

In the appeal of that order, we noted that it was undisputed that Father's income had significantly increased from 2013 to 2016, which "alone is sufficient to establish a material and substantial change in his circumstances, permitting the trial court to modify the Agreed Order." Id. at *4. However, after reviewing the evidence, we stated that "the evidence is insufficient to support the finding that the Children's proven needs [were] $9, 150 per month...." Id. at *6. Therefore, we held that the trial court had abused its discretion by ordering Father to pay child support above the

4

statutory guidelines, and we reversed the modification order and remanded for a new trial. Id.

In August 2020, the trial court held a new trial on the motion to modify. At the beginning of the trial, Father "agreed and stipulated there has been a material and substantial change" due to his increased income. However, he disagreed that the material and substantial change alone warranted a modification.

At the second trial, five witnesses-Stepfather, Mother, Father, Mother's attorney, and Father's attorney-testified, and forty-three documents were admitted into evidence. Stepfather testified that he "pay[s] the bills" and "run[s] all of the bank accounts." Because he primarily operated and controlled the expenses in the household, Stepfather prepared spreadsheets "listing all of the expenses that we considered in this case." To prepare the spreadsheets, he went through "[b]ank statements, credit card statements, utility bills, et cetera." He included three-fifths of most expenses because "the children make up three-fifths of the household that live here[, ]" and this was "the best choice of the way to split the costs." As Stepfather explained, "I took 12 months of all the bills, added them together, got a yearly - -broke it up by 12 and then divided by three-fifths." Expenses included, among other things, the house payment, utilities, and HOA dues. According to Stepfather, the expenses attributable to the Children totaled $13, 097.52 per month. However, neither he nor Mother consulted Father before they bought things for the Children.

5

Mother testified regarding the Children's need for cell phones, a car, clothing, food, entertainment, medical care, dental care, and extracurricular activities. In addition to the current expenses on the spreadsheet that Stepfather prepared, she wanted to hire tutors for the Children at a cost of $600 to $700 per child per month; however, she had not discussed the tutoring with Father. On cross-examination, Mother stated that she wanted Father to pay for each child to have an iPhone; a rental car when Mother and one of the Children "flew to Arizona to meet with her shot put and discus coach"; expenses at Tropical Smoothie cafe, Main Event, FragranceNet.com, Hampton Inn & Suites, and Bath & Body Works; portions of the monthly pest control and the dog's expenses; expenses at Victoria Nails for one child to get her nails done; an Xbox Live Gold membership; and fishing lures for one of the Children. Mother admitted that Father pays the travel expenses to see the Children, both bringing them to Texas and going to Virginia to see them.

Also on cross-examination, Father's attorney pointed out to Mother that at the first trial, Mother had testified that she does not want to have to ask Father about any expenses related to the Children. At the second trial, Mother testified similarly:

[Father's attorney] Q. It's true, ma'am, just like in the trial in 2017, that you would like [Father] to pay for the expenses of the children and you can make all of those decisions; is that correct?

[Mother] A. Yes.

Q. And you don't want to ever be ordered or have to consult with him about any of these decisions, right?

6

A. That's correct.

Father testified that his income had dramatically increased since 2013. When he signed the 2013 agreement, his income was "eighty-five, maybe a hundred and ten, something like that" annually. At the time of the second trial, his net monthly income was a little over $100, 000 a month. Father testified that Mother's income had also increased to "two fifty" annually. Father's income had gone up approximately 1000 percent, and Mother's income had gone up approximately 150 percent. He said that he pays travel expenses in relation to seeing the Children and bringing them to Texas, as well as the expenses for them when they are together. In addition, Father pays for all of the Children's health insurance.

Father asked the trial court to consider that Mother did not consult with him about any of the Children's expenses. Due to the prior agreement, the travel expenses, and the co-parenting issues, Father asked the trial court to keep his child support at $1, 000 a month.

As noted above, the trial court admitted numerous exhibits offered by Mother and Father. Mother's admitted exhibits included a summary of her requested relief; her attorney's fees summary and billing statements; the spreadsheet prepared by Stepfather; statements from Verizon, Costco Visa, Dominion Energy Virginia, Vivint Home Security, Navy Federal Credit Union, National Propane Buyer's Cooperative, and Wells Fargo Visa; a USAA auto-insurance policy (covering four vehicles); a transaction history for a 2018 Ford Edge; medical and dental bills; and an email

7

regarding tutoring. Father's admitted exhibits included a summary of his requested relief; his attorney's fees summary, billing statements, and fee agreement; a Texas Attorney General child-support payment record; a copy of In re K.F. and excerpts from the opinion; the 2013 Agreed Order and the first modification order; Father's financial information, earnings statement, and IRS documents; Mother's discovery responses; Mother's summary of expenses from the first and second trial; excerpts of Mother's testimony from the first trial; three 2017 Virginia Consent Orders (one for each child); a summary of child-support overpayments; Father's trial brief; Our Family Wizard message excerpts; copies of various trial court pleadings; and the testimony and exhibits from the first trial.

At the conclusion of the trial, the trial court stated,

[T]he Court finds that the parties entered into an agreement back in 2013 for the payment of child support and for the needs of the . . . children and that agreement was entered into with the assistance of counsel [of] both parties. The Court finds that it was foreseeable that the income of both parties could either increase or decrease, and that an agreement was entered into with that foreseeability in mind. Thereby, the Court finds that there has not been a material change in circumstances concerning the children as the parties agreed to and entered into an amount of child support below the guidelines with the understanding that the father would pay for costs of travel both ways for visitation.

Thereafter, the trial court signed an order denying Mother's motion to modify child support, ordering Father to pay child support in the amount of $1, 000 a month, terminating the order requiring the withholding from Father's earnings, crediting the

8

...