Dismissed in Part; Affirmed in Part; and Opinion filed June 27, 2019.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-17-00725-CV

                    IN THE INTEREST OF N.H.N., A CHILD

                     On Appeal from the 246th District Court
                             Harris County, Texas
                       Trial Court Cause No. 2014-07634


                                   OPINION

      In this appeal from a father’s motion to modify an agreed order respecting
child support, Father contends that the trial court erred in failing to order Mother to
pay him child support based on a material and substantial change in circumstances.
He also challenges the trial court’s failure to award him child support in pre- and
post-judgment temporary orders. Because Father’s attempted appeal of the pre-
judgment temporary order was rendered moot by the trial court’s final judgment, we
dismiss that part of Father’s appeal. Finding no abuse of discretion in the other
challenged rulings, we affirm the trial court’s final judgment and its denial of father’s
motion for temporary orders pending appeal.
                                        I. BACKGROUND

       Father and Mother share one child, whom we refer to as Nestor.1 Nestor’s
parents divorced in July 2010, and in September 2014, they agreed to a modification
in the decree as it pertained to child support, possession and access, and
conservatorship. At that time, Nestor lived with his father in DeKalb County,
Georgia, and Nestor’s mother resided in Harris County, Texas, where she continues
to reside today. Although she was not required to do so under the modification,
Mother voluntarily paid Father $200 per month for Nestor’s benefit while Father and
Nestor lived in Georgia.

       Father subsequently moved with Nestor to Orange County, California, and for
several months, Mother voluntarily paid Father $400 per month for Nestor’s benefit.
When she ceased these payments, Father moved to modify the September 2014
agreement, particularly as it concerns child support. Mother filed a counter-petition
in which she, too, asked to be awarded child support; however, she abandoned that
request before trial. 2

       After a bench trial, the trial court failed to find that the circumstances of
Nestor or of a person affected by the September 2014 order had materially and
substantially changed since that order was rendered. The trial court therefore did
not modify the September 2014 order concerning child support. Father filed a notice



       1
        To increase readability while protecting the child’s identity, we refer to him by a
pseudonym.
       2
          Father and Mother reached an agreement regarding all issues of possession, access, and
conservatorship, and their agreement is incorporated in the judgment. Regarding the costs of the
child’s travel, each parent was required under the 2014 agreed order to bear the expense of the
child’s travel to that parent, so in effect, each parent bore half the child’s expenses for round-trip
travel. At trial, Father asked for the child’s travel expenses to be shared equally, and in accordance
with that request, the trial court did not modify that portion of the 2014 order.

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of appeal, and subsequently moved unsuccessfully for a temporary order of child
support pending appeal.

      In Father’s first issue, he contends that the trial court could not find, and
Mother could not properly allege, that there has been no material change in
circumstances, because Mother filed a counter-petition requesting the same relief
that Father requested, namely, the payment of child support. In his second issue,
Father contends that the trial court abused its discretion denying his motions for pre-
and post-judgment temporary orders for child support and in failing to award Father
child support in the final judgment.

                  II. EFFECT OF MOTHER’S COUNTER-PETITION

      Father first contends that by filing a counter-petition requesting child support
and the right to establish the child’s primary residence, Mother judicially admitted
that there has been a material and substantial change in circumstances, and thus, he
was not required to prove such a change. See Horizon/CMS Healthcare Corp. v.
Auld, 34 S.W.3d 887, 905 (Tex. 2000) (a party’s judicial admission bars that party
from disputing the admitted fact and relieves the party’s adversary of the burden of
proving the admitted fact). We disagree.

      “Assertions of fact, not plead[ed] in the alternative, in the live pleadings of a
party are regarded as formal judicial admissions.” Holy Cross Church of God in
Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (quoting Hous. First Am. Sav. v.
Musick, 650 S.W.2d 764, 767 (Tex. 1983)). And as the Supreme Court of Texas has
repeatedly stated, “a judicial admission must be a clear, deliberate, and unequivocal
statement.” PPG Indus., Inc. v. JMB/Hous. Ctrs Partners Ltd. P’ship, 146 S.W.3d
79, 95 (Tex. 2004); Horizon/CMS Healthcare Corp., 34 S.W.3d at 905; Regency
Advantage Ltd. P’ship v. Bingo Idea-Watauga, Inc., 936 S.W.2d 275, 278 (Tex.
1996) (per curiam). But, Mother did not state in her live pleadings that there had
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been any change in circumstances. She stated only that “[Mother] should be
designated as the conservator who has the exclusive right to designate the primary
residence of the child. The residence of the child should be restricted to Harris
County and its geographically contiguous counties,” and Father “is obligated to
support the child and should be ordered by the Court to make payments for the
support of the child and to provide medical child support in the manner specified by
the Court.” Mother alleged no facts in support of these requests, which she later
abandoned, instead stipulating to Father’s exclusive right to designate the child’s
primary residence.

      Because Mother did not judicially admit to a material and substantial change
in circumstances, Father was not relieved of the burden to prove such a change. We
overrule Father’s first issue.

                          III. EVIDENTIARY SUFFICIENCY

      In his second issue, Father asks us to hold that the trial court abused its
discretion by failing to order child support “at the temporary orders hearing, the
bench trial or at the hearing for temporary orders pending appeal.” For the reasons
set forth below, we may not review the trial court’s pre-judgment denial of a
temporary order for child support, and we conclude that the trial court did not abuse
its discretion in denying Father’s request for child support both in the trial court’s
final judgment and in its ruling denying Father’s request for temporary orders
pending appeal.

A.    Review of Temporary Orders

      After a trial court renders a final judgment, any pre-judgment temporary
orders become moot and are not subject to appellate review. See In re Marriage of
Harrison, 557 S.W.3d 99, 132 n.26 (Tex. App.—Houston [14th Dist.] 2018, pet.


                                          4
denied) (sub. op. on denial of reh’g). We cannot address moot issues because we
lack jurisdiction to render advisory opinions. See Valley Baptist Med. Ctr. v.
Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000) (per curiam); Jay & VMK, Corp. v.
Lopez, 572 S.W.3d 698, 703 (Tex. App.—Houston [14th Dist.] 2019, no pet.). We
accordingly dismiss this part of Father’s appeal.

       After bringing this appeal, Father filed a motion seeking a temporary order for
child support during the pendency of this appeal. See TEX. FAM. CODE ANN.
§ 109.001. Although Father’s motion was untimely, 3 the trial court held a hearing
on the motion and denied it on the merits before its jurisdiction to rule expired.4

       Section 109.001(c) provides that “[a] temporary order rendered under this
section is not subject to interlocutory appeal,” and although there was a split of
authority among the courts of appeals on the issue, this court previously construed
subsection (c) to mean that a trial court’s ruling on a motion for temporary orders
pending appeal is reviewable only by mandamus. For example, in In re Marriage
of Koenig (Koenig I), No. 14-16-00369-CV, 2016 WL 5491428 (Tex. App.—
Houston [14th Dist.] Sept. 29, 2016, no pet.) (per curiam) (mem. op.), a father
brought a separate interlocutory appeal challenging a temporary order under section


       3
          A motion for an original temporary order pending appeal “may not be filed by a party
after the date by which that party is required to file the party’s notice of appeal under the Texas
Rules of Appellate Procedure.” TEX. FAM. CODE ANN. § 109.001(b-1)(2). The trial court rendered
judgment on June 1, 2017, and because Father filed a motion for a new trial, his notice of appeal
was due ninety days after judgment, that is, on August 30, 2017. See TEX. R. APP. P. 26.1. On
request, the appellate court may extend the time to file for an additional fifteen days. See TEX. R.
APP. P. 26.3. Thus, Father’s motion for a temporary order pending appeal was due not later than
September 15, 2017. Father filed the motion on September 19, 2017, four days after it was due.
       4
         See TEX. FAM. CODE ANN. § 109.001(b)(2) (“The trial court retains jurisdiction to conduct
a hearing and sign a temporary order under this section until the 60th day after the date any eligible
party has filed a notice of appeal from final judgment under the Texas Rules of Appellate
Procedure.”). Father filed his notice of appeal on September 11, 2017, and the trial court denied
the motion for temporary orders pending appeal on October 10, 2017, well within this time frame.

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109.001, and we dismissed the appeal for want of jurisdiction, citing section
109.001(c). Id. at *1. When the father challenged the temporary order as part of his
direct appeal from the final judgment, we dismissed the challenge on the same
grounds, again citing section 109.001(c). See In re Marriage of Koenig (Koenig II),
No. 14-16-00319-CV, 2017 WL 2704081, at *2 (Tex. App.—Houston [14th Dist.]
June 22, 2017, no pet.) (mem. op.).

      Section 109.001 has since been amended to add subsection (b-5), which states,
“A party may seek review of the trial court’s temporary order under this section by:
(1) petition for writ of mandamus; or (2) proper assignment in the party’s brief.”
TEX. FAM. CODE ANN. § 109.001(b-5). Given that a party can challenge a trial
court’s order under section 109.001 by “proper assignment in the party’s brief” in
the pending appeal, we must construe section 109.001(c) to bar review of a
temporary order only through an accelerated interlocutory appeal, and not to bar
review as part of a direct appeal from the final judgment. See In re Moore, 511
S.W.3d 278, 286 (Tex. App.—Dallas 2016, no pet.) (“Subsection (c) does not
prohibit all appeals; it prohibits only interlocutory appeals from temporary
orders. . . . We construe this to mean only that an accelerated appeal of a temporary
order, separate from the appeal from the final judgment, is statutorily prohibited.”);
In re Merriam, 228 S.W.3d 413, 415 (Tex. App.—Beaumont 2007, no pet.) (pointing
out that the construction of 109.001(c) to mean that an appellate court cannot review
the denial of a motion for temporary orders as part of the pending appeal “does not
distinguish between an accelerated appeal and the pending appeal from the final
judgment”). To the extent that Koenig II or our other decisions hold that a temporary
order pending appeal pursuant to Texas Family Code section 109.001 is not
reviewable as part of that pending appeal from the final judgment, we consider that



                                          6
holding to be superseded by statute. We accordingly may review the ruling on
Father’s post-judgment motion for temporary orders pending appeal.

      Because the trial court’s ruling on Father’s post-judgment motion and in the
final judgment both deny Father’s request for child support, we address the merits
of those rulings together.

B.    Failure to Find a Material and Substantial Change of Circumstances

      Father challenges the trial court’s failure to find that a material and substantial
change in his circumstances had occurred after September 15, 2014, when the order
respecting child support was modified by agreement. The 2014 order required each
parent to be responsible for Nestor’s support only when Nestor was in that parent’s
possession, and the trial court did not modify that requirement in this proceeding.

      Where, as here, the order that is sought to be modified is an agreed order that
does not comport with child-support guidelines, the trial court may modify the order
“only if the circumstances of the child or a person affected by the order have
materially and substantially changed since the date of the order’s rendition.” TEX.
FAM. CODE ANN. § 156.401(a-1). The party requesting the modification bears the
burden to show such a change in circumstances. See Rumscheidt v. Rumscheidt, 362
S.W.3d 661, 667 (Tex. App.—Houston [14th Dist.] 2011, no pet.); In re D.S., 76
S.W.3d 512, 522 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

      We review the challenged ruling for abuse of discretion. See Worford v.
Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam). The test for abuse of
discretion is whether the court acted arbitrarily or unreasonably, that is, without
reference to guiding rules and principles. Id. Under this standard, the legal and
factual sufficiency of the evidence are not independent grounds of error but are



                                           7
merely factors in determining whether the trial court abused its discretion. London
v. London, 192 S.W.3d 6, 14 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

      Because the trial court failed to find a material and substantial change of
circumstances—an issue on which Father bore the burden of proof—the evidence is
legally insufficient only if it conclusively establishes that there has been such a
change. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per
curiam). In making this determination, we must view the evidence in the light most
favorable to the trial court’s actions and indulge every legal presumption in favor of
the judgment. In re D.S., 76 S.W.3d at 516. We also bear in mind that the trial court
is the sole judge of the witnesses’ credibility and the weight to be given to the
evidence. See London, 192 S.W.3d at 14. When considering the factual sufficiency
of the evidence of a material and substantial change of circumstances, we review the
entire record to determine whether the great weight and preponderance of the
evidence show that there has been such a change. See Dow Chem. Co., 46 S.W.3d
at 242.

      Comparing the evidence of the parties’ finances in 2014 with their finances at
the time the trial court ruled, Mother’s tax returns show that she continues to be self-
employed, and that her net income in 2014 was $24,553, or $2,046 per month. Her
2016 tax return is nearly the same, showing a net income of $24,588—an increase
of $3 per month.

      Although Father offered evidence that his expenses increased and his earnings
decreased after the order respecting child support was last modified in 2014, the trial
court apparently did not find Father’s evidence credible. According to Father’s 2014
tax return, Father earned wages of $55,000, and from his wholly owned corporation,
At Tiffanys Nail Shop, Inc., he received the net amount of $44,337, for a total of
$99,337, or $8,278 per month. At trial, Father testified that he now earns about

                                           8
$33,000 year, and has no income from the corporation because he gave the company
to his sister and brother-in-law. Although he initially testified that the corporation
was no longer making money, he later admitted that the company was profitable and
that it continued to make money for the alleged new owners. In this version of
events, Father gave the company away because he was moving, and he testified that
he moved to California in August 2015. But, Father’s 2015 tax return lists the same
Georgia address as his 2014 tax return. The trial court presumably disbelieved
Father’s evidence that he gave away the company and has a reduced income.

      There were other discrepancies in Father’s financial evidence. He testified
that when he first moved to California, he paid monthly rent of $750, but that he
moved to a new address on the same day that he testified, and that his rent would
now be $1,200 per month. He stated that he gave Mother and the court only two
weeks’ notice of the move because he did not know any earlier that he would be
moving. But, more than two months before trial, Father filed a Financial Information
Statement in which he stated that he already was paying rent of $1,200 per month.
Presumably, the trial court did not credit Father’s testimony about the increase in his
expenses.

      Father also testified that Mother had voluntarily been paying him $400 a
month in child support, and that he sued for modification only when she stopped
making these voluntary payments. But, “[a] history of support voluntarily provided
in excess of the court order does not constitute cause to increase the amount of an
existing child support order.” TEX. FAM. CODE ANN. § 156.403.

      Finally, Father testified that the cost of living is higher in California than in
Texas or Georgia. But without any evidence of the extent of the increase, the trial
court was not required to find that the increase was “material and substantial.” See
also id. § 156.103(b) (“The payment of increased expenses by the party whose

                                          9
residence is changed is rebuttably presumed to be in the best interest of the child.”
(emphasis added)).

      On this record, and according due deference to the trial court’s credibility
determinations, we cannot say that the trial court clearly abused its discretion in
failing to find a material and substantial change in circumstances sufficient to modify
the parties’ child-support obligations. We overrule Father’s second issue.

                                  IV. CONCLUSION

      Having overruled both issues presented for our review, we affirm the trial
court’s judgment.




                                        /s/    Tracy Christopher
                                               Justice



Panel consists of Justices Christopher, Bourliot, and Zimmerer.




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