Affirmed and Majority and Concurring Opinions filed October 1, 2013.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-12-00440-CV

               IN THE INTEREST OF L.R. AND A.R., Children.


                    On Appeal from the 300th District Court
                           Brazoria County, Texas
                         Trial Court Cause No. 48170

                      MAJORITY OPINION


      The mother of two minor children, L.R. and A.R., appeals the denial of her
petition to modify the parent-child relationship. In a single issue, she contends that
the trial court abused its discretion when it denied her discovery request for
documents that she claims are relevant to the financial resources of the children’s
father. See Tex. Fam. Code Ann. §§ 154.062, 154.067 (West 2008 & Supp. 2012).

      The father argues that, under the law-of-the-case doctrine, we need not
address the mother’s discovery issue because we resolved it in a prior mandamus
proceeding. We conclude that our mandamus opinion did not address the merits of
the mother’s discovery request and therefore is not dispositive here. Nonetheless,
we conclude that any error in denying the mother’s discovery request was harmless
because, given the facts presented at trial, the evidence that the mother sought
could not have altered the trial court’s judgment. We therefore affirm.

                                       BACKGROUND

       L.R. and A.R.’s parents divorced in 2009, when the children were twelve
and eleven years old. The parents’ divorce decree gave the father the exclusive
right to designate the children’s primary residence and made him responsible for
the children’s medical expenses. The decree did not require either parent to pay
child support.

       The mother filed this action to modify certain provisions in the divorce
decree. Among other things, she wanted the father to pay child support. To
establish a change in the father’s financial circumstances justifying a modification,
the mother sought to discover certain financial documents relating to the company
where the father worked.1 In considering the discovery request, the trial court
reviewed the documents in camera and determined that they “d[id] not show [the
father’s] earnings, potential earnings, share or interest in [the company].” It found
the documents to be “irrelevant and not reasonably calculated to lead to the
discovery of admissible evidence relating to [the father’s] ability to pay child
support.”

       The trial court denied the mother’s discovery request, and the mother
petitioned this court for a writ of mandamus. She asked that we order the trial

       1
        Specifically, the mother requested the father’s partnership agreement, a written
agreement between the father’s company and its parent, and financial statements for the father’s
company and its parent.

                                               2
court to require production of the requested documents. We denied the mother’s
petition.

       Then the case was tried to a jury. During the trial, the father testified that he
could afford to pay up to $10,000 a month in child support—more than five times
the maximum amount recommended in the child support guidelines.2 He said that
he also could have afforded this amount when the parties initially divorced. Based
upon the father’s ability to pay well over the recommended amount, the trial court
excluded other evidence of the father’s resources as irrelevant.

       At the close of the mother’s case, the trial court granted a directed verdict for
the father. It held that the mother had failed to introduce evidence meeting the
statutory requirement that “the circumstances of the child or a person affected by
the order ha[d] materially and substantially changed since . . . the date of the
order’s rendition.” Tex. Fam. Code Ann. § 156.401 (West Supp. 2012).

       The mother now appeals but does not challenge the directed verdict.
Instead, she asserts in a single issue that the trial court abused its discretion in
denying her discovery request.

                                         ANALYSIS

       The father contends that we should affirm the trial court’s judgment because:
(1) the law-of-the-case doctrine requires us to affirm the trial court’s discovery
ruling based upon our prior denial of the mother’s mandamus petition; (2) the trial
court did not abuse its discretion by denying the discovery request; and (3) even if



       2
         The guidelines presumptively apply only to $7,500 of the obligor’s monthly net
resources. See Tex. Fam. Code Ann. §§ 154.125, 154.126 (West 2008 & Supp. 2012). For a
parent with two children, the presumptive support obligation is 25% of this maximum amount, or
$1,875. See id. § 154.125.

                                              3
the trial court did abuse its discretion, any error was harmless.3 We conclude that
our mandamus opinion is not law of the case and does not bind us here, but that
any error was harmless.

I.     Our mandamus opinion did not address the merits of the mother’s
       discovery complaint and therefore the opinion is not law of the case.
       Under the law-of-the-case doctrine, a decision rendered in a former appeal is
generally binding in a later appeal of the same case.                Paradigm Oil, Inc. v.
Retamco Operating, Inc., 372 S.W.3d 177, 182 (Tex. 2012).                     The doctrine’s
purpose is to streamline litigation by winnowing the issues in each successive
appeal. Id. In this way, the doctrine promotes efficiency and uniformity in the
decisionmaking process. Id. When applying the law-of-the-case doctrine, “the
decision to revisit the conclusion is left to the discretion of the court under the
particular circumstances.” City of Houston v. Jackson, 192 S.W.3d 764, 769 (Tex.
2006). While the doctrine is not mandatory or jurisdictional, see id., we exercise
our discretion to consider it here because (1) the father has raised it; (2) we need
not reach the merits of the mother’s issue if the doctrine applies; and (3) this case
provides an opportunity to address the doctrine’s application in the mandamus
context.

       Denial of a mandamus petition does not necessarily establish law of the case.
See Chambers v. O’Quinn, 242 S.W.3d 30, 32 (Tex. 2007). A writ of mandamus is
discretionary, so its denial without comment on the merits does not prevent an
appellate court from considering the matter in a subsequent appeal. Id. Here, the
parties disagree about whether our mandamus opinion commented on the merits of

       3
        The father also argues that the mother waived review of her issue by failing to brief it
adequately. We have reviewed the mother’s briefing and conclude that it complies sufficiently
with Tex. R. App. P. 38.1 to allow us to review the mother’s issue on the merits, which we do
below.

                                               4
the mother’s discovery request. We conclude that it did not.

      Our memorandum opinion denying the mother’s petition briefly explained
the nature of her discovery complaint, stated the standard for mandamus, and
concluded: “On this record, [the mother] has not established that the trial court
abused its discretion in its December 7, 2011 order denying discovery of the
[financial] documents described therein.” In re Reynolds, No. 14-11-01097-CV,
2012 WL 51028, at *1 (Tex. App.—Houston [14th Dist.] Jan. 10, 2012, orig.
proceeding) (mem. op.) (per curiam). This conclusion is not a comment on the
merits of the mother’s petition because it does not explain our reasons for denying
mandamus relief. See Siemens AG v. Houston Cas. Co., 127 S.W.3d 436, 442
(Tex. App.—Dallas 2004, pet. dism’d) (denial of mandamus petition did not
constitute law of the case where court stated that relator “failed to show itself
entitled to the relief requested”).

      Moreover, the authorities we cited to support our conclusion demonstrate
that we denied the mother’s petition because she failed to provide an adequate
record. First, we cited Texas Rules of Appellate Procedure 52.3(k) and 52.7.
These rules relate to original proceedings and govern the record and the contents of
a petition’s appendices. Neither states substantive rules that would bear on the
merits of the mother’s discovery request. We also cited portions of two cases in
which mandamus petitions were dismissed because the relators failed to produce
an adequate record. See Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig.
proceeding); In re Le, 335 S.W.3d 808, 814 (Tex. App.—Houston [14th Dist.]
2011, orig. proceeding) (“[I]n the final analysis, this court cannot and will not find
an abuse of discretion on an incomplete record.”).

      Our reliance upon authorities that discussed the mandamus record—rather
than substantive discovery law—demonstrates that we dismissed the mother’s

                                          5
petition based upon the inadequacy of the record. Because our denial of the
mother’s mandamus petition did not comment on the merits, it is not law of the
case and does not bind us here. See Perry Homes v. Cull, 258 S.W.3d 580, 586
(Tex. 2008). We therefore turn to the merits of the mother’s appeal.

II.    Any error in denying the mother’s discovery request was harmless.
       In requesting the documents, the mother contended they were relevant
because they would demonstrate (1) the father’s ability to pay child support and (2)
whether the value of the father’s interest in the company where he worked had
materially and substantially changed since the parties divorced. For purposes of
our analysis, we will assume, without deciding, that the trial court erred by denying
the request and that the documents would have demonstrated significant increases
in both the father’s ability to pay child support and the value of his interest in the
company.4 Even with these assumptions, however, the mother failed to establish
that the trial court’s denial of her discovery request was harmful.

       If the trial court abuses its discretion in a discovery ruling, the complaining
party must show harm on appeal to obtain a reversal. Ford Motor Co. v. Castillo,
279 S.W.3d 656, 667 (Tex. 2009). Harmful error is error that “probably caused the
rendition of an improper judgment” or “probably prevented the appellant from
properly presenting the case to the court of appeals.” Tex. R. App. P. 44.1(a). The
mother argues only the first type of harm here.5

       4
          The documents the mother wished to discover are not in the appellate record, and a
motions panel of this Court denied the mother’s request that the documents be sealed and
transferred to us for review.
       5
          To the extent the mother’s reply brief arguably raises the second type of harmful error,
her initial brief failed to do so. Thus, we need not address it. Brown v. Green, 302 S.W.3d 1, 15
n.17 (Tex. App.—Houston [14th Dist.] 2009, no pet.). In any event, we disagree that any error
by the trial court prevented the mother from demonstrating harm on appeal. As explained next,
even if the appellate record had included documents showing that the father’s financial resources
increased, the record also shows that financial circumstances were not material to the initial
                                                6
       To explain why the denial of discovery did not cause an improper judgment,
we begin with the relevant issue at trial and how the evidence that the mother
sought would have fit in. The mother requested a modification because, she
alleged, “the circumstances of the children, a conservator, or other party affected
by the order to be modified h[ad] materially and substantially changed since the
date of the signing of the order to be modified.”

       When such changes in circumstances occur, the Family Code permits child
support and custody modifications.             See Tex. Fam. Code. Ann. § 156.401.
Because the mother requested the modification, she had the burden of
demonstrating that circumstances had materially and substantially changed.
Rumscheidt v. Rumscheidt, 362 S.W.3d 661, 667 (Tex. App.—Houston [14th Dist.]
2011, no pet.).        Determining whether a modification is necessary requires
comparing the circumstances of the parents and children at the time of the initial
order with the circumstances when modification is sought. London v. London, 192
S.W.3d 6, 15 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

       The mother contends that the trial court’s discovery denial harmed her
because the trial court effectively excluded documents that would have established
a material change in the father’s financial circumstances. We disagree because the
father’s financial circumstances appear to have been immaterial to the parties’
initial support order, so an increase in the father’s resources alone could not have
been a material change in circumstances for purposes of a modification.

       When the parties initially divorced, both possessed significant resources, and
neither was ordered to pay child support. There is no contention that the absence
of child support resulted from either party’s inability to afford it. Indeed, all
evidence at trial was to the contrary. For example, the mother testified that she

order, and thus an increase alone would not support a modification of child support.

                                                7
received over $3 million in the divorce settlement. The father, who had primary
custody, testified that he could have afforded a support payment of up to $10,000
per month at all times since the divorce.

      As a result, an increase in the father’s resources alone could not have
justified modifying the support arrangement. Cf. Clark v. Jamison, 874 S.W.2d
312, 320 (Tex. App.—Houston [14th Dist.] 1994, no writ) (where trial court’s
finding of changed circumstances could have referred only to the father’s income
increasing, trial court did not abuse discretion by declining to modify order).
When the parties divorced, the father could have afforded $10,000 per month, but
he was ordered to pay $0. Nothing in the record suggests that had the father been
able to pay more than $10,000, an obligation of more than $0 would have been
imposed.

      Thus, even assuming that the denied discovery would have established an
increase in the father’s ability to pay, this would not mean that circumstances had
“materially . . . changed since the date of the order’s rendition.” Tex. Fam. Code
Ann. § 156.401 (emphasis added). Rather, such evidence would only demonstrate
that a factor not material to begin with—the father’s ability to pay substantial child
support—had changed. We therefore reject the mother’s argument that her lack of
access to the requested documents prevented her from demonstrating a material
change in the father’s financial circumstances.

      Of course, this does not mean that a change in income alone will never
constitute a material and substantial change. Indeed, some cases suggest that it
can. See, e.g., Holley v. Holley, 864 S.W.2d 703, 707 (Tex. App.—Houston [1st
Dist.] 1993, writ denied) (where father’s income increased, but opinion did not
discuss any other changes, evidence sufficed to increase father’s support
obligation); Woodall v. Woodall, 837 S.W.2d 856, 859 (Tex. App.—Houston [14th

                                            8
Dist.] 1992, no writ) (income reduction, without discussion of other changes,
provided sufficient evidence to reduce obligation).6 In this case, however, the
father’s already substantial income was immaterial to the issue of child support on
“the date of the order’s rendition.” Tex. Fam. Code Ann. § 156.401. We therefore
hold that any increase in income, standing alone,7 would also have been immaterial
for purposes of the modification analysis. As a result, we reject the mother’s
argument that the trial court’s discovery denial probably resulted in the rendition of
an improper judgment. Because any error was harmless, we overrule the mother’s
issue.

                                         CONCLUSION

         Having overruled the mother’s sole issue, we affirm the judgment of the trial
court.


                                                     /s/     J. Brett Busby
                                                             Justice


Panel consists of Chief Justice Frost and Justices Brown and Busby (Frost, C.J.,
concurring).




         6
         But see In re C.C.J., 244 S.W.3d 911, 916, 918 (Tex. App.—Dallas 2008, no pet.)
(where father’s income had increased, but “there [wa]s no evidence in the record of the financial
circumstances of Mother or the children at the time of the divorce decree,” trial court’s finding of
a material and substantial change not supported by the record).
         7
         We note that the trial court, in granting a directed verdict, held that the mother
introduced no evidence that any material circumstance had changed. With the exception of her
argument about discovery of the father’s income, the mother does not challenge this ruling.

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