                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-13-00899-CV

                                        Roland S. ROTHER,
                                             Appellant

                                                  v.
                                             Janette G. /s
                                        Janette G. ROTHER,
                                               Appellee

                     From the 131st Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2012-CI-03233
                            Honorable Karen H. Pozza, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: October 1, 2014

AFFIRMED

           In this appeal, Roland S. Rother argues the trial court erred in granting a no-evidence

summary judgment on his petition to modify spousal maintenance. We affirm.

                                            BACKGROUND

           Roland was divorced from his wife, Janette Rother, on August 16, 2012. Roland and Janette

had one child. The divorce decree appointed Roland and Janette as joint managing conservators,

appointed Janette as the parent with the exclusive right to determine the child’s primary residence,

and directed Roland to have possession and access to the child according to a standard possession
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order. The decree also ordered Roland to pay spousal maintenance in the amount of $500.00 per

month to Janette until either (1) September 1, 2015, (2) the death of either Roland or Janette, (3)

Janette’s remarriage, or (4) further orders of the court affecting the spousal maintenance obligation,

including a finding of cohabitation by Janette.

       On March 25, 2013, Roland filed a petition to modify the divorce decree. First, Roland

asked the trial court to modify the decree with respect to possession and access. Roland alleged

that the circumstances of the child, a conservator, or other party affected by the order had

materially and substantially changed since the date the divorce decree was rendered. Second,

Roland asked the trial court to modify the decree with respect to spousal maintenance. Roland

alleged that the circumstances of the child or a person affected by the order had materially and

substantially changed since the date the divorce decree was rendered. Roland further alleged that

the spousal maintenance payments previously ordered should be decreased or terminated. In

response, Janette filed a counter petition to modify possession and access, alleging that the

circumstances of the child, a conservator, or other party affected by the order to be modified had

materially and substantially changed since the rendition of the order to be modified. Janette asked

that the terms and conditions of Roland’s possession and access to the child be decreased.

       Janette moved for no-evidence summary judgment on Roland’s request to modify spousal

maintenance. In her motion, Janette asserted that there was no evidence to support any of the

essential elements for modification of spousal maintenance, including no evidence that either

party’s circumstances had materially and substantially changed since the divorce decree, or that

there had been any change in the factors relevant to determining spousal maintenance under section




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8.052 of the Texas Family Code. 1 Janette asserted that her employment and income as well as

Roland’s employment and income were the same as when the trial court rendered its divorce

decree.

           Roland filed a response to the no-evidence summary judgment motion, asserting that

Janette’s counter petition contained statements that were judicial admissions of the changed

circumstances of the parties. The only evidence attached to Roland’s response was Janette’s

counter petition to modify possession and access.



1
    Section 8.052 of the Texas Family Code provides:

         A court that determines that a spouse is eligible to receive maintenance under this chapter shall determine
the nature, amount, duration, and manner of periodic payments by considering all relevant factors, including:

           (1) each spouse’s ability to provide for that spouse’s minimum reasonable needs independently,
           considering that spouse’s financial resources on dissolution of the marriage;

           (2) the education and employment skills of the spouses, the time necessary to acquire sufficient
           education or training to enable the spouse seeking maintenance to earn sufficient income, and the
           availability and feasibility of that education or training;

           (3) the duration of the marriage;

           (4) the age, employment history, earning ability, and physical and emotional condition of the spouse
           seeking maintenance;

           (5) the effect on each spouse’s ability to provide for that spouse’s minimum reasonable needs while
           providing periodic child support payments or maintenance, if applicable;

           (6) acts by either spouse resulting in excessive or abnormal expenditures or destruction,
           concealment, or fraudulent disposition of community property, joint tenancy, or other property held
           in common;

           (7) the contribution by one spouse to the education, training, or increased earning power of the other
           spouse;

           (8) the property brought to the marriage by either spouse;

           (9) the contribution of a spouse as homemaker;

           (10) marital misconduct, including adultery and cruel treatment, by either spouse during the
           marriage; and

           (11) any history or pattern of family violence, as defined by Section 71.004.

TEX. FAM. CODE ANN. § 8.052 (West 2006).

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                                           DISCUSSION

       Under Rule 166a(i) of the Texas Rules of Civil Procedure, a party may move for a no-

evidence summary judgment on the ground that there is no evidence of one or more essential

elements of a claim or defense on which an adverse party would have the burden of proof at trial.

TEX. R. CIV. P. 166a(i). The trial court must grant the motion unless the respondent produces

summary judgment evidence raising a genuine issue of material fact. Id. The respondent is “not

required to marshal its proof; its response need only point out evidence that raises a fact issue on

the challenged elements.” TEX. R. CIV. P. 166a(i) cmt-1997. In reviewing a trial court’s order

granting a no-evidence summary judgment, we consider the evidence in the light most favorable

to the respondent and disregard all contrary evidence and inferences. King Ranch, Inc. v. Chapman,

118 S.W.3d 742, 750-51 (Tex. 2003).

       A trial court may modify the amount of spousal maintenance a person is required to pay if

the circumstances of a party have materially and substantially changed since the date of the prior

order’s rendition. TEX. FAM. CODE ANN. § 8.057 (West 2006); Marquez v. Marquez, No. 04-04-

00771-CV, 2006 WL 1152235, at *1 (Tex. App.—San Antonio 2006, no pet.). At the hearing, the

burden is on the movant to make a proper showing of a material and substantial change in

circumstances relating to either party. See TEX. FAM. CODE ANN. § 8.057(c); Marquez, 2006 WL

1152235, at *3. The trial court must compare the financial circumstances of the parties at the time

of the existing maintenance order with their circumstances at the time the modification is sought.

Marquez, 2006 WL 1152235, at *1; In the Matter of the Marriage of Lendman, 170 S.W.3d 894,

899-900 (Tex. App.—Texarkana 2005, no pet.).

       Here, Roland argues the trial court erred in granting no-evidence summary judgment on

his request to modify spousal maintenance because Janette “submitted a pleading which judicially

admitted the change.” We disagree. Janette’s counter petition alleged only that there had been a
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change in circumstances pertaining to possession and access; it was silent as to spousal

maintenance. Thus, the statements in Janette’s counter petition did not raise a material fact issue

on Roland’s request to modify spousal maintenance.

       In support of his argument, Roland cites to a single case, In the Interest of L.C.L., 396

S.W.3d 713, 718 (Tex. App.—Dallas 2013, no pet.). However, L.C.L. is factually and procedurally

distinguishable. L.C.L. presented a situation where both parents sought to modify the joint

managing conservatorship ordered in the divorce decree. The mother sought to become the joint

managing conservator with the exclusive right to determine the child’s residence; the father sought

to become the sole managing conservator. Id. at 714. Following a bench trial, the trial court

modified the divorce decree to appoint the father as the sole managing conservator. Id. On appeal,

the mother argued there was no evidence of a material and substantial change in circumstances to

support the modification. Id. at 717. The appellate court disagreed, concluding the allegation of

changed circumstances in the mother’s pleading was “a judicial admission of the common element

of changed circumstances of the parties” in the father’s pleading, and therefore, there was evidence

to support the trial court’s modification of conservatorship. Id. at 718-19.

       Here, Janette specifically asserted in her no-evidence summary judgment motion that no

party’s employment or income had changed and that no other factor relevant to determining

spousal maintenance had changed since the prior order. See TEX. FAM. CODE ANN. § 8.052. Thus,

Roland was required to produce evidence raising a material fact issue as to whether a party’s

employment or income had changed or whether another factor relevant to determining spousal

maintenance had changed. Roland failed to produce any such evidence. When a party moves for

no-evidence summary judgment, the trial court must grant the motion unless the respondent

produces summary judgment evidence raising a genuine issue of material fact. TEX. R. CIV. P.



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166a(i). We conclude the trial court did not err in granting no-evidence summary judgment against

Roland on his request to modify spousal maintenance. See id.

       Roland raises two additional issues in his brief; however, he does not support his arguments

on these issues with citation to any authority. We conclude that Roland has waived these issues by

failing to brief them. See TEX. R. APP. P. 38.1(i) (requiring briefs to contain appropriate citations

to authorities); In re Blankenship, 392 S.W.3d 249, 259 (Tex. App.—San Antonio 2012, no pet.)

(concluding that an issue was inadequately briefed and presented nothing for appellate review

when the appellant cited no cases or other authority in her brief).

       Finally, in a cross-point, Janette argues this appeal is frivolous and asks us to sanction

Roland under Rule 45 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 45. Whether

to grant sanctions on appeal is within the discretion of the appellate court. Herring v. Welborn, 27

S.W.3d 132, 145-46 (Tex. App.—San Antonio 2000, pet. denied). We have recognized that as

long as a party’s argument has a reasonable basis in law and constitutes an informed, good faith

challenge to the trial court’s judgment, an award of sanctions is not appropriate. Tabrizi v. Das-

Res Corp., No. 04-05-00945-CV, 2007 WL 671323, at *4 (Tex. App.—San Antonio 2007, no

pet.); id. Here, although we have overruled Roland’s arguments on appeal, we conclude that an

award of appellate sanctions is not appropriate. Janette’s request for sanctions on appeal is denied.

                                           CONCLUSION

       The judgment of the trial court is affirmed.

                                                      Karen Angelini, Justice




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