









Opinion filed August 3, 2006

















 








 




Opinion filed August 3, 2006
 
 
 
 
 
 
                                                                        In The
                                                                              
    Eleventh Court of Appeals
                                                                 ____________
 
                                                          No. 11-05-00187-CV 
                                                    __________
                                                              
                              IN
THE INTEREST OF S.C.S., A CHILD
 

 
                                         On
Appeal from the 106th District Court
                                                         Gaines County, Texas
                                              Trial
Court Cause No. 04-04-14764
 

 
                                                                   O
P I N I O N
In this
suit to modify the parent-child relationship, Rita Christine Smith appeals from
the trial court=s order reducing the child support
obligations of Ricky Lynn Smith.  We
affirm.
                                                               Background
Facts
Rita and
Ricky were divorced on April 30, 2003, in Cause No. CV 26321 in Erath County, Texas.  In the final decree of divorce, the court
appointed Rita and Ricky joint managing conservators of their four-year-old
daughter, S.C.S.  The court ordered Ricky
to pay Rita child support of $640 per month.




Following
the divorce, a number of disputes and controversies arose between Rita and
Ricky.  Rita and Ricky filed numerous
motions and counter-motions against each other in Cause No. CV 26321.  Rita moved from Erath
 County, Texas, to Gaines County, Texas.  On September 11, 2003, Rita filed an
application for a family violence protective order in Gaines County
based on allegations that Ricky had committed acts of violence against
her.  After a hearing, the court entered
a family violence protective order against Ricky.  This court affirmed the order on March 17,
2005.  Smith v. Smith, No.
11-04-00023-CV, 2005 WL 608190 (Tex.
App.CEastland March 17, 2005, no pet.).
On March
1, 2004, after obtaining the family violence protective order in Gaines County,
Rita filed a APetition to Modify Parent-Child
Relationship@ in Cause No. CV 26321 in Erath County.  Rita requested that the court deny Ricky
access to S.C.S. based on Ricky=s history of family violence.  On March 29, 2004, Ricky filed two pleadings
in Cause No. CV 26321: (1) ARespondent=s
Original Answer and Counterclaim for Frivolous Suit;@ and (2) APetition
to Modify Parent-Child Relationship.@  In
the original answer and counterclaim, Ricky alleged that Rita=s petition to modify was frivolous and that
Rita had filed it for the purpose of harassing him.  In his petition to modify, Ricky sought a
modification of possession of and access to S.C.S. and a reduction of his child
support.
On April
13, 2004, the court in Erath
 County transferred Cause
No. CV 26321 to Gaines
 County.  On June 28, 2004, Rita filed her AAmended Petition to Modify Parent-Child
Relationship.@ In response, on July 21, 2004, Ricky filed
ARespondent=s
First Amended Answer to Petitioner=s First Amended Petition to Modify
Parent-Child Relationship and Counterclaim for Frivolous Suit.@
On
August 26, 2004, the trial court held a hearing on pending matters.  At the hearing, Rita contended that Ricky=s first amended answer and counterclaim
(filed on July 21, 2004) superceded his petition to modify (filed on March 29,
2004).  Because the first amended answer
and counterclaim did not include a claim for reduced child support, Rita argued
that the claim for reduced child support had been dismissed.  The trial court disagreed with Rita and
considered the child support issue at the hearing.
Ricky
was the only witness who testified at the hearing.  He testified that his income had been
substantially reduced since the date of his divorce from Rita.  The trial court determined that Ricky=s travel expenses associated with
exercising his periods of possession of S.C.S. had increased because of Rita=s move to Gaines County.  On February 16, 2005, the trial court entered
its order in the suit to modify parent-child relationship.  Because of the increased expenses associated
with periods of possession by Ricky, the trial court reduced Ricky=s child support obligation from $640 a
month to $550 a month.  Rita appeals from
this order.




                                                                 Issues
on Appeal
Rita
presents three issues for review.  In her
first issue, Rita contends that the trial court erred in determining the child
support issue because the child support issue was not before the trial court at
the time of the hearing.  In her second
issue, Rita asserts that the trial court erred in reducing Ricky=s child support because Ricky testified
that he was voluntarily underemployed. 
In her third issue, Rita contends that the trial court erred in reducing
Ricky=s child support due to increased travel
costs when Rita moved to escape Ricky=s adjudged family violence.
                                     Trial
Court=s Determination of Child Support Issue
Rita
filed her petition to modify parent-child relationship before Ricky filed his
petition to modify parent-child relationship. 
Ricky included his claim for reduced child support in his petition to
modify.  Rita argues that, under Tex. R. Civ. P. 97(a), Ricky=s claim for reduced child support
constituted a compulsory counterclaim to her petition to modify and that,
therefore, Ricky mistakenly designated his pleading including the child support
claim as a Apetition.@ 
Rita asserts that, because Ricky=s
claim for reduced child support actually constituted a counterclaim, Ricky=s later-filed first amended answer and
counterclaim superceded Ricky=s
Apetition.@  Because Ricky did not include a claim for
reduced child support in his first amended answer and counterclaim, Rita argues
that Ricky=s first
amended answer and counterclaim resulted in the dismissal of Ricky=s claim for reduced child support.  See Tex.
R. Civ. P. 64, 65.  Therefore,
Rita contends that the child support issue was not before the trial court and
that the trial court erred in considering the issue.
The outcome of Rita=s
first issue is the same whether or not Ricky=s
claim for reduced child support constituted a counterclaim.  The general rule is that an amended pleading
takes the place of the original pleading and that the original pleading is
superceded and is no longer a part of the live pleadings.  Rule 65; Sheerin v. Exxon Corp., 923
S.W.2d 52, 55 (Tex. App.CHouston
[1st Dist.] 1995, no writ).  Pursuant to
this rule, a party may voluntarily dismiss claims and parties by omitting them
from the substituted pleading.  See
Webb v. Jorns, 488 S.W.2d 407, 409 (Tex.
1972).  Rule 64 requires the party
amending the previous pleading to point out which instrument is being amended.  Sheerin, 923 S.W.2d at 55.  Rule 64 also requires a party to abandon a
pleading by an express act rather than by implication.  Sheerin, 923 S.W.2d at 55.




Ricky filed ARespondent=s First Amended Answer to Petitioner=s First Amended Petition to Modify
Parent-Child Relationship and Counterclaim for Frivolous Suit.@ 
Thus, Ricky=s first
amended answer and counterclaim expressly referred to Rita=s first amended petition to
modify.  Ricky did not refer to his
petition to modify in his first amended answer and counterclaim.  It is apparent that the first amended answer
and counterclaim was intended as a substitute only for Ricky=s original answer and counterclaim and
that it did not alter or supersede Ricky=s
petition to modify.  See Alert
Synteks, Inc. v. Jerry Spencer, L.P., 151 S.W.3d 246, 252-53 (Tex. App.CTyler 2004, no pet.); Sheerin,
923 S.W.2d at 55.  Ricky=s petition to modify remained as a live
pleading at the time of the August 26, 2004, modification hearing in the trial
court.
Rita also argues that, because the trial court
construed Ricky=s claim
for reduced child support to be a Apetition@ to modify child support instead of a
counterclaim, she was entitled to receive notice of petition by service of
citation.  See Tex. Fam. Code Ann. ' 156.003 (Vernon 2002).  Although Rita asserts that she was not
properly served, the record indicates a Areturn
of service of citation to Rita Christine Smith.@  Additionally, the record demonstrates that
Rita had actual notice of Ricky=s
petition to modify and did not raise a lack of service issue in the trial
court. Rita waived the lack of service issue by appearing at the modification
hearing and failing to raise the service issue in the trial court.  See Serna v. Webster, 908 S.W.2d 487,
489 n.1 (Tex. App.CSan
Antonio 1995, no writ) (party waived service by making general appearance
before court); Houston Crushed Concrete, Inc. v. Concrete Recycling Corp.,
879 S.W.2d 258, 260-61 (Tex. App.CHouston
14th Dist.] 1994, no writ) (party waived service by appearing at hearing).




Rita also argues that the trial court erred in
admitting evidence of Ricky=s
reduced income because Ricky=s
allegations in his petition were insufficient to provide her with Afair notice@
of a reduced income issue.  Tex. R. Civ. P. 45(b) provides that
pleadings shall Aconsist
of a statement in plain and concise language of the plaintiff=s cause of action or the defendant=s grounds of defense.@  Tex. R.
Civ. P. 47(a) provides that a pleading setting forth a claim for relief
shall contain Aa short
statement of the cause of action sufficient to give fair notice of the claim
involved.@  A petition provides sufficient notice if it
gives the defendant fair notice of the facts relied upon, enabling the
defendant to prepare a defense.  Horizon/CMS
Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000); see also Coffey v. Johnson,
142 S.W.3d 414, 417 (Tex. App.CEastland
2004, no pet.) (the test for fair notice is whether an opposing attorney of
reasonable competence, with the pleadings before him, can determine the nature
of the controversy and the testimony that would probably be relevant).  When no special exceptions are filed, as in
this case, courts construe the pleadings liberally in favor of the
pleader.  Horizon, 34 S.W.3d at
897; Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993).
Ricky alleged in his petition to modify that the
circumstances of S.C.S. or a person affected by the order (final decree of
divorce) had materially and substantially changed since the rendition of the
order; that the support payments previously ordered should be decreased; that
the support payments previously ordered were not in substantial compliance with
the guidelines set forth in Chapter 154 of the Texas Family Code; and that
decreasing the child support would be in the best interest of S.C.S.  See Tex.
Fam. Code Ann. ch. 154 (Vernon 2002 & Supp. 2005).  He further alleged that Rita=s change of residence had caused him to
incur increased costs in exercising possession of and access to S.C.S.  He requested the trial court to allocate the
increased costs Ain a
manner deemed by the Court to be fair and equitable.@
Ricky=s
petition to modify provided Rita fair notice of a reduced income claim.  Ricky pleaded that the child support payments
ordered in the final decree of divorce were no longer in substantial compliance
with the guidelines set forth in Chapter 154. 
The income of a child support obligor is an important factor in applying
the child support guidelines set forth in the Texas Family Code.  Section 154.062.  Construing the petition to modify liberally
in favor of Ricky, the allegations were sufficient to put Rita on notice of
issues relating to the application of the child support guidelines in Chapter
154, including a reduced income claim. 
The trial court did not err in admitting evidence of Ricky=s reduced income.
However, even if the admission of the evidence of
Ricky=s reduced
income had constituted error, the record does not demonstrate that Rita was
harmed by the evidence.  The trial court
did not reduce Ricky=s
child support based on reduced income. 
Rather, the trial court reduced Ricky=s
child support based on additional expenses associated with Ricky=s periods of possession of S.C.S. due
to Rita=s move to
Gaines County. 
Rita=s first
issue is overruled.
                                             Trial
Court=s
Reduction of Child Support
The trial court reduced Ricky=s monthly child support from $640 to
$550.  In her second issue, Rita argues
that the trial court erred in reducing Ricky=s
child support because Ricky testified that he was voluntarily
underemployed.  In her third issue, Rita
asserts that the trial court erred in reducing Ricky=s
child support based on increased travel costs because she moved to Gaines County
to escape Ricky=s family
violence.
In determining questions of child support, the
trial court=s primary
consideration must always be the best interest of the child.  Clark v. Jamison, 874 S.W.2d 312, 316
(Tex. App.CHouston
[14th Dist.] 1994, no writ).  The trial
court is accorded broad discretion in setting and modifying child support
payments; and, absent a clear abuse of discretion, the trial court=s order will not be disturbed on
appeal.  In re P.J.H., 25 S.W.3d
402, 405 (Tex.
App.CFort
Worth 2000, no pet.); DuBois v. DuBois, 956 S.W.2d 607, 610 (Tex. App.CTyler 1997, no pet.).  A trial court abuses its discretion when it
acts without reference to any guiding rules or principles.  Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex.
1985).  Under an abuse of discretion
standard, legal and factual insufficiency issues are not independent grounds of
error but are relevant factors in assessing whether the trial court abused its
discretion.  In re E.A.C., 162
S.W.3d 438, 441 (Tex.
App.CDallas
2005, no pet.).  If there is some
evidence of a substantive and probative character to support the decision of
the trial court, no abuse of discretion occurs. 
Id.;
In re P.J.H., 25 S.W.3d at 405.
In this case, Rita did not file a timely request
for findings of fact and conclusions of law, and no findings of fact or
conclusions of law were filed.  It is,
therefore, implied that the trial court made all the findings necessary to
support its order or judgment.  Worford
v. Stamper, 801 S.W.2d 108, 109 (Tex.
1990).  When a reporter=s record is filed, as in this case, the
factual or legal sufficiency of any implied findings may be challenged.  Roberson v. Robinson, 768 S.W.2d 280,
281 (Tex.
1989).




Section 156.401 of the Texas Family Code allows a
court to modify an order that provides for the support of a child if Athe 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)(A) (Vernon
Supp. 2005).  In determining whether a
modification of support is necessary, the trial court is to examine and compare
the circumstances of the parents and any minor children at the time of the
initial order with the circumstances existing at the time modification is
sought.  London
v. London, 94 S.W.3d 139, 144 (Tex. App.CHouston [14th Dist.] 2002, no pet.).
Rita and Ricky both lived in Stephenville, Erath County, Texas,
at the time of the initial divorce decree. 
Rita moved to Seminole, Gaines
  County, Texas, and
lived there at the time Ricky sought modification.  Ricky testified that Seminole was 286 miles
from Stephenville.  Pursuant to the
agreement of the parties, the trial court ordered that Ricky would have
possession of S.C.S. for one weekend a month during the school year and that
the exchange of S.C.S. would take place during the school year in Sweetwater, Texas.  Ricky=s
periods of possession would begin on Friday at 7:00 p.m. and end on Sunday at
7:00 p.m.  Thus, to exercise possession,
Ricky would be making round trips from Stephenville to Sweetwater on Friday
nights and on Sunday nights.  The trial
court found that Ricky=s
child support should be reduced from $640 to $550 Adue
to the additional expenses associated with periods of possession exercised by
Ricky.@
Section 154.123 of the Texas Family Code sets
forth factors for courts to consider when applying child support
guidelines.  One of the factors that
courts shall consider is Athe
cost of travel in order to exercise possession of and access to a child.@ Section 154.123(b)(14).  Thus, the trial court properly considered
Ricky=s
increased travel costs B
two round trips from Stephenville to Sweetwater each month during the school
year B
associated with exercising possession of and access to S.C.S.  Rita asserts that the trial court erred in
reducing Ricky=s child
support based on increased travel costs because she moved to Seminole to get
away from Ricky=s
violence.  However, nothing in Section
154.123 prohibits a trial court from considering increased costs in such
cases.  Viewing the evidence in its
entirety, the trial court did not abuse its discretion in reducing Ricky=s monthly child support obligation from
$640 to $550.  We overrule Rita=s third issue.
In her second issue, Rita argues that the trial
court erred in reducing Ricky=s
child support because Ricky testified that he was voluntarily
underemployed.  Section 154.066 of the
Texas Family Code allows the trial court to apply the child support guidelines
to the earning potential of an obligor, rather than the obligor=s actual income, if the obligor is
intentionally underemployed.  For a trial
court to find that a parent is intentionally underemployed or unemployed under
Section 154.066, there must be evidence the parent reduced his income for the
purpose of decreasing his child support payments.  In re P.J.H., 25 S.W.3d at 405; DuBois,
956 S.W.2d at 610.




At the modification hearing, Ricky testified that
his gross income had decreased by about $18,000 a year since the date of the
divorce decree.  He attributed his loss
of income to Aall the
legal issues [he=d] had to
deal with, all the interviews at all the lawyers=
offices.@  While Ricky requested the trial court to
decrease his child support based on reduced income, the trial court did not
reduce the child support on this basis. 
Rather, the trial court decreased the child support based on increased
travel costs associated with Ricky=s
possession of S.C.S.  Therefore, the
issue of whether or not Ricky was voluntarily underemployed had no relevance on
the trial court=s
reduction of Ricky=s child
support.  We overrule Rita=s second issue.
                                                               This
Court=s Ruling
We affirm the trial court=s
order in the suit to modify parent-child relationship.
 
TERRY McCALL
JUSTICE
 
August 3, 2006
Panel
consists of:  Wright, C.J., and
McCall,
J., and Strange, J.

