












 
 
 
 
 
 
                                      COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
                                        NO.
 2-05-211-CV
 
 
IN THE INTEREST OF 
 
 
S.G.S AND E.E.S, MINOR CHILDREN

 
 
                                              ------------
 
           FROM
THE 233RD DISTRICT COURT OF TARRANT COUNTY
 
                                              ------------
 
                                MEMORANDUM
OPINION[1]
 
                                              ------------
Appellant Daniel S., pro se,
appeals from an order modifying possession, access, and child support
concerning the children of Daniel and his former wife, Appellee Leslie U.  We modify in part and affirm as modified.
                                            Background




Daniel and Leslie were
divorced in 1996 by decree rendered by the 219th District Court in Collin
County.  Two children, S.G.S. and E.E.S.,
were born to the marriage before the parties divorced.  After the divorce, Leslie and the children
moved from Dallas to Kansas City and then to Minneapolis. 
The Collin County court
rendered an order modifying possession, access, and child support in 2002.  Under that order, Daniel had the right to
choose one weekend per month on which to fly the children to Dallas/Fort Worth
for visitation.  The order also provided
that Daniel pay $800 per month in child support plus an annual lump sum of
$6,600 less travel expenses necessary to exercise possession and visitation
with the children. 
In 2004, Leslie filed a
motion to modify possession, access, and child support in the Collin County
court.  She then filed a motion to
transfer venue to Tarrant County under family code section 155.301 because she
no longer lived in Texas and Daniel lived in Tarrant County.  The Collin County court granted the motion,
and the case was transferred to the 233rd District Court of Tarrant County. 




The Tarrant County court
conducted a trial on Leslie=s motion to modify.  Daniel is
an airline pilot, and much of the dispute between the parties concerns his
ability to obtain free-of-charge, standby airline tickets for the children and
his ability to obtain weekends off for visitation.  The trial court entered a new order that
granted Leslie possession of the children on the second weekend of each month,
granted Daniel possession one weekend per month on the weekend of his choice,
and otherwise imposed standard visitation terms.  The trial court also awarded Leslie attorney=s fees, eliminated the lump-sum-less-travel-expenses child support in
favor of straight child support of $1,350 per month, and ordered Daniel to pay
Leslie $4,649.11 as back child support for past travel expenses disputed by
Leslie.  Daniel filed this appeal.
                                                Venue
In his first issue, Daniel
argues that the Collin County court erred by transferring the case to Tarrant
County under section 155.301(a) of the family code.  Leslie replies that Daniel waived this
compliant by failing to seek a writ of mandamus when the Collin County court
transferred the case and that the transfer was proper under section 155.301.




We will first address Leslie=s contention that Daniel waived this complaint by failing to seek a
writ of mandamus.  Leslie relies on Proffer
v. Yates, in which the supreme court held that mandamus relief is available
to compel mandatory transfer in suits affecting the parent‑child
relationship.  734 S.W.2d 671, 672 (Tex.
1987).  Leslie argues that, under Proffer,
writ of mandamus was the only avenue by which Daniel could challenge the
transfer.  We disagree.  As the supreme court observed in Proffer,
a remedy by appeal, though often inadequate, is available to a litigant who
challenges a transfer in a suit affecting the parent-child relationship.  Id. at 673.  We therefore reject Leslie=s argument that mandamus was Daniel=s exclusive remedy.
We turn now to the merits of
Daniel=s argument.  Section 155.301(a)
provides as follows:
A
court of this state with continuing, exclusive jurisdiction over a child
custody proceeding under Chapter 152 or a child support proceeding under
Chapter 159 shall transfer the proceeding to the county of residence of the
resident party if one party is a resident of this state and all other parties
including the child or all of the children affected by the proceeding reside
outside this state.
 
Tex. Fam. Code Ann. ' 155.301(a)
(Vernon Supp. 2005).  Chapter 152 is the
Uniform Child Custody Jurisdiction & Enforcement Act and governs
jurisdiction among Texas and our sister states in child custody cases.  Chapter 159 is the Uniform Interstate Family
Support Act and governs jurisdiction among Texas and our sister states in child
support proceedings.




Daniel argues that section
155.301(a) does not apply in this case because there was no jurisdictional
question between Texas and another state and, thus, the case is not a
proceeding under chapter 152 or chapter 159. 
We do not read the statute so narrowly. 
See In re Casseb, 119 S.W.3d 841, 843-44 (Tex. App.CSan Antonio 2003, no pet.) (rejecting similar argument concerning
section 155.301=s
predecessor).  The predicate to applying
section 155.301(a) is not whether a proceeding is brought under chapters 152 or
159 but whether the trial court had continuing, exclusive  jurisdiction as defined by those chapters.
Under section 152.202, a
court of this state has exclusive continuing jurisdiction over a child custody
determination if the court made a child custody determination consistent with
section 152.201 or 152.203.  Tex. Fam. Code Ann. ' 152.202(a) (Vernon 2002). 
Section 152.201 confers jurisdiction to make an initial custody
determination on a court of this state when, among other things, Texas is the
child=s home state when the proceeding commences.  Id. ' 152.201(a)(1) (Vernon 2002).  AHome state@ means the
state in which a child lived with a parent for six months before the
commencement of a child custody proceeding. 
Id. ' 152.102(7)
(Vernon 2002).
It is undisputed that the
children=s home state was Texas when Leslie filed for divorce.  Thus, the Collin County court=s initial custody determination was consistent with section 152.201,
and the court acquired exclusive continuing jurisdiction under section
152.202.  Because the court had exclusive
continuing jurisdiction under section 152.202, the transfer provisions of
section 155.301(a) applied and the trial court properly transferred the case to
Daniel=s county of residence, Tarrant County. 
We therefore hold that the Collin County court did not abuse its
discretion by transferring the case to Tarrant County under section 155.301,
and we overrule Daniel=s first
issue.




                                    Child
Support Arrearage
In his second issue, Daniel
argues that the trial court erred by ordering him to pay Leslie $4,649.11 in
child support arrearage because Leslie=s pleading did not support that award. 
In 2002, the Collin County court ordered Daniel to pay, in a addition to
regular monthly child support, additional child support in a lump sum of $6,600
per year less travel expenses for the exercise of possession and visitation
rights related to the children during the previous year. At trial, Leslie
disputed $5,208 of the travel expenses claimed by Daniel.  The trial court found that Daniel was
$4,649.11 in arrears on the lump-sum support obligation and ordered him to pay
that amount to Leslie. 
Daniel argues that the award
is unsupported by Leslie=s
pleading.  Leslie=s third amended petition does not mention a child support arrearage or
complain of the disputed travel expenses. 
When Leslie=s counsel
questioned her at trial about the travel expenses, Daniel objected as
follows:  AThis was not -- this request was not anywhere in the mediation [sic],
Your Honor.  They did not request back
support of these funds.  They=re requesting an accounting of these funds, Your Honor, but there=s no request for retro reimbursement.@  Leslie tacitly concedes that
the claim was not supported by her pleading but argues that it was tried by
consent because Daniel=s objection
was untimely and because he did not claim surprise at trial. 




A plaintiff may not sustain a
favorable judgment on an unpleaded cause of action unless it is tried by
consent.  Oil Field Haulers Ass=n v. R.R. Comm=n, 381 S.W.2d 183, 191 (Tex. 1964).  AWhen issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all respects as if
they had been raised in the pleadings.@  Tex. R. Civ. P. 67.  
We disagree with Leslie=s argument that Daniel=s objection was untimely. 
Leslie=s attorney
questioned her about various travel expenses from an exhibit reflecting the
disputed expenses.  Before offering the
exhibit, her attorney asked whether she was asking the trial court to grant her
a judgment in the amount of the disputed amount; she answered that she
was.  Daniel made his objection within
seconds of the question and answer.  Up
until that point in the testimony, the aim of counsel=s questions regarding the travel expenses is unclear.  Daniel=s reference to mediation in his objection is inexplicable, but the
gist of his objection was enough to apprise the trial court that Leslie was
testifying about an unpleaded cause of action.




As for Leslie=s argument that Daniel failed to show surprise, we note that surprise
will preclude a trial amendment under rule 66; it is not a factor in
determining whether a cause of action was tried by implied consent under rule
67.  See Tex. R. Civ. P. 66, 67; see also State Bar of Tex.
v. Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994) (noting that party opposing
trial amendment must show surprise or prejudice).  Leslie did not seek permission to file a
trial amendment; thus, this case does not implicate the Asurprise@ element of
rule  66.
Leslie=s pleadings do not support a claim for back child support or any claim
arising for the disputed travel expenses. 
Daniel made a timely objection to evidence relating to those claims;
thus, they were not tried by implied consent. 
We therefore hold that the trial court erred by rendering judgment for
Leslie on those claims, and we sustain Daniel=s second issue.
                          Leslie=s Refusal to Move Back to Texas




In his third issue, Daniel
argues that the trial court should have denied all relief to Leslie because she
had the opportunity but refused to move back to Texas with the children when
her current husband obtained employment in Dallas.  Daniel argues that Leslie Acame before the . . . Court with unclean hands and should not be
entitled to relief@ because her
refusal to move back to Texas was not in the best interest of the
children.  Daniel cites no authority in
support of his argument other than family code section 153.002 for the general
proposition that the best interest of the child is the primary consideration
when determining issues of possession and access.  See Tex.
Fam. Code Ann. ' 153.002. 
The 2002 possession order did not prohibit Leslie
from relocating to another state with the children.  We take judicial notice of the undeniable
blessings and benefits that inure to those who call the Lone Star State Ahome,@ but we find
no authority for the proposition that residence in a another state is so
contrary to the best interest of a child as to outweigh all other
considerations.  We overrule Daniel=s third issue.
                                   Leslie=s Possession Bond
In his fourth issue, Daniel
argues that the associate judge of the Tarrant County court lacked authority to
set aside a possession bond ordered by the presiding judge of the Collin County
court.  The order releasing the bond,
however, is signed by a district judge as well as the associate judge.[2]  An associate judge has the power to conduct a
hearing, hear evidence, make findings of fact, and recommend an order to be entered
in a case, and that appears to be what happened here.  See
id. ' 201.007 (Vernon Supp. 2005). 
We overrule Daniel=s fourth
issue.
 
 




                                  Sufficiency
of the Evidence
 
In his fifth issue, Daniel
argues that Leslie presented legally insufficient evidence to show a
substantial change in circumstances to justify a modification of the existing
visitation order.  Family code section
156.101 provides that a court may modify a visitation order if the modification
would be in the best interest of the child and the circumstances of the child,
conservator, or other person affected by the order have materially and
substantially changed since the date of the rendition of the order.  Id. ' 156.101(1)
(Vernon Supp. 2005).  The burden of showing a substantial change in
circumstances was on Leslie, the movant. 
See In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000).




A legal sufficiency challenge may only be sustained
when:  (1) the record discloses a
complete absence of evidence of a vital fact; (2) the court is barred by rules
of law or of evidence from giving weight to the only evidence offered to prove
a vital fact; (3) the evidence offered to prove a vital fact is no more than a
mere scintilla; or (4) the evidence establishes conclusively the opposite of a
vital fact.  Uniroyal Goodrich Tire
Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526
U.S. 1040 (1999); Robert W. Calvert, "No
Evidence" and "Insufficient Evidence" Points of Error,
38 TEX. L. REV. 361, 362-63 (1960).  In determining whether there is legally
sufficient evidence to support the finding under review, we must consider
evidence favorable to the finding if a reasonable factfinder could, and
disregard evidence contrary to the finding unless a reasonable factfinder could
not.  City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
After the 2002 possession and visitation order, Leslie
moved to Minnesota.  Both Leslie and
Daniel testified extensively about the difficulty they had in working out a
visitation schedule under the 2002 order. 
For example, Leslie testified that Daniel monopolized the children=s three-day
weekends.  Daniel testified that Leslie
would find a scheduling conflict for whatever weekend he chose to exercise his
visitation rights.  Daniel also testified
that it had become increasingly difficult over the two years before trial for
him to take weekends off from his job as an airline pilot because of his
employer=s restructuring
and downsizing. 
We hold that the testimony of the parties presented more
than a scintilla of evidence of a material and substantial change in
circumstances to justify a modification to the 2002 visitation order.  We overrule Daniel=s fifth issue.
                                           Nonstandard
Possession




In his sixth issue, Daniel argues that the trial court
erred by ordering nonstandard possession that allows Leslie to Aprotect@ the second
weekend of each month.  We review a trial
court=s order regarding
possession and visitation for an abuse of discretion.  An appellate court will not reverse the trial
court=s decision
regarding visitation absent a clear abuse of discretion. In re M.R., 975
S.W.2d 51, 53 (Tex. App.CSan Antonio 1998, pet. denied).
At trial, Daniel testified on cross-examination that he
would agree to the visitation schedule ordered by the trial court:
I=ve already made the offer to allow
her to block off the weekend first and then allow me to choose around her
blocked weekend.  That gives me three
weekends to choose from.  I=ll agree to that.  She can block the first weekend.  I=ll choose from the other ones. That gives her one set
weekend. 
 
This
testimony, coupled with the other testimony we have already recounted about the
parties= difficulty in
scheduling Daniel=s visitation and Daniel=s increasing inability to get weekends off from work, supports the
trial court=s order
allowing Leslie to protect the second weekend of each month.  We therefore hold that the trial court did
not abuse its discretion by ordering nonstandard visitation.  We overrule Daniel=s sixth issue.
                                          Attorney=s Fees
In his seventh issue, Daniel
argues that the trial court erred by awarding attorney=s fees to Leslie because Leslie was not entitled to prevail on her
petition and because the fees were not reasonable or necessary. 




Family code section 106.002
provides that a trial court may render judgment for reasonable attorney=s fees in a suit under Title V. 
Tex. Fam. Code Ann. ' 106.002(a) (Vernon Supp. 2005). 
An award of attorney=s fees under section 106.002 in a suit affecting the parent-child
relationship lies within the trial court=s discretion.  Bruni v. Bruni,
924 S.W.2d 366, 368 (Tex. 1996).
Leslie=s attorney, Toby Goodman, testified about Leslie=s attorney=s fees.   Goodman testified that he has practiced
family law in Tarrant County for over thirty years and that he was familiar
with the reasonable and necessary charges for the type of representation he
provided in this case.  He offered an
exhibit that summarized Leslie=s attorney=s fees,
broken down by attorney, hourly rate, and total hours billed, and an exhibit
that listed the many litigation documents filed by Daniel.  Goodman testified that Leslie=s attorney=s fees
through trial were $17,202.94.  He
further testified that reasonable attorney=s fees on appeal would be $6,500 for an appeal to this court, $1,500
for responding to a petition for review in the supreme court, and $3,500 for
responding on the merits in the supreme court. 
Daniel offered no evidence on attorney=s fees, and his cross-examination of Goodman was limited to a single
question, whether Goodman=s fees
reflected actual billings.  Goodman said
that they did. 
The trial court awarded
Leslie $8,500 for her attorney=s fees through trial plus $9,000 if Daniel perfected an appeal in this
court, $1,000 if Daniel filed a petition for review in the supreme court, and
$1,500 if the supreme court granted a petition for review. 




Goodman testified that a
reasonable fee to respond to an appeal in this court would be $6,500.  Thus, there was no evidence to support $2,500
of the $9,000 awarded by the trial court for appeal to this court.  Accordingly, we sustain Daniel=s seventh issue with regard to attorney=s fees for appeal to this court. 
The other amounts awarded by the trial court were supported by Goodman=s testimony; thus, we hold that the trial court did not abuse its
discretion by awarding them and overrule the remainder of Daniel=s seventh issue.
                                             Conclusion
Having sustained Daniel=s second issue and his seventh issue in part, we modify the trial
court=s judgment to delete the $4,649.11 in child support arrearage and to
reduce the total award of attorney=s fees on appeal to $9,000.  We
affirm the trial court=s judgment
as modified.
 
 
ANNE GARDNER
JUSTICE
 
PANEL F:    HOLMAN, GARDNER, and WALKER, JJ.
 
DELIVERED:  June 29, 2006




[1]See Tex. R. App. P. 47.4.


[2]We
note that Judge Brian Carper, presiding judge of the 324th District Court,
signed the order although the case was pending in the 233rd District
Court.  The rules of civil procedure
provide that in counties with more than one district court, Aany
judge may hear any part of any case@ and Aany
judge may hear . . . all preliminary matters, questions, and proceedings and
may enter judgment or order thereon in the court in which the case is pending
without having the case transferred to the court of the judge acting.@  Tex.
R. Civ. P. 330(g), (h).


