







Reversed and Remanded and Majority and Concurring Opinions filed June 3,
2004








Reversed and Remanded and Majority and Concurring Opinions
filed June 3, 2004.
 
 
In The
 
Fourteenth Court of Appeals
_______________
 
NO. 14-03-00737-CV
_______________
 
IN THE INTEREST OF K.J.M., A MINOR CHILD
 
 
                                                                                                                                               

On Appeal from the 257th District Court
Harris County, Texas
Trial Court Cause No. 96‑03766
                                                                                                                                                
 
M A J O R I T Y  
O P I N I O N
 
In
this suit affecting parent-child relationship, Tom McGowan appeals an order
modifying the terms of his possession of the parties= child, K.J.M. (the Achild@), on the ground that no evidence was
provided of a material and substantial change in circumstances.  We reverse and remand.
Pursuant
to the McGowans= 1996 divorce, they were appointed joint managing
conservators of their then three year old child.  Their modified standard possession order (the
Aoriginal order@) provided that, when the child
reached age five, Tom=s periods of possession would be extended until 8:30 p.m. on
weekdays and overnight on weekends.




In
2000, the child=s mother, Eileen McGowan, filed a motion (the Amotion@) to modify the order.  The trial court=s 2003 order (the Amodification order@), granting this motion, provides
that: (1) Tom=s periods of possession will be
supervised and not continue past 8:30 p.m.; (2) Tom may not drive a motor
vehicle while in possession of the child; (3) Tom must successfully complete an
out-patient alcohol program; and (4) Tom will pay $11,219.78 in attorney=s fees.  In this appeal, Tom=s issues principally challenge the
legal sufficiency of the evidence[1]
to show a change of circumstances warranting the modification.  See Tex.
Fam. Code Ann. ' 156.101 (Vernon 2002) (requiring, for modification of a
possession order, a material and substantial change in circumstances).
At
the hearing on the motion, Eileen explained that: (1) the original possession
order increased Tom=s possession of the child when she reached age five in
anticipation that his drinking problem would be improved by then; and (2)
mainly, the drinking had not ceased, but, if anything, had Aexacerbated.@ 
Thus, the thrust of Eileen=s position is that:
[I]t
was believed that TOM would get help with his drinking after the divorce and
before he was to start exercising overnight possession periods with [the
child].  However, TOM did not stop
drinking or get help.  This was the
material and substantial change of circumstances.
(emphasis added).
Put another way, as Eileen argued at oral argument, the change
(supporting the modification order) was that there was no change.




Neither
Eileen=s testimony nor any other evidence in
the record provides an adequate evidentiary foundation to support a conclusion
that Tom=s drinking had materially diminished
his ability to care for the child since the time of the original order.  Moreover, to construe section 156.101,
requiring a material and substantial change in circumstances, as being
satisfied by no change in circumstances would render the statutory
requirement meaningless and defeat the Legislature=s intent in enacting it.  Thus, finding no authority or rationale to
support such an approach, we sustain Tom=s challenge to the modification on
this ground and need not address his other challenges to it.
Tom
further contends that the trial court abused its discretion[2]
in ordering him to pay attorney=s fees because Eileen failed to meet her burden to secure a
modification of the original order. 
However, because Tom has cited no authority providing that such attorney=s fees may only be awarded to a
prevailing party, his challenge to the award of attorney=s fees affords no basis for relief
and is overruled.  Nevertheless, in light
of our decision today regarding the modification, the trial court should have
an opportunity to decide whether it wishes to leave its attorney=s fee award intact.[3]  Accordingly, the judgment of the trial court
is reversed, and the case is remanded to the trial court.
 
 
 
/s/        Richard H. Edelman
Justice
 
Judgment rendered
and Majority and Concurring Opinions filed June 3, 2004.
Panel consists of
Justices Fowler, Edelman, and Seymore.  (Seymore, J., concurring).
 
 




[1]           In
conducting a legal sufficiency review, we view the evidence in a light that
tends to support the disputed finding and disregard evidence and inferences to
the contrary.  Wal-Mart Stores, Inc.
v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003).  If more than a scintilla of evidence supports
the challenged finding, the no‑evidence challenge must fail.  Id.


[2]           An
attorney=s fees award in a suit affecting the parent‑child
relationship is discretionary with the trial court.  Tex.
Fam. Code Ann. ' 106.002 (Vernon Supp. 2004); Lenz v. Lenz, 79
S.W.3d 10, 21 (Tex. 2002).


[3]           See
Lenz, 79 S.W.3d at 21.


