                                                                                       ACCEPTED
                                                                                   02-15-00335-CV
                                                                       SECOND COURT OF APPEALS
                                                                             FORT WORTH, TEXAS
                                                                            10/29/2015 11:38:14 AM
                                                                                    DEBRA SPISAK
                                                                                            CLERK




              CAUSE NO. _____________-CV    FILED IN
                                      2nd COURT OF APPEALS
                                                             FORT WORTH, TEXAS
                                                           10/29/2015 11:38:14 AM
               IN THE FIFTH DISTRICT COURT OF             APPEALSDEBRA SPISAK
                             at Dallas, Texas                       Clerk



              In the Interest of M.D.L., a Minor Child.

                  Appealed from the 442nd District Court of
                           Denton County, Texas

             BRIEF OF APPELLANT MICHAEL A. LODISPOTO




                                     Michael A.
                                     Lodispoto,Prose
                                     6805 Lebanon Rd., Apt 512
                                     Frisco, Texas 75034
                                     Tel: (214) 215-0275


                                            Michael Lodispto, prose Appellant


ORAL ARGUMENT REQUESTED.
                     IDENTITY OF PARTIES AND COUNSEL

Child:                             Michael D. Lodispoto

Appellant:                              Michael A. Lodispoto

Appellate Counsel for Appellant:        Michael A. Lodispoto, pro se
                                        6805 Lebanon Rd. Apt. 512
                                        Frisco, Texas 75034
                                        Tel: (214) 215-0275

Appellee:                              Adi Ruvolo

Trial Counsel for Appellee:             Julia Henry
                                        Texas Bar No. 00787678
                                        Geary Porter & Donovan, L.L.C.
                                        16475 Dallas, Parkway, Suite 400
                                        Dallas, Texas 75225
                                        Tel: (972) 931-9901
                                        Fax: (972) 931-9208
                                      TABLE OF CONTENTS

Identity of Parties and Counsel ....................................................................... ii

Table of Contents ................................................................................... iv

Index of Authorities ........................................................................................

Statement of the Case ......................................................................................

Issues Presented for Review ............................................................................

Statement of Facts ...........................................................................................

Summary of the Argument ......................................................................................

Argument .................................................................................................................

         I.       The doctrine of invited error bars Father from challenging
                  the
                 sufficiency of the evidence on appeal ............................................. .

         II.      Father is precluded from challenging the trial court's findings
                  that a
                  material and substantial change of circumstances occurred
                  because Father judicially admitted such change of
                  circumstances in his pleadings. ........................................................

          A.                 Father presents a legal sufficiency complaint. .............

          B.            The modification standard requires a showing of a change
                        of circumstances to open the prior order for modification;
                        there is no requirement for a party to provide evidence of
                        a separate change of circumstances as to each subpart of
                        the prior order. ........................................................
         C.             The best interest of the child standard controls the
         allocation of the rights and duties to the child among the parents ...........

         D.                  Prayer .............................................................................
VI.       Trial court did abuse its discretion in awarding child support in
      excess of the guidelines provided by the Texas Family Code.
      (Responsive to Father's 1' Issue Presented) ...................................

      A.     The complaint is one of legal sufficiency of the evidence as part
            of the overall abuse of discretion analysis ...................................

      B.     Both parties plead for modification of the support obligation,
             judicially admitting that a change of circumstances occurred
             sufficient to support modification. ..........................................

      C.     The evidence supports does not the trial court's decision to
             award child
            support in excess of the guidelines.. .....................................
Certificate of Service .........................................................................................




                                                       -vi-
                                           INDEX OF AUTHORITIES
Cases

Bluestar Energy, Inc. v. Murphy, 205 S.W.3d 96 (Tex. App. — Eastland 2006, pet.
      denied) ............................................................................................................

Bradford v. Vento, 48 S.W.3d 749 (Tex. 2001) ........................................................
Carter v. William Sommerville and Son, Inc., 584 S.W.2d 274 (Tex.1979).. ...............

        Cass vStephens,156 S.W.3d 38 (Tex. App. — El Paso 2004, pet. denied).
 Casteel-Diebolt v. Diebolt, 912 S.W.2d 302 (Tex.App. — Houston [14`t' Dist.] 1995,

         no writ) .........................................................................                      ,

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) .............

Croucher v. Croucher, 660 S.W.2d 55 (Tex. 1983) .................                                                    ,

Dallas County v. Sweitzer, 881 S.W.2d 757, 770 (Tex. App. — Dallas, 1994, writ.
      denied.) ...........................................................................................................
Dallas Morning News Co. v. Board of Trustees Dallas !SD, 861 S.W.2d 532(Tex.
      App. — Dallas 1993, writ denied) ...........................................................................

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex.1985), cert. denied,
    476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986) ..................................

D.R. v. J.A.R., 894 S.W.2d 91 (Tex. App. — Fort Worth 1995, writ denied). . ... . ..
Fair v. Davis, 787 S.W.2d 422 (Tex. App. — Dallas 1990, no writ) .................................

Gentry v. Squires Constr. Inc., 188 S.W.3d 396 (Tex. App. — Dallas 2006, no pet.)


Hodson v. Keiser, 81 S.W.3d 363(Tex. App. — El Paso 2002, no pet.).. . .
Holley v. Adams, 544 S.W.2d 367(Tex. 1976) ..........................................................
Interest of D. M. D. , 2009 WL 280465 (Tex. App. — Dallas 2009, reh'g over ruled). .



                                                              -vi-
 In the Interest of Gonzalez, 993 S.W.2d 147 (Tex. App. – San Antonio 1999, no
        pet ..................................................................................................................
                  )




 Jenkins v. Jenkins, 16 S.W.3d 473 (Tex. App. – El Paso 2000, no pet.)... . . ..............

Jones v. Strayhorn, 321 S.W.2d 290 (Tex. 1959) .......................................................... .

   Keith v. Keith, 221 S.W.3d 156 (Tex. App. – Houston [1st Dist.] 2006, no pet.). . .

Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931 (Tex. App. – Austin 1987, no
     writ) ...............................................................................................................................

Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002) ......................................................................

Lindsey v. Lindsey, 965 S.W.2d 589 (Tex. App. – El Paso 1998, no pet.). . ...............

McKenzie v. Carte, 385 S.W.2d 520 (Tex. Civ. App. – Corpus Christi 1964, writ ref d
                 n     .    r      .     e                                   .,                       )




Moroch v. Collins, 174 S.W.3d 849 (Tex. App. – Dallas 2005,
     pet. denied). ..........................................................................
                                                                                                                      ,       ,
 Naguib v. Naguib, 137 S.W.3d 367 (Tex. App. – Dallas 2004, pet. denied) ..                                                       .,

Operation Rescue-National v. Planned Parenthood, 937 S.W.2d 60 (Tex. App. –
     Houston [14th Dist.] 1996), aff'd as modified on other grounds, 975 S.W.2d
     5 4 6       ( T e x .             1 9 9 8 )

Palacios v. Palacios,         S.W.3d               , 2009 WL 1653453 (Tex. App.—Amarillo
      2009, no pet. h.) ................................................................................................ .

Pinnacle Homes, Inc. v. R.C.L. Offshore Engineering Co., 640 S.W.2d 629 (Tex.
            App. – Houston [14th Dist.] 1982, writ ref d n.r.e . )

Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645 (Tex.1965) ...............
Starck v. Nelson, 878 S.W.2d 302 (Tex. App. – Corpus Christi 1994, no writ)...

Sterner v. Marathon Oil Co., 767 S.W.2d 686 (Tex. 1989) .......................................
Thompson v. Thompson, 827 S.W.2d 563 (Tex. App. — Corpus Christi 1992, writ
denied) ...................................................................................................................... .

Traweek v. Larkin, 708 S.W.2d 942 (Tex. App. — Tyler 1986, writ.... refd n.r.e). .17, 19
 Worford v. Stamper, 801 S.W.2d 108 (Tex.1990) .............

Statutes:

Tex. R. Civ. P. 298 ...................................................................
                                                                                                                        .,
Tex. Fam. Code §153.001 ........................................................

Tex. Fam. Code §153.134(a) ....................................................

Tex. Fam. Code §153.134(b) ...................................................                              ,

Tex. Fam. Code §154.125 .........................................................

Tex. Fam. Code §154.126 .........................................................

Tex. Fam. Code §154.183 ........................................................

Tex. Fam. Code §156.101(a)(1) ...............................................

Tex. Fam. Code §156.401 ........................................................                            ,

Tex. Fam. Code §156.402 .....................................................

Secondary Authority

W. Wendell Hall, Standards of Review in Texas, 29 St. Mary's L.J. 476-77 (1998)
    and Robert W. Calvert, No Evidence" and "Insufficient Evidence" Points of
    E r r o r , 3 8 T e x . L . R e v . 3 6 1 ( 1 9 6 0 )         2 3 , 2 4




                                                           -viii-
                          STATEMENT OF THE CASE
      This appeal stems from proceedings before the 442' Judicial District Court,

as follows:

               Divorce Entered in New York via Stipulated
10/08/2006                                                         1 CR at pg 4
               Settlement
08/01/2011       Mother and minor child moved to Denton County,
                                                         Texas
12/16/2011
                           Father moved to Denton County, Texas

11/02/2012          Mother requests civil warrant be issued against 2 CR pg 1
                                    father in Collin County, Texas
01/03/2013    Father's     Petition Modify       Parent Child      1 CR at pg 1
               Relationship with Entry of Foreign Judgment
               filed
               Mother goes to New York without serving or
                                                                   1 R R at
               noticing father to obtain a New York Order
                                                                   P g 7, l i n e s
               changing custody and increasing child support
                                                                   7-25;
01/04/2013     to $1600/month. Mother was forum shopping
                                                                   P g. 8 l i n e s
               and made false statements under oath that
                                                                   1-25; Pg. 9
               father did not pay mother child support for seven
                                                                   l i n es 9 - 1 8
               years.
              Transcript from Denton County Court in which         2 RR at pg. 40,
03/22/2013
              mother states, father “never paid” child support.    line 40
              Father files First Amended Answer to Mother’s
                                                                   3 CR with
08/08/2013    Motion for Enforcement with cancelled checks
                                                                   Exhibits.
              signed by mother attached.
006/25/2015     The 442nd held a hearing on Father’s Motion to Requesting
               Modify Custody, Decrease Child Support, and the
                      validity of the 01/04/2013 New York Order.
 2015                     Judge Tiffany Heartling renders her decision via Email from
                            email that denies all of father’s request and to Court
                          uphold a New York Order that requires father to
                        pay $1600/ month in Child support instead of 20%
                                      of his income which is $267/ month.



         See In re?. Massourni, No. 05-08-01074-CV; 2008 WL 4881328 (Tex. App. — Dallas) (orig.
proceeding).
      2
          See Id.

      3 Father      filed no request for amended or additional findings of fact.




                                                         -x-
                       ISSUES PRESENTED FOR REVIEW

I.    The doctrine of invited error bars Father from challenging the sufficiency of the
      evidence on appeal.

II.   Father is precluded from challenging the trial court's findings that a material
      and substantial change of circumstances occurred because Father judicially
      admitted such change of circumstances in his pleadings.

III. Trial court did abuse its discretion in awarding child support in excess of
     the guidelines provided by the Texas Family Code.
                            CAUSE NO. 05-_________________

                                    IN THE
                      FIFTH DISTRICT COURT OF APPEALS
                                at Dallas, Texas

                       In the Interest of M.D.L., a Minor Child.

                       Appealed from the 442 District Court of
                               Denton County, Texas

                BRIEF OF APPELLEE MICHAEL. A. LODISPOTO


      Appellant, MICHAEL A. LODISPOTO files this her Appellant's Brief.

For convenience and continuity, Appellant, MICHAEL A. LODISPOTO, will be

referred to herein as "Father"; Appellee, ADI RUVOLO, will be referred to herein as

"Mother". The child the subject of this suit will be referred to herein as 'child".

      Further, the Clerk's Record and Reporter's Record will be referred to herein
as "CR" and "RR" respectively, preceded by volume reference and followed by page
reference.
                             STATEMENT OF FACTS

      The litigation between Father and Mother initially began on January 3, 2013.

(1 CR .) Final trial in the divorce was held on about October 8, 2006. (1 CR pg 4

and styled (Stipulated Settlement.) The initial decree was signed on about October

8, 2006. The trial court's final divorce order granted the parties joint managing

conservatorship, with Mother having the right to determine the primary residence of

the child and the parties having essentially equal parenting time with the child and

standard shared rights and duties for joint managing conservators. (1 CR page 4.)

Both parents were given the right, subject to the agreement of the other parent, to

make educational decisions, consent to medical, dental and surgical treatment

involving invasive procedures, and the right to consent to psychiatric and

psychological procedures. (1 CR, page 4.) Father was ordered to pay $520/month in

child support.

After seven years after the initial Final Decree of Divorce in New York was signed,

Father filed a petition to modify in where Mother, Father, and child resided in Denton

County Texas for the prior two years


      After pending for over two years, the modification hearing for Temporary Orders

was initially scheduled for June 25, 2015. Father was seeking to Quash the January

4, 2013 Order New York Order because New York did not have jurisdiction at the

time but Denton County, Texas did and does have jurisdiction.        Father was not




                                       -14-
noticed or served with the New York suit changing custody, child support, and

reducing Father’s visitation to supervised without any extenuating circumstances.


      Mother filed a civil counter-suit against Father in September, 2012 in Collin

County, Texas and requested the Court serve Father at his residence at 6805

Lebanon Rd, Apt 512, Frisco, Texas 75034. Mother subsequently requested a “Writ

of Attachment” be issued against father (2 CR page 1) on November 2, 2012 at his

residence at 6805 Lebanon Rd., Apt, 512, Frisco, TX 75034 in Denton County, Texas.


      On or about December, 2012, Mother files a Modification Suit against Father in

Queens New York and issued service on an African American Female. Father is a

Caucasian Male.


       At the January 4, 2013, hearing, the evidence presented showed many

uncertainties false statements about Father. Mother testified that Father was not

making child support payments and had not made payments for years. Father

obtained the cancelled check endorsed by Mother in excess of the amount of child

support she was owed.

      Evidence was presented at hearing that Father's income was $10/

hour with a 40 hour work week which is an annual income of approximately

$20,800.00, for the years of 2014, $10,000 for 2013, and $25,628 for 2012,

respectively. (2 RR.) Further, Father admitted that had he not lost so much money

through lawsuit filed by Mother in Collin County, Texas.



                                       -15-
      At the conclusion of the hearing, the judge determined that entry of a

temporary order without any findings of fact or conclusion of law.

       In the Interim Temporary Orders, the judge maintained the restriction on the

Father’s visitation, denied his request for a decrease in child support, upheld an

uncertified foreign judgment from a New York Court that clearly did not have

jurisdiction over the parties nor the child. Judge in her email ruling denied any

hearings in the 442nd Judicial District Court until the final trial which to date is not set.

Father is precluded from access to the Trial Court based upon Judge Tiffany

Heartling’s ruling barring Father from a hearing. Requesting CR.)

                          SUMMARY OF THE ARGUMENT
       Father complains that the evidence was insufficient to support the trial court's

judgment modifying the parties' divorce decree, thus rising to the level of an abuse

of the trial court's discretion. Father complains that there was evidence of the

required prerequisite of a material and substantial change of circumstances where

he judicially admitted such a change existed in his pleadings. The evidence is

sufficient to support Father’s complaint that the trial court's decision, largely denying

Father's requested modification based on his failure to provide evidence in support

of his request for relief, and granting Mother's request based on hearsay evidence.

The trial court had sufficient evidence upon which to base her decision and, based

on that evidence, did not reach a result that was reasonable, so she did abuse her

discretion. The trial court's judgment should be reversed and remanded.


                                          -16-
                                     ARGUMENT

I.     The doctrine of invited error bars Father from challenging the sufficiency
      of the evidence on appeal.

      The concept of invited error not only is well established in Texas

jurisprudence, but also prevents a litigant from complaining about mistakes that he

helped cause. Palacios v. Palacios, S.W.3d , 2009 WL 1653453 (Tex.

App.—Amarillo 2009, no pet. h.) ; Bluestar Energy, Inc. v. Murphy, 205 S.W.3d 96,

101 (Tex. App. — Eastland 2006, pet. denied); Keith v. Keith, 221 S.W.3d 156, 163

(Tex. App. — Houston [1st Dist.] 2006, no pet.); see also Naguib v. Naguib, 137

S.W.3d 367, 376 (Tex. App. — Dallas 2004, pet. denied.) ("a party to a lawsuit cannot

ask something of a trial court and then complain on appeal that the trial court

committed error in granting that party's request"); Dallas County v. Sweitzer, 881

S.W.2d 757, 770 (Tex. App. — Dallas, 1994, writ. denied.) ("A party cannot complain

on appeal of action which he induced or allowed"). This rule is grounded in even

justice and dictated by common sense. Naguib, 137 S.W.3d at 376.


      A court may modify an order that provides for the appointment of a

conservator of a child, that provides the terms and conditions of conservatorship, or

that provides for the possession of or access to a child if modification would be in the

best interest of the child and the circumstances of the child, a conservator, or other

party affected by the order have materially and substantially changed since the

                                        -17-
earlier of the date of the rendition of the order, or the date of signing of a mediated

or collaborative law settlement agreement on which the order is based. Tex. Fam.

Code §156.101(a)(1). Where, as here, both parties have filed competing petitions

seeking modification of the prior orders and both parties allege a change of

circumstances, then both parties have judicially admitted a change of circumstances

exists to warrant modification of the prior order without further proof of such

circumstances at trial. See Thompson, 827 S.W.2d at 566 and Casteel-Diebolt, 912

S.W.2d at 305.


       Any modification of the prior orders must also be in the best interest of the
child. The non-exclusive factors to consider when determining the child's best

interest in a conservatorship proceeding include, but are not limited to:

       1.     The desires of the child;
       2.     The emotional and physical needs of the child now and in the future;
       3.     The emotional and physical danger to the child now and in the future;
       4.     The parental abilities of the individuals seeking custody;
       5.     The programs available to assist these individuals to promote the best
              interest of the child;
       6.     The plans for the child by these individuals or by the agency seeking
              custody;
       7.     The stability of the home or proposed placement;
       8.     The acts or omissions of the parent which may indicate that the existing
              parent-child relationship is not a proper one; and
       9.     Any excuses for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 271-72 (Tex. 1976). Further, consideration of

best interest requires the court to give deliberate though to and weigh all facts and

circumstances that bear directly or indirectly on a child, including but not limited to

present or future physical, mental, emotional, educational, social, disciplinary, and

                                        -18-
moral welfare, well-being, stability, and developmental needs. Fair v. Davis, 787

S.W.2d 422, 428-29 (Tex. App. — Dallas 1990, no writ).


      In determining whether to order joint managing conservatorship, a court

should consider the following factors (applicable to an original suit, but instructive in

a modification proceeding as well):


       1.     Whether the physical, psychological, or emotional needs and
              development of the child will benefit from the appointment of joint
              managing conservators;
       2.     The ability of the parents to give first priority to the welfare of the child
              and reach shared decisions in the child's best interest;

       3.     Whether each parent can encourage and accept a positive relationship
              between the child and the other parent;

              Whether both parents participated in child rearing before the filing of
              the suit;

        5.    The geographical proximity of the parents' residences;

        6.    If the child is 12 years of age or older, the child's preference, if any,
              regarding the person to have the exclusive right to designate the
              primary residence of the child; and,
        7.    A ny ot her r el e va nt f ac t or .
Tex. Farn. Code §153.134(a). In rendering an order appointing joint managing

conservators, the court shall:


      1.     Designate the conservator who has the exclusive right to determine the
             primary residence of the child and

              a.     Establish, until modified by further order, a geographic area
                     within which the conservator shall maintain the child's primary
                     residence; or

                                           -19-
               b.    Specify that the conservator may determine the child's primary
                     residence without regard to geographic location;

         2.   Specify the rights and duties of each parent regarding the child's
              physical care, support and education;

         3.   Include provisions to minimize disruption of the child's education, daily
              routine, and association with friends;

              Allocate between the parents, independently, jointly, or exclusively, all
              of the remaining rights and duties of a parent as provided by Chapter
              151; and,
     5.       If feasible, recommend that the parties use an alternative dispute
              resolution method before requesting enforcement or modification of the
               terms and conditions of the joint conservatorship through litigation,
               except in an emergency.

Tex. Fam. Code §153.134(b). The trial court retains broad discretion in crafting the

rights and duties of each conservator so as to effectuate the best interest of the

child. Jenkins v. Jenkins, 16 S.W.3d 473, 482-83 (Tex. App. — El Paso 2000, no

pet.).

         In the context of relocation cases, the Texas Supreme Court instructs that the

public policies outlined in §153.001(a) should be considered. Lenz v. Lenz, 79

S.W.3d 10, 14 (Tex. 2002). Section 153.001 states that the public policy of the State

of Texas is to:


         1.    Assure that children will have frequent and continuing contact with
               parents who have shown an ability to act in the best interest of the
               child;
         2.    Provide a safe, stable and nonviolent environment for the child; and,
         3.    Encourage parents to share in the rights and duties of raising their child
               after the parents have separate or dissolved their marriage.
                                          -20-
Tex. Fam. Code §153.001. The Lenz court also noted that a wide array of other

factors can be relevant to the determination of a child's best interest after parental

relocation. These include the reasons for and against the move; the education,

health, and leisure opportunities afforded by the move; the accommodation of the

child's special needs or talents; the effect on extended family relationships; the effect

on visitation and communication with the noncustodial parent; the noncustodial

parent's ability to relocate; and the child's age. Lenz, 79 S.W.3d at 15-16.




                                         -21-
VI.             Trial court did abuse its discretion in awarding child support in
            excess of the guidelines provided by the Texas Family Code.
            (Responsive to Father's 15` Issue Presented)?


            Father complains that the trial court ordered him to pay child support in excess

of the guidelines including a percentage that is in access of !00% of his annual

income. 2 RR) He complains that there is no evidence to support any proven need

of the child in excess of the child support guidelines. In addition, Father appears to

also complain that there is no evidence to support the trial court's allocation of

uninsured medical expenses.

        A.        The complaint is one of legal sufficiency of the evidence as part of the
                 overall abuse of discretion analysis.


        As acknowledged herein, in family law cases, the abuse of discretion standard
of review overlaps with the traditional sufficiency standard of review; as a result,



        7
         While Father's attempts to argue that the trial court's order with respect to private school tuition is
"too vague to be enforceable", such argument is inappropriate as this is not an enforcement action.
Vagueness of an order does not amount to error on the part of the trial court, and various remedies with
respect to clarification are available pursuant to the Texas Family Code in order to address this issue
should it arise. (See Appellant's Brief at 21.)




                                                    -22-
 legal and factual sufficiency are not independent grounds of reversible error, but

instead constitute factors relevant to the assessment of whether the trial court

abused its discretion. Moroch, 174 S.W.3d at 857.


       Where the appellant complains of a ruling on an issue raised and requested

by the opposing party, the complaint is one of no-evidence. Croucher v. Croucher,

660 S.W.2d 55, 58 (Tex. 1983). The appellant must show that there is no evidence

supporting the challenged element, the evidence is no more than a scintilla, the

evidence establishes the opposite of the challenged element, or that the court is

barred by law or rules of evidence from considering the only evidence offered to

prove the challenged element. City of Keller v. Wilson, 168 S.VV.3d 802, 810 (Tex.

2005). The scope of review requires the appellate court to give credit to evidence

favorable to the decision where reasonable and disregard evidence to the contrary

unless a reasonable fact-finder could not. Id. at 827.


      B.     Both parties plead for modification of the support obligation, judicially
            admitting that a change of circumstances occurred sufficient to support
            modification.
      A court may modify an order that provides for a child support obligation if the

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

materially and substantially changed since the earlier of the date of the rendition of

the order, or the date of signing of a mediated or collaborative law settlement

agreement on which the order is based, or if it has been three years since the order

was rendered or last modified. Tex. Fam. Code §156.401. Where, as here, both


                                        -23-
parties have filed competing petitions seeking modification of the prior child support

orders (2 CR 237, 265) and both parties allege a change of circumstances, then both

parties have judicially admitted a change of circumstances exists to warrant

modification of the prior order without further proof of such circumstances at trial.

See Thompson, 827 S.W.2d at 566 and Casteel-Diebolt, 912 S.W.2d at 305.


      Where the obligor's net resources exceed the guideline support level in

§154.125, the court must first apply the guidelines to the portion of net resources

that does not exceed that amount, then the court "may order additional amounts of

child support as appropriate, depending on the income of the parties and the proven

needs of the child". Tex. Fam. Code §154.126. The statute mandates that the court

must only consider the needs of the child and the parties' income in arriving at that

decision, and that the amount allocated cannot exceed the proven needs of the

child. Id. The trial court retains the discretion to decide within those parameters the

amount of support over the guidelines. Id.


      The proper calculation for support over the guidelines be gins with

consideration of the guideline amount as compared to the proven needs of the child,

then the trial court must allocate between the parties the responsibility to meet the

additional needs of the child according to their circumstances. Id.


      C.    The evidence supports the trial court's decision to award child support
            in excess of the guidelines.


                                         .24-
       There was no finding at that time that the amount of child support awarded to

Mother was in accordance with the guidelines of the Texas Family Code.


      At the time of trial, the disparity in the parties incomes continued to exist, with

Father making approximately $20,800.00 in the previous year and Mother making

approximately $65,000.00 over the same time period.


      Father complains that the regular monthly child support obligation ordered by

the trial court of $1,600 per month exceeds the application of the guidelines to the

first amount of net resources under the law applicable at the time his initial

modification was filed. Mother contends that, even if Father's position is correct

regarding the applicable law in effect at the time of the filing of the initial modification
suit, the evidence does not support providing child support in excess of the guidelines
so his complaint is valid.

       Even so, the trial court had the discretion to apply the guidelines according to

the law that came into being after his initial modification suit was filed. Section

156.402 provides that, where the amount of support contained in the order does not

substantially conform with the guidelines, the court may modify the support obligation

to conform to the guidelines. Tex. Fam. Code §156.402. Further, it is a waste of

judicial economy and resources to set a guideline child support amount in a final

order that becomes modifiable under the law the minute it is set. The trial court

could easily have taken judicial notice of the previous law and the current law and

set the child support amount in such a way that it reduced the amount of litigation


                                            -25-
between the parties instead of exacerbating it.

                                     PRAYER

     WHEREFORE, PREMISES CONSIDERED, MICHAEL A. LODISPOTO,
Appellant, prays this Court reverse and remand the judgment of the trial court.
                                              Respectfully submitted,
                                                  /s/ Michael Lodispoto
                                              Michael LodispotoT
                                              Prose
                                              6805 Lebanon Rd.
                                              Apt 512
                                              Frisco, Texas 75034
                                              Tel: (214) 215-0275
                                              Email: lodispoto@gmail.com




                                       -26-
                          CERTIFICATE OF SERVICE
      The undersigned hereby certifies that a true and correct copy of the foregoing

document was served on Julia Henry, counsel for Appellee ADI RUVOLO, via e file

service pursuant to the Texas Rules of Appellate Procedure on October 27, 2015.

                                             /s/ Michael Lodispoto

                                            Michael A. Lodispoto
