Affirmed and Majority and Concurring Opinions filed October 1, 2013.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-12-00440-CV

               IN THE INTEREST OF L.R. AND A.R., Children


                    On Appeal from the 300th District Court
                           Brazoria County, Texas
                         Trial Court Cause No. 48170

                  CONCURRING OPINION

      In this appeal from the trial court’s denial of a mother’s petition to modify
the parent-child relationship as to her two minor children, the sole issue presented
is whether the trial court reversibly erred by ruling that certain documents were not
discoverable because they were irrelevant and not reasonably calculated to lead to
the discovery of admissible evidence. It is clear that any such error did not
probably cause the rendition of an improper judgment or probably prevent the
mother from properly presenting this case to the court of appeals. To affirm the
trial court’s judgment it is not necessary to address the father’s law-of-the-case
argument. In addressing this argument, the majority tackles matters not necessary
to the law-of-the-case analysis. The better course would be to affirm the trial
court’s judgment based solely upon the absence of reversible error.

Any error in the trial court’s discovery ruling was not reversible error.
      As pertinent to the issue presented, to be entitled to modification of the
divorce decree’s child-support provisions, the mother was required to prove that
the circumstances of one of the children or one of the parents have changed
materially and substantially since the date of the divorce decree. See Tex. Fam.
Code Ann. § 156.401(a) (West 2013). Even upon proof of such a change in
circumstances, the trial court still has broad discretion to determine whether to
modify the child-support provisions of the divorce decree. See In re D.S., 76
S.W.3d 512, 520 (Tex. App.—Houston [14th Dist.] 2002, no pet.). For individuals
like the father, whose monthly net resources exceed $7,500, the trial court has
discretion to order child-support payments in excess of the amount of the monthly
payment established by the child-support guidelines, to meet the proven needs of
the children. See Tex. Fam. Code Ann. §§ 154.125, 154.126 (West 2013).

      Under the divorce decree, the father had the exclusive right to designate the
children’s primary residence, and the father had to pay for the children’s medical
expenses. On appeal, the mother is not challenging the trial court’s denial of her
request that the decree be modified to give her the exclusive right to designate the
children’s primary residence. Nor does the mother challenge the trial court’s
conclusion that she failed to introduce evidence at trial raising a fact issue as to
whether the circumstances of a child or a parent had changed materially and
substantially since the date of the divorce decree. The father testified that he
would have been able to pay $10,000 per month in child support if the trial court
had ordered him to do so in the divorce decree. The father also testified that he

                                         2
would be able to pay $10,000 per month in child support if the trial court ordered
him to do so in the modification proceeding. The evidence shows that the father’s
financial resources were more than sufficient to provide for the needs of his
children and to pay any court-ordered child support both on the date of the divorce
decree and when the mother sought modification.

      Presuming for the sake of argument that the trial court erred in concluding
that the documents in question were not discoverable and that these documents
would show the value of certain assets owned by the father, any such evidence
would not have raised a genuine fact issue as to whether the circumstances of one
of the children or one of the parents had changed materially and substantially since
the date of the divorce decree. It is clear that any such error did not probably cause
the rendition of an improper judgment or probably prevent the mother from
properly presenting this case to the court of appeals. See Johnson v. Davis, 178
S.W.3d 230, 243–44 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (holding
that trial court’s error in granting protective order did not probably cause the
rendition of an improper judgment or probably prevent the mother from properly
presenting this case to the court of appeals). See also Elizabeth G. Thornburg,
Interlocutory Review of Discovery Orders: An Idea Whose Time Has Come, 44
Sw. L.J. 1045, 1056 (1990) (stating that “even if the party aggrieved by the
discovery order lost the case at trial and appealed, only an unusual discovery order
would be dispositive enough to show the harmful error that most jurisdictions
require for appellate reversal”).

Because any error was not reversible, this court need not and should not address
the father’s law-of-the-case argument as to why this court should affirm the trial
court’s judgment.
      On appeal, the only issue before this court is whether the trial court
reversibly erred by ruling that certain documents were not discoverable. In his

                                          3
appellate brief, the father asserts that this issue lacks merit for four different
reasons, including these two:

             under the law-of-the-case doctrine, this court should decline the
             mother’s invitation to revisit this court’s previous ruling on the same
             issue in its denial of the mother’s mandamus petition regarding the
             same trial court ruling; and

             even if the trial court abused its discretion, any such error did not
             probably cause the rendition of an improper judgment or probably
             prevent the mother from properly presenting this case to the court of
             appeals.

If either of these arguments have merit, then this court should affirm the trial
court’s judgment.

      The law-of-the-case doctrine is discretionary and prudential, rather than
jurisdictional or mandatory. See City of Houston v. Jackson, 192 S.W.3d 764, 769
(Tex. 2006). Because any error is not reversible, resolution of the law-of-the-case
argument is not necessary to the disposition of this appeal. Accordingly, this court
need not and should not address the father’s law-of-the-case argument. See, e.g.,
Sonat Exploration Co. v. Cudd Pressure Control, Inc., 340 S.W.3d 570, 577 (Tex.
App.—Texarkana 2011, no pet.) (concluding that court need not and would not
address appellee’s law-of-the-case argument because it was not necessary to the
disposition of the appeal).

In the law-of-the-case analysis, the only issue is whether this court commented
on the merits of the mandamus petition.
      Even if it were proper to address the father’s law-of-the-case argument, the
issue would be whether, in its prior opinion in the mandamus proceeding, this court
commented on the merits of the mandamus petition, not whether this court ruled on
the merits. See Perry Homes v. Cull, 258 S.W.3d 580, 586 (Tex. 2008); Chambers

                                         4
v. O’Quinn, 242 S.W.3d 30, 32 (Tex. 2007). In a mandamus opinion, a court of
appeals may deny mandamus relief on the merits without commenting on the
merits. See Tex. R. App. P. 52.8(d). See also In re City of Georgetown, 53 S.W.3d
328, 337 (Tex. 2001) (Hecht, J., concurring) (noting that, in an appeal, a court of
appeals is obliged to explain its decision by written opinion but that there is no
such requirement when a court of appeals denies a petition for mandamus).

      Thus, even if it were proper to address the law-of-the-case argument, it still
would be unnecessary to interpret the language of this court’s prior opinion in the
mandamus proceeding to determine the basis for this court’s ruling on the
mandamus petition.    See ante at pp. 4–6; Perry Homes, 258 S.W.3d at 586;
Chambers, 242 S.W.3d at 32. The majority concludes that this court denied the
mother’s petition because she failed to provide an adequate record, and the
majority mentions nothing about the merits of the petition. See ante at pp. 4–6.
Thus, the majority suggests that this court did not rule on the merits of the
mandamus petition. See id. Even if it were proper to address the law-of-the-case
argument, the only issue would be whether, in its prior opinion in the mandamus
proceeding, this court commented on the merits of the mandamus petition. See
Perry Homes, 258 S.W.3d at 586; Chambers, 242 S.W.3d at 32. It would be
unnecessary to determine the basis for this court’s ruling on the mandamus petition
or to suggest that this court did not rule on the merits of the mandamus petition.
See Perry Homes, 258 S.W.3d at 586; Chambers, 242 S.W.3d at 32.

                                   Conclusion

      The only issue presented is whether the trial court reversibly erred by ruling
that certain documents were not discoverable.      Any such error would not be
reversible. To affirm the trial court’s judgment this court need not and should not
tackle the father’s law-of-the-case argument. Instead, this court should affirm the

                                         5
trial court’s judgment solely because there is no reversible error. Because it does
not, I respectfully decline to join the majority opinion, but I concur in the court’s
judgment.




                                       /s/       Kem Thompson Frost
                                                 Chief Justice


Panel consists of Chief Justice Frost and Justices Brown and Busby. (Busby, J.,
majority).




                                             6
