
COURT
OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT WORTH
NO. 2-02-407-CV
 
IN THE INTEREST OF Z.B.P. AND J.N.P.
 
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FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY
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OPINION
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Appellant Fleta Dianne Peterson and Appellee and cross-Appellant William
Peterson appeal from the trial court's order modifying the parent-child
relationship. Appellee sued Appellant, seeking to modify the provisions of an
agreed divorce decree relating to their children, nine-year-old Z.B.P. and
eight-year-old J.N.P.(1) After a bench trial, the
trial court rendered a modification order that changed the children's primary
residence from Appellant to Appellee, greatly reduced Appellant's possession of
the children, and ended Appellee's obligation to pay child support.
       
On appeal, Appellant contends that the trial court abused its discretion in
signing the order because the evidence is legally and factually insufficient to
support the modification and that the trial court erred in ending Appellee's
monthly child support obligations. In his cross-appeal, Appellee contends that
the trial court erred in failing to order Appellant to pay child support and in
failing to award attorney's fees to him. We affirm.
Factual
Background
       
Appellant and Appellee were divorced in 1996 when Z.B.P. was four years old and
J.N.P. was two years old. Appellee, who is an attorney, drew up the agreed
divorce decree (the "decree"), which he and Appellant signed. Under
the terms of the decree, Appellant and Appellee agreed to act as joint managing
conservators of Z.B.P. and J.N.P. and to limit the children's residence to
Tarrant County. In addition, Appellee was to pay $1,500 a month in child support
and one-hundred percent of the children's uninsured medical expenses.
       
In 1997, Appellant indicated that she wanted to move to Springtown in Parker
County, Texas, on a temporary basis. Although this move violated the terms of
the decree, Appellee conceded to the move based on Appellant's agreement that
the move would be temporary, that she would not cohabit with another woman, and
that the children would not attend Springtown schools. Shortly after moving to
Springtown, Appellant acquired a live-in female paramour in violation of her
agreement with Appellee. In addition, the move to Springtown became permanent.
       
Over the years, besides some disagreements over the children's medical care,
Appellant and Appellee got along reasonably well in sharing custody and
responsibility of the children. Appellee had possession of the children every
weekend and on Wednesday nights, and Appellant had possession during the
weekdays and the remaining weeknights. When the children reached school age,
Appellant drove the children daily to school in Keller, an approximately
two-hour, ninety-mile round trip.
       
Beginning in 1997, when Z.B.P., the older child, started school, an annual
dispute between Appellant and Appellee arose regarding the children attending
school in Springtown or continuing, as the parties had agreed, in Keller.
Appellant wanted the children to attend Springtown schools because she and the
children were tired of the long commute and the difficulty it caused in their
participation in extracurricular activities. Appellee wanted the children to
attend Keller ISD because he thought Keller schools were of a better quality
than those in Springtown. These disagreements escalated and cumulated in August
2001 when Appellant wrote a letter to Appellee stating that she was going to
unilaterally remove the children from the Keller ISD and enroll them in
Springtown. Appellee filed a temporary restraining order so they would continue
to be enrolled in Keller ISD.
       
Appellee filed an original petition seeking to modify the terms of the agreed
divorce decree to allow him to establish the children's residence. Appellant
filed a counter-petition requesting, among other things, that she remain primary
joint managing conservator, that she be granted the right to establish the
children's primary residence without domicile restrictions, the right to consent
to medical treatment, the right to make decisions concerning their education,
and the right to continue to receive support from Appellee.
       
After the bench trial, the trial court entered findings of fact and conclusions
of law in support of its order. Among other things, the trial court found that:
1) the circumstances of Z.B.P., J.N.P., Appellant, and Appellee had changed
since the entry of the agreed divorce decree due to the children's attaining
school age, both parents moving to new residences, and remarrying; 2) the
children endure a daily two-hour commute to their Keller ISD school; 3) the
children's current residence and school arrangement precludes some peer
relationships with their fellow students; 4) Appellant complains to the children
on a repeated basis regarding the commute to school; 5) the living arrangement
of the children in Parker County interferes with Appellant's and Appellee's
ability to attend the children's school and extracurricular functions; 6)
Appellee has a stable, traditional, family household environment, while
Appellant has a non-traditional, tumultuous household; 7) the children's
residence in Appellee's household will eliminate or minimize the children's
commute to school; 8) Appellant had incurred numerous unnecessary medical
treatments for the children; 9) Appellant's move to Springtown was in violation
of the agreed divorce decree; 10) the residence restriction in the divorce
decree to Tarrant County is in the best interest of the children; and 11)
Appellee has incurred $11,400 in attorney's fees for the prosecution of the
modification proceeding.
       
Also, based on the evidence before it, the trial court concluded that: 1) the
circumstances of Z.B.P., J.N.P., Appellant, and Appellee had changed since the
date of the agreed divorce decree; 2) Appellee should be named the joint
managing conservator with the rights to establish the residence of the children
in Tarrant County and to make decisions concerning their medical care and
education; 3) the Tarrant County residence restriction is in the best interests
of the children; and 4) Appellant should pay no child support, but should
provide support for them while they are in her possession and should pay for
one-half of their uninsured medical expenses. The trial court further found that
neither party would recover attorney's fees.
The
Findings of Fact
       
In her first issue, Appellant claims that the evidence is legally and factually
insufficient to support the trial court's findings. We review a trial court's
findings for factual sufficiency by the same standards used in reviewing jury
answers. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina
v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). We consider all the evidence
and set aside the findings only if they are so contrary to the overwhelming
weight of the evidence as to be clearly wrong and manifestly unjust. Cain v.
Bain, 709 S.W.2d 175, 176 (Tex. 1986).
       
In determining a "no-evidence" issue, we are to consider only the
evidence and inferences that tend to support the finding and disregard all
evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d
749, 754 (Tex. 2001); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d
444, 450 (Tex. 1996); In re King's Estate, 150 Tex. 662, 244 S.W.2d
660, 661 (1951). Anything more than a scintilla of evidence is legally
sufficient to support the finding. Cazarez, 937 S.W.2d at 450; Leitch
v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). More than a scintilla of
evidence exists if the evidence furnishes some reasonable basis for differing
conclusions by reasonable minds about the existence of a vital fact. Rocor
Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002).
       
An assertion that the evidence is "insufficient" to support a fact
finding means that the evidence supporting the finding is so weak or the
evidence to the contrary is so overwhelming that the answer should be set aside
and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.
1965). We are required to consider all of the evidence in the case in making
this determination. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402,
406-07 (Tex.), cert. denied, 525 U.S. 1017 (1998).
       
After our review of the record, we hold that the evidence is both legally and
factually sufficient to support the trial court's findings. We cannot say the
findings are so contrary to the overwhelming weight of the evidence as to be
clearly wrong and manifestly unjust. Cain, 709 S.W.2d at 176. We
overrule Appellant's first issue.
The
Modification Order
       
In her second through fourth issues, Appellant argues that the trial court
abused its discretion in naming Appellee as the joint managing conservator with
the right to establish the residence of the children.(2) 
We disagree.
Standard
of Review
       
We review the trial court's modification of managing conservatorship under an
abuse of discretion standard. In re T.D.C., 91 S.W.3d 865, 872 (Tex.
App.--Fort Worth 2002, pet. denied); In re R.D.Y., 51 S.W.3d 314, 317
(Tex. App.--Houston [1st Dist.] 2001, pet. denied); see Gillespie
v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982) (applying the same standard
of review in original determination of conservatorship). A trial court abuses
its discretion if it acts arbitrarily and unreasonably or without reference to
guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986).
       
In this case, we have been called upon to determine whether the trial court
abused its discretion in appointing Appellee as the joint managing conservator
with the rights to establish the residence of the children and to make decisions
concerning their medical care and education. A trial court may modify an order
that establishes conservatorship of or possession of and 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 date of the rendition of the
order." TEX. FAM.
CODE ANN.
§ 156.101 (Vernon 2002); In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000).
Best
Interests
       
A court's primary consideration in any conservatorship case "shall always
be the best interest of the child." Tex. Fam. Code Ann. § 153.002; V.L.K.,
24 S.W.3d at 342. Courts may use the nonexhaustive list of Holley
factors to determine the child's best interest. Holley v. Adams, 544
S.W.2d 367, 371-72 (Tex. 1976); T.D.C., 91 S.W.3d at 872; see also
In re Doe 2, 19 S.W.3d 278, 300 n.20 (Tex. 2000) (recognizing that
intermediate courts employ the Holley factors to ascertain best
interest in conservatorship cases). Those factors 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 excuse for the acts or omissions of the parent.
Holley, 544 S.W.2d at 371-72.
       
At trial, evidence was presented that Appellant often complained to the children
about the two-hour commute to and from school. She would tell them that she was
afraid she would fall asleep and have an accident, and the children were afraid
that "Mamma will fall asleep and she's going to die." Testimony also
exists that the children were having difficult times making and sustaining peer
relationships and participating in extracurricular activities because of their
residence circumstances, circumstances that Appellant had created in violation
of the decree.
       
In addition, a psychological evaluation of all the parties, conducted by Harry
P. Baker, Ph.D., was entered into evidence. Dr. Baker's report reflected that
Appellant's fears, anxieties, and concerns were being "projected onto the
children." Dr. Baker also noted the children had a fear of Appellee's
alcohol use and noted that they "strongly desire to remain in Springtown
with their mother and to attend school" there. The doctor reported that he
"would lean in favor of the court's granting their request."
       
A social study conducted by an authorized caseworker, Brad Carpenter, also was
entered into evidence. Carpenter concluded that the children should remain in
the Keller ISD. Carpenter concluded that Appellant often discussed with the
children her fears of having an accident while driving them to school, which had
led to a role reversal, giving the children the need to protect their mother.
This role reversal also impacted the children's desires to live in Springtown.
Carpenter observed that the circumstances requiring the commute were solely
created by Appellant.
       
Evidence was also presented that Appellee had remarried and was living with his
wife and two step-children in a traditional family environment. In contrast,
Appellant was living with her female paramour and her paramour's son in a
non-traditional family setting.
       
The children expressed their desires to go to school in Springtown. Evidence was
also presented that Appellee would provide an environment where the children
would know their role as a child rather than as an adult decision maker.
Appellant repeatedly emphasized through the trial that she wanted to honor the
children's desires concerning where they live and where they go to school,
decisions the case worker reported "are decisions best made by adults, not
children who have been placed in a role-reversal/care-taking position."
       
After our review of the record, we cannot say that the trial court's finding
that the appointment of Appellee as Z.B.P. and J.N.P.'s joint managing
conservator with the rights to establish the residence of the children and to
make decisions concerning their medical care and education is not in the
children's best interests. The evidence shows that Appellee will provide the
children with a traditional home where the children will be encouraged to
continue through high school and go to college, and where they will know their
roles as children rather than as adult decision makers. The evidence also shows
that living with Appellee will minimize the children's stressful daily commute
to and from school, and will facilitate the fostering of peer relationships. The
trial court clearly could have found that naming Appellee as the joint managing
conservator with the right to determine their residence, health care, and
education was in the children's best interests.
Material
and Substantial Change
       
We further conclude that the trial court did not err in finding a material and
substantial change. A court's determination as to whether a material change of
circumstances has occurred is not guided by rigid rules and is fact-specific. See
L.P.W. v. S.O., 669 S.W.2d 182, 184-85 (Tex. App.--Fort Worth 1984, no
writ).
       
Appellee agreed in a January 10, 1997 letter to allow the children to make a
"temporary" move to Springtown with Appellant. In his letter, Appellee
agreed to the move based on the assurance that the move would be temporary and
that no women would live with Appellant. A few months after moving to
Springtown, in violation of her agreement with Appellee, Appellant acquired a
live-in female paramour. In addition, the move became permanent. In 2001,
Appellant decided to unilaterally enroll the children in Springtown schools, in
further violation of the decree and her agreement with Appellee.
       
A voluntary arrangement between the parties is a matter which a court should
take into consideration in deciding whether an existing order should be changed.
Trader v. Dear, 565 S.W.2d 233, 237 (Tex. 1978) (orig. proceeding).
When, as in this case, parents have made an agreement after a court order, but
then have again fallen into disagreement, the court of continuing jurisdiction
must become the final arbiter about the managing conservatorship. Id.
Appellant and Appellee agreed upon a temporary move to Springtown, that
Appellant would not cohabit with another female, and that Z.B.P. and J.N.P.
would attend school in Keller. Appellant broke all of these agreements.
Appellant's permanent move of the children in violation of the decree and her
agreement with Appellant is enough to support a finding of changed conditions. See
Bartlett v. Bartlett, 293 S.W.2d 508, 513 (Tex. Civ. App.--Amarillo 1956,
writ ref'd n.r.e.) (holding that where the father had remarried and moved to
another state since the divorce decree, his taking the child out of the state
when he had custody of her, contrary to agreement of the parties, was sufficient
to show change in conditions since former award of divided custody, and the
trial court did not abuse its discretion in awarding full control and custody of
the child to her mother).
       
In addition to Appellant's violation of the decree and her agreement with
Appellee, the evidence showed many other changes in the circumstances of the
parties. After the divorce, Appellee moved, remarried, and now lives with his
wife and her two children. Since the divorce, Appellant has moved, and J.N.P.
and Z.B.P. have grown from toddlers to school-aged children. See In re Davis,
30 S.W.3d 609, 614-15 (Tex. App.--Texarkana 2000, no pet.) ("[T]he change
in a child from a babe in arms or toddler to a school-aged child in itself is
sufficient to show the material change necessary to support modification.")
(citing Horne v. Harwell, 533 S.W.2d 450, 452 (Tex. Civ. App.--Austin
1976, writ ref'd n.r.e.)). In addition, it was Appellant's sole decision to
violate the decree and live in Springtown, a decision that subjected her and the
children to a two-hour daily commute.
       
We hold that the trial court did not abuse its discretion in finding that the
parties' circumstances had changed. Accordingly, we overrule Appellant's second
through fourth issues.
Support
       
Appellant and Appellee both appeal the trial court's order which ordered that
Appellant should not make any child support payments to Appellee and eliminated
Appellee's child support payments to Appellant. In his first amended petition,
Appellee requested "that the Court make proper orders for the support of
the children," and that the trial court order Appellant to pay one-half of
the children's uninsured medical expenses. In her counter-petition, Appellant
requested that the court grant her "the right to receive and give receipt
for periodic payments for the support of the children."
       
In its order, the trial court found good cause to deviate from the family code's
child support guidelines. The trial court ordered that all prior orders of the
court regarding child support were terminated as of July 24, 2002, and that no
child support was payable at the present time. The trial court made a conclusion
of law that Appellant should pay one-half of the children's uninsured medical
expenses and provide support when the children were in her possession. In
addition, the trial court made a finding of fact that Appellant's "net
resources are based on minimum wage, as she is voluntarily unemployed," and
that Appellee's monthly net resources are $11,534.98.
       
The family code allows a trial court to modify a child support order upon the
showing that the circumstances of the child or a person affected by the order
have materially and substantially changed since the order was signed. Tex. Fam.
Code Ann. § 156.401(a)(1); Swate v. Crook, 991 S.W.2d 450, 452 (Tex.
App.--Houston [1st Dist.] 1999, pet. denied), abrogated on other
grounds by Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.--Houston [1st
Dist.] 1999, pet. denied). In a modification proceeding, the trial court
compares the financial circumstances of the child and the affected parties at
the time the support order was entered with their circumstances at the time the
modification is sought. Holley v. Holley, 864 S.W.2d 703, 706 (Tex.
App.--Houston [1st Dist.] 1993, writ denied). The movant has the
burden to show a material and substantial change by a preponderance of the
evidence. Id.
       
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.--Fort Worth 2000, no pet.); see also DuBois v. DuBois, 956
S.W.2d 607, 610 (Tex. App.--Tyler 1997, no pet.); Stocker v. Magera,
807 S.W.2d 753, 754 (Tex. App.--Texarkana 1990, writ denied). The test for abuse
of discretion is whether the court acted arbitrarily or unreasonably, that is,
without reference to guiding rules and principles. Tucker v. Tucker,
908 S.W.2d 530, 532 (Tex. App.--San Antonio 1995, writ denied). In making this
determination we must view the evidence in the light most favorable to the trial
court's actions and indulge in every legal presumption in favor of the judgment.
Id. If there is some probative and substantive evidence to support the
judgment, the trial court did not abuse its discretion. Id.
       
As a sub-issue to her fourth issue, Appellant contends that the trial court
abused its discretion in eliminating Appellee's child support payments to her.
She argues that Appellee did not meet his burden of showing that a material and
substantial change in financial circumstances has occurred since the entry of
the divorce decree and that the elimination of his child support payments is not
in the best interests of the children.
       
Appellant argues that Appellee had the burden of proving a change in financial
circumstances, which means he was required to present evidence of the parties'
financial condition at the time of the 1996 order and evidence of the parties'
financial conditions at the time of the hearing. See Swate, 991 S.W.2d
at 453. She argues that no evidence was presented showing the financial
circumstances of the parties at the time of the divorce. Without this evidence,
the trial court could not conclude whether there was a material and substantial
change in Appellee's circumstances. Id. Appellant argues that the only
evidence as to her financial condition was testimony that at the time of the
divorce she was unemployed and raising the two children, and that the only
evidence as to Appellee's financial condition was that he made child support
payments of $1,500 per month, which impliedly indicated that he earned $6,000
per month under the appropriate child support guidelines. See Tex. Fam.
Code Ann. § 154.125. The trial court found that Appellee's net resources at the
time of the modification hearing are $11,534.98 per month, which is evidence
that Appellee's monthly net resources have substantially increased. Appellant's
resources, on the other hand, have not increased, as she still remains
voluntarily unemployed. Appellant also argues that, because of the change in
possession of the children, the children's financial circumstances also have not
changed. While Appellee's weekday expenses may increase, his weekend expenses
will decrease. Likewise, while Appellant's weekday expenses will decrease, her
weekend expenses will increase.
       
We are not persuaded by Appellant's arguments. A parent's duty to support
encompasses both financial aid and services rendered to the children. Labowitz
v. Labowitz, 542 S.W.2d 922, 925 (Tex. Civ. App.--Dallas 1976, no writ); see
also Friedman v. Friedman, 521 S.W.2d 111, 115 (Tex. Civ. App.--Houston [14th
Dist.] 1975, no writ). Because the children no longer live with Appellant during
the week, she is no longer furnishing the degree of services to the children
that she did at the time of the divorce; Appellee, on the other hand, is
furnishing more services to the children than he did at the time of the divorce.
This, in and of itself, constitutes a material and substantial change requiring
the reallocation of financial obligations. See Labowitz, 542 S.W.2d at
925 (ordering the mother to pay child support when the children went to live
with their father so the mother could pursue a career because the mother was no
longer furnishing the degree of services to the children that she did at the
time of the divorce). We hold that the trial court did not abuse its discretion
in eliminating Appellee's child support payments, and we overrule the remainder
of Appellant's fourth issue.
       
We next examine Appellee's first related cross-issue in which he contends that
the trial court abused its discretion in not ordering Appellant to pay child
support.(3)  Appellee's main contentions are
the trial court erred in concluding that good cause exists to deviate from the
family code's child support guidelines and that its conclusion that Appellant
should not pay child support is against the policy of the State of Texas. See
Bailey v. Bailey, 987 S.W.2d 206, 208 (Tex. App.--Amarillo 1999, no pet.).
       
A trial court should order child support for the benefit of a child without
regard to the obligor's gender. Tex. Fam. Code Ann. § 154.010(1). Appellee
argues that if the circumstances were reversed, and he was the joint managing
conservator who was voluntarily unemployed, a trial court would not allow him to
get away with making no child support payments to Appellant. The appointment of
joint managing conservators does not impair or limit the authority of the court
to order a joint managing conservator to pay child support to another joint
managing conservator. Id. § 153.138.
  
     We agree with Appellee that both parents must shoulder
the task of providing support for their children. See Bailey, 987
S.W.3d at 208; R.W. v. Tex. Dep't of Protective & Reg. Servs., 944
S.W.2d 437, 440 n. 4 (Tex. App.--Houston [14th Dist.] 1997, no writ).
The parents' responsibility to the child remains joint even though they divorce.
Bailey, 987 S.W.3d at 208.
  
     In making a determination of whether applying the
family code guidelines would be unjust or inappropriate under the circumstances,
the trial court shall consider evidence of all relevant factors. Tex. Fam. Code
Ann. § 154.123(b). When making such a determination, the trial court must
consider factors such as the ability of the parents to contribute to the support
of the child; the amount of time of possession of and access to a child; whether
the obligor or obligee has an automobile, housing, or other benefits furnished
by another person; the earning potential of the obligee if the actual income of
the obligee is significantly less than what the obligee could earn because the
obligee is intentionally unemployed or underemployed; provision for health care
insurance and payment of uninsured medical expenses; and any other reason
consistent with the best interest of the child, taking into consideration the
circumstances of the parents. Id. These factors, however, are not
exclusive, and a trial court may consider any other factor it deems relevant in
determining the amount of child support. Sanchez v. Sanchez, 915 S.W.2d
99, 102 (Tex. App.--San Antonio 1996, no writ). We cannot substitute our
judgment for that of the trial court, even though we may have ruled otherwise. Brito
v. Brito, 346 S.W.2d 133, 134 (Tex. Civ. App.--El Paso 1961, writ ref'd
n.r.e.).
  
     Appellee argues that Appellant is voluntarily
unemployed. The duty to support is not limited to a parent's ability to pay from
current earnings, but extends to his or her financial ability to pay from any
and all sources that might be available. P.J.H., 25 S.W.3d at 406; Pharo
v. Trice, 711 S.W.2d 282, 284 (Tex. App.--Dallas 1986, no writ). Thus, a
court may take a parent's earning potential into account when
determining the amount of child support the parent must pay. Tex. Fam. Code Ann.
§ 154.066; Pharo, 711 S.W.2d at 284. A parent who is qualified to
obtain gainful employment cannot evade his or her support obligation by
voluntarily remaining unemployed. Eggemeyer v. Eggemeyer, 535 S.W.2d
425, 427-28 (Tex. Civ. App.--Austin 1976), aff'd, 554 S.W.2d 137 (Tex.
1977); see Pharo, 711 S.W.2d at 284 (mother was ordered to pay child
support even though she was not employed; she had worked as an airline
stewardess; currently she was spending her time researching genealogy, playing
tennis, helping friends put together a cookbook, and volunteering for the Dallas
County Medical Auxiliary). However, for a 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. P.J.H., 25 S.W.3d at 405-06; see DuBois, 956
S.W.2d at 610. The requisite intent or lack thereof, however, may be inferred
from such circumstances as the parent's education, economic adversities and
business reversals, business background, and earning potential. P.J.H.,
25 S.W.3d at 406.
  
     As mentioned above, the trial court has the discretion
to consider Appellant's earning potential in determining how much child support
she was to pay. See Tex. Fam. Code Ann. § 154.066. In addition, when
we consider the P.J.H. requisites to applying 154.066, the record does
not contain any evidence that Appellant was voluntarily unemployed in order to
avoid child support payments. Appellant is a high school dropout who earned a
GED, and can only expect to earn minimum wage. She testified that she does not
work because, based on her paramour's income, she "[does not] have
to," and that she would rather stay home and take care of the children. The
evidence showed that part of the reason for her unemployment was that she took
care of her elderly and sickly paren    ts who lived next door.
  
     We point out that the trial court did not allow
Appellant to get away with not providing any support to the children.
The trial court ordered Appellant to provide support to the children when they
are in her care on the weekends and to pay one-half of the children's uninsured
medical expenses. In light of Appellant's minimum wage earning potential and her
reasons for not working, we hold that the trial court did not abuse its
discretion in not ordering Appellant to make monthly child support payments. We
overrule Appellee's first cross-issue.
Attorney's
Fees
  
     In his second cross-issue, Appellee contends that, as
the prevailing party, the trial court erred in not awarding him attorney's fees.
Under section 106.002 of the family code, "the court may order
reasonable attorney's fees as costs and order the fees to be paid directly to an
attorney." Tex. Fam. Code Ann. § 106.002(a) (emphasis added). The language
of this statute is permissive throughout its terms. It authorizes an award of
attorney's fees and it permits the taxing of the award as costs, but it neither
requires that the trial court award attorney's fees nor that they be taxed as
costs. See Drexel v. McCutcheon, 604 S.W.2d 430, 433 (Tex. Civ.
App.--Waco 1980, no writ). We overrule Appellee's second cross-issue.
       
Having overruled all of Appellant's issues and Appellee's cross-issues, we
affirm the trial court's judgment.
 
                                                           
DIXON W. HOLMAN
                                                           
JUSTICE
 
PANEL A: CAYCE, C.J.; HOLMAN and GARDNER,
JJ.
DELIVERED: June 5, 2003

1. At the time Appellee brought the modification suit
these were the children's ages.
2. Appellant phrases her points as challenging the legal
and factual sufficiency of the evidence. However, legal and factual sufficiency
are not independent grounds for review in modification cases, but are only
relevant factors in assessing whether the lower court abused its discretion. See
McCain v. McCain, 980 S.W.2d 800, 801 n. 1 (Tex. App.--Fort Worth 1998, no
pet.); D.R. v. J.A.R., 894 S.W.2d 91, 95 (Tex. App.--Fort Worth 1995,
writ denied) (op. on reh'g).
3. Appellee phrases his point as also challenging the
legal and factual sufficiency of the evidence. However, legal and factual
sufficiency are not independent grounds for review, but are only a relevant
factor in assessing whether the lower court abused its discretion. See
McCain, 980 S.W.2d at 801 n. 1; D.R., 894 S.W.2d at 95.
