In this week’s episode, Brian and Jake discuss options after a court order is finalized and how Texas Courts decide when a modification can be made, especially when it comes to child custody and support.
Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys, who have been board-certified in family law by the Texas Board of Legal Specialization.
Brian Walters: Welcome back to For Better or Worse or Divorce. I’m Brian Walters. I’m here with Jake Gilbreath. On today’s episode, we’re going to be talking about your options after a divorce is finalized. So, first of all, I think the most important thing is let’s say you’re divorced, you’ve got two kids, you’ve divided up your property. Somebody’s been awarded spousal maintenance/alimony.
Brian Walters: Jake, what are the kind of things that can be modified versus what are the type of things that are done for good and we can’t ever go back and redo?
Jake Gilbreath: Yeah. Property’s for good. After it loses plenary power, the court can’t come back and modify the property division, even on an enforcement. The code in the case law is really clear that the court can clarify a property division, but they can’t change the underlying division. So that’s going to be set in stone. Spousal maintenance: there’s a procedure and there’s a way to change that under Chapter A of the Family Code. That’s a different topic, but that’s not absolutely set in stone, although I don’t think I’ve ever seen a court modify spousal maintenance, particularly because it’s so limited in Texas, as is for child orders.
Jake Gilbreath: So when you’re talking about conservatorship, possession and access, and support, all that’s governed, for modifications, that’s governed by Chapter 156 of the Family Code. And essentially what it is you can modify a child custody order but you have to show that there’s been a material and substantial change in circumstance. There’s some other grounds for older kids if a child’s over the age of 12 and is going to tell a judge he or she wants to change who the child lives with primarily or somebody voluntarily relinquish as a child. In other words, you place the child with your primary, you place the other child with the other parent for six months or more, or I guess in theory, with a grandparent or a next door neighbor, that could be grounds for modification.
Jake Gilbreath: But really 90, 95% of the time when we’re talking about modifications for kids’ stuff, it’s about a material substantial change in circumstance. I can’t just come in and say, “This sucks and it doesn’t work and I don’t like it.” You have to show that something’s changed, and that’s the initial burden before you even start talking about what’s in the best interest of the child. So kicking it back to you Brian. What do you see? Somebody comes in and they’re looking to change a court order on kids’ stuff. What type of stuff are you looking at to see if you think that you can prove in court a material substantial change in circumstance?
Brian Walters: Right. There’s a spectrum. So the easy ones are: Well my ex-wife just got arrested for driving drunk with the kids in the car or she just moved a sex offender in the house with my 12 year old daughter. She just got arrested for beating the kids or something like that. Something really dramatic like that. And those situations are pretty straightforward. That does get into what a temporary orders modification, which has got a different legal standard, which we’ll talk about in a little bit because we’re talking now about a permanent, I should say, a final change, which is never permanent until the child turns 18 about custody. Those are the easy ones. The ones on the other extreme, which are not going to qualify are things like: we don’t get along, she won’t tell me every detail of my kids’ upbringing at the house, she won’t let me talk to the kids every time I call them, or variations on that that are more annoying, bad co-parenting things but not the kind of things that’s going to get a court to say, well we need to switch the kids over to another home.
Brian Walters: So most of the ones we deal with that are in litigation that take a while to get figured out and that are contestable are somewhere in the middle, where there’s been some bad behavior by the other parent or some particular situation that’s arisen that’s serious but isn’t obvious one way or the other. That’s where we find ourselves doing most of the work in these cases. Is that your experience as well?
Jake Gilbreath: Yeah, I think so. It’s like you said. It’s a spectrum, and everything sort of goes into that spectrum. Like I said, it’s obvious on the flip side of coming in, one of our associates and I recently did a case, for example, where we mediated… Let me try to get the dates right. We mediated November of 2021, and in January of 2021, the father filed a modification, ironically with the same lawyers that he mediated with and came in and said, “I hate this deal that I did.”
Jake Gilbreath: And you could read between the lines. He legally alleged material substantial change in circumstance, but between the lines you could see it’s just, I hated the deal that I did in mediation. And we actually beat that on summary judgment, which is really rare in family law to be able to essentially get a court to say you don’t even get to proceed with the lawsuit. There’s no evidence to support a material substantial change. But it’s a spectrum. It’s lots of things go into it. I think time goes into it also. So that’s an example. We got to go to court and go, “Judge, give me a break. It’s been two months. He just agreed to this.” And the case law is really clear that the public policy of the state of Texas is to ensure stability and that re-litigation, and litigation in general, is not good for kids.
Jake Gilbreath: Now, having said that, of course things come up, things change, and the longer it’s been since your prior order, there’s a big difference between trying to modify a court order that just got put in place six months ago than two years or three years or something’s come up or the child’s had to change schools or there’s been some mental health issues that have come up or what have you. But time really matters on that. But then it goes down to that material substantial change in circumstance that has to be met first. I paused there because I was trying to… Before I cite the case, trying to make sure I had it right.
Jake Gilbreath: The Zeifman case of the Third Court of Appeals in Austin is sort of a perfect example of appellate courts coming and saying that you’ve got to meet that burden first. If you read the Zeifman opinion, essentially what happens was Travis County case went up on appeal probably 12 years ago. They had this big fight about the kid’s school and what’s going to happen? And they had educational consultants come in and because I think the father wanted to pick the kids’ school under the prior order, mom had the right to make the decision. And the trial judge when ruling kind of said, “Well, I don’t know if anything’s changed, but this school’s clearly best for the child, so I’m going to switch the kid’s school.” And the Third Court said that doesn’t get you there. You can’t just sit there and say, “I think this is what’s best for the kid.” You have to show that there’s been a material substantial change in circumstance. And Zeifman is important particularly for practitioners to come in when you’re defending a modification and point out something else that’s really important about Zeifman.
Jake Gilbreath: And I think the other case law out there is you really can’t say that something’s been a material and substantial change if it’s anticipated in the divorce decree. So if you have a divorce decree that says, “Dad can move anywhere in the state of Texas.” Let’s say it’s a Houston divorce and says, “Dad, it’s right to determine the primary residence and the geographic restriction is the state of Texas.” And three years go by and dad gives notice and says, “I’m going to move to Dallas.” And then mom comes in and says, “Well there’s material substantial change, the kid was living in Houston, now the kid’s going to be living in Dallas, so modify the court order.” Zeifman, and I think all the other cases, say that’s not a material substantial change in circumstance because it’s anticipated by the divorce decree. Now, if you litigate these right, and it’s been years… I will say it’s hard to not find some material substantial change in circumstance.
Jake Gilbreath: I mean the case law talks about remarriage can be a material substantial change, schools being switched could be a material substantial change, mental health issues coming up, job changes, all that sort of stuff could be a material substantial change. And it really ultimately is up to the trial court or the jury, if you’re trying a modification of the jury, up to the jury or the trial court about whether or not you met the burden before we even started talking about best interest. And we’re talking about custody and stuff, but of course child support. I guess let’s touch on that briefly then. I want to talk about actually trying these things, but Brian, talk to child support. How’s that work as far as modifying child support?
Brian Walters: Yeah, a little bit different rules. In some sense same in a sense that you either side can go back in to try to modify child support if there’s been a material and substantial change. But that’s defined very specifically as a 10% change or $200 a month change in the amount of the child support obligation or after three years it passed. Basically, you can redo it at any point.
Brian Walters: So in a period like we’re in right now with high inflation, for example, where you might see 10% wage inflation in a year, we may see quite a few more of those that come through. And I will say though, that I’ve seen as more than one time that if you careful what you ask for, if you go in and say, “Well I want the other parent to pay more child support now because there’s been a material and substantial change in circumstances,” and that would probably relate to the finances, you may well get a counter suit for while we’re at it, while we’re going to court, I think there has been a material and substantial changing, and I want custody and I want you to pay me child support rather than you raising my child support. So I wouldn’t file one of those just randomly. I think about that carefully. That can have unintended consequences, unfortunately.
Jake Gilbreath: Yeah. Anytime there’s a trip to the courthouse, or a lawsuit being filed, it’s kind of the jerk thing to do is: you want to change child’s support, I want to do custody. I also do think fortunately our judges see through that. If I don’t have any issues at all, but then you sue me to increase my child support and all of a sudden I want custody of my child. I think our judges are pretty good at seeing that, but it’s also something that needs to be taken into consideration. It used to be a problem, until really recently, there was case law that said if I, the petitioner, allege that there’s been a material substantial change in circumstance, then I’ve judicially admitted that there’s been a material and substantial change in circumstance.
Jake Gilbreath: So in other words, I’ve relieving the other side of the burden, which really didn’t make sense. If I come in and sue for my modification of child support, that means that you get to sue for conservatorship without even having to meet that initial burden. And they changed the Family Code recently to take care of that problem where it’s not necessarily a judicial admission if I file a modification. It may not necessarily a judicial admission on a different topic. But like you said Brian, it opens the door for additional fighting on that.
Jake Gilbreath: So both ways trying these cases, Brian, if you’re trying these, if looking for the modification, or starting with that, what’s your trial look like? Are you taking into consideration a jury? Can a jury decide it? And then I’ll talk about defending them.
Brian Walters: Yeah. The first question is really do we try to go make it immediate or on temporary orders change in custody? I think that’s the first question. There is a heightened standard for that. It’s more difficult to do to make a temporary, an immediate flip in custody, which you can understand why. Because again, the state of Texas policy to try to minimize litigation and not yank kids back and forth. So if the court’s going to switch from say mom’s house to dad’s house for custody immediately, they want to be pretty sure that’s not going to flip back at the end of things. So that’s the first question. But let’s say that it’s just a normal modification. We don’t have kind of an emergency basis for it. Again, I’m going to try to think through those two hoops I got to get through, which is the material and substantial change. And like you said, you can find some case law that says nearly anything, I’m in a remarriage, for example, could be a basis for it, but it’s not automatic.
Brian Walters: I think probably 80% of divorced people, one of the two spouses is remarried within five years. It’s a very high number. You can’t believe that just the other person, “Are you getting remarried?” is the basis, how is that relevant? Does that bring step kids into the house? Does it bring a parent who’s a problem into the house? Does it bring the need to move for the new spouse’s job? Those are the kind of things you’d want to bring in.
Brian Walters: But the second part of that prong is just as important, which is it’s also got to be in the best interest of the child to make a change. And, by the way, it doesn’t have to be a custody flip, it could be a change in the possession schedule, it could be a change in child support, like we said, a change in the geographic restriction, although that’s legally kind of like a custody change depending on the circumstances.
Brian Walters: So need to think about why would this be better? Yeah, there’s a problem, let’s say, or there’s some significant change, but how does what you’re asking the court to do solve that problem or make that problem less, make the child’s life better? And it’s real important to focus on a kid. And I think it’s real easy for us humans to rationalize almost anything we do. Humans are really good at that. And we have to be careful that our clients aren’t working backwards and thinking, “I want custody of my child,” which is a natural feeling for any parent. How is what you’re asking for and what’s occurred and your trial strategy going to work to go third party a judge and convince them that it’s in the best interest of the child? Not of the parent because those are really, the judge is really not concerned about what each parent wants. They’re concerned about what’s best for the child.
Brian Walters: So there’s a lot that goes into thinking about that, preparing your client, preparing your evidence, choosing a judge or a jury, like you said. How do you go about analyzing that or thinking about that?
Jake Gilbreath: Yes, I think that’s a really good point about it. At the end of the day, it’s not because, “This doesn’t work for me, the parent, I don’t like it. It’s really inconvenient for me, the parent.” It’s about what’s best for the kid. I think judges and juries are really clear on that. Just a side note before I talk about analyzing. It is interesting to me if it gets tried to jury because a jury can decide on conservatorship who has the right to determine the primary residence and whether or not sole versus joint. They don’t decide possession access or support.
Jake Gilbreath: If you try one of these, and I’ve tried lots of these to a jury, it’s interesting on a modification when they’re charged, in other words, when they’re asked a question, it’s the pattern jury charge actually combines really two questions into one if… I don’t have it in front of me, but if that’s the top of my head, it says, “in order to do a modification, you have to prove that the petitioner has to prove there’s been a material and substantial change and that the change in the order is in the best interest of the child.” And then the jury’s asked, that’s the charge, that’s instruction. And then the jury’s asked the question, “Should the order be modified to appoint so and so as the parent who has the right to determine the primary resident.”
Jake Gilbreath: So really one question again after that instruction really, but should be two questions I think, and nobody’s ever taken that up on appeal, but it’s really two questions: One, has there been a material substantial change in circumstance; two, if yes to answer one, then two, is the requested modification in the best interest of the child? And I think that has some, this is kind of a nerd rant, but I’m just talking about this all the time and they haven’t changed yet. But if I have a denial of a modification, if a jury comes in and says, “No, don’t modify it,” that’s actually not what we call res judicata on material and substantial change because they could have denied it because of best interest. And so I don’t have a factual finding of no change in circumstance by that if I just get a no, which could lead to further litigation and as far as what evidence comes in future modifications. That’s a whole different topic. But as far as sort of analyzing these things, how do you try it?
Jake Gilbreath: It’s like you’re saying Brian, you really focus on the kid. I think both judges and juries, really particular juries, but judges too, just look at it, say, how is the child functioning and the current arrangement? Is this working out? And if it’s not, how’s it affecting the child? I’ve tried multi-day jury trials. I had one we tried years ago and just a disaster of a guardian ad litem. There was a modification trying to take custody for my client. The guardian ad litem was a disaster, really didn’t like my client. I got involved late, so it was too late to try to salvage the relationship. Guardian came in and said, “Not only should my client lose custody, but she should be supervised with the kids.” That’s how much she didn’t… And the guardian really focused, and she’s had personal problems with my client in the way she parented.
Jake Gilbreath: And that jury trial I think is always important for two lessons: One, I use it as an example, and this is a different topic, that juries are really skeptical of mental health professionals. And they, I’ll say I think it was good cross examination, but regardless, they could care less what that guardian thought. Once she clearly showed that she was biased towards the dad, they just disregarded everything that she said. But two, when we talked to them, because the end of the story’s we won, but when we talked to them, we don’t understand why we’re here. This child’s doing well in school, has friends, well adjusted, this, this, and that. And yeah, the guardian complains about these behaviors from the mom in co-parenting, this, this, and that. But the kids’ doing well. And we don’t really care if the parents don’t like each other.
Jake Gilbreath: And judges I think are the same. They will fix co-parenting issues, and they’re not going to like that. But at the end of the day, if you’re defending it, then it’s focused on this child’s doing well, and we don’t want to change that. And then if you’re pursuing it, and you’re pursuing the modification, then you’re really focusing on how this isn’t working. Unworkable is not the grounds for modification, but really that’s what judges are looking at. It’s like, why doesn’t this work? Why is this court order not working, and why is it going to be better if we change it up? Taking into consideration all the factors, the fact that we like to keep kids stable and everything like that, is a change going to improve this child’s life? Parents’ lives don’t, like you said Brian, don’t really care about, but is this going to improve the child’s life?
Jake Gilbreath: And then yeah, like you said, as far as the decision about judge versus jury, I think it depends on if you know who your judge is, if you’ve had something bad happen on temporary orders, if we lost custody. But you’re saying Brian, it’s this heightened burden to flip custody on temporary orders, but if that happens and you’ve got the client that’s lost custody on temporary orders, you’re probably looking to go to a jury. Because if some judge thought that it’s so needs to be a change that we’re going to flip it on temporary, you’re probably not going to want to be talking to that judge at final trial and rather than be talking to a jury. That’s one of the very many reasons why you may be looking for a jury to do it. And then of course there’s just as many reasons why you might want to go in front of a judge. It’s just all really case specific.
Brian Walters: I agree. I’ll have one more thought, and then we’ll wrap up. This is probably could be two podcasts, but we’ll keep it relatively short.
Brian Walters: And the last issue’s really about child support. I have a saying in the business that we’re in, “It’s never about child support, but it’s always about child support.” In other words that folks will come forward and especially a modification, and this is about my child, not about child support. And then we get in late in the day in a mediation and we are close to an agreement, but there’s the issue of child support, and that’s what makes it not settle. So I would say this: if you want to change something, if you want to modify some custody, for example, if you want to do that, and you’re willing to keep child support exactly the way it is, then I think you’re on the right track, and you should probably should be in court. If a fundamental reason why you either want to change custody or don’t want to agree to a change is based on child support, then think carefully about litigating these things because first of all, it’s going to cost you probably more in money to litigate it than you’re ever going to save or recoup in child support.
Brian Walters: And secondly, it’s exactly what you said, Jake. Juries, judges are smart, and they’ll sniff that out and they’ll figure out what the real motivation is. And then you may have the worst of both worlds if your motives aren’t pure. So again, focus on that best interest of the child, which is what parents are supposed to do, and I think most do, but don’t let that child support number get in the way of the main focus.
Jake Gilbreath: Yeah, I agree with that a hundred percent.
Brian Walters: Okay, well we’ll wrap it up for now, and so I’m sure we’ll come back to a topic like this or more detail at one of these topics soon. All right, well, that’s all we have for today. If you like what you’ve heard today, do us a favor and leave a review. We appreciate all your feedback, especially since it helps us better the podcast. I’m Brian Walters.
Jake Gilbreath: I’m Jake Gilbreath.
Brian Walters: Thank you for listening.
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