Brejon v. Johnson-Brejon (pdf) (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Massengale)
(motion to modify child support, material and substantial change in circumstances, attorney's fees order
AFFIRM TC JUDGMENT: Opinion by Justice Massengale
Before Chief Justice Radack, Justices Bland and Massengale
01-08-00642-CV Phillipe J. Brejon v. Lia M. Johnson-Brejon
Appeal from 310th District Court of Harris County
Trial Court Judge: The Honorable Lisa Millard
O P I N I O N
In two appeals, appellant Phillipe J. Brejon appeals the trial court’s orders modifying his child-support
obligation (No. 01‑08‑00642‑CV) and awarding attorney’s fees to appellee Lia Johnson (No.
01‑08‑00897‑CV). With respect to the modification of child support, Brejon argues that the trial court
abused its discretion by increasing his financial obligation because neither legally nor factually sufficient
evidence supports a finding of a material or substantial change in the parties’ circumstances. As to the
attorney’s-fees order, Brejon contends that the trial court lacked jurisdiction to enter that order because
its plenary power had expired.
We conclude that the evidence was legally and factually sufficient to support the trial court’s order
increasing Brejon’s child-support obligations, and we thus affirm the order of the trial court in cause
number 01-08-00642-CV. We further conclude that the trial court had authority under Family Code
section 157.001(a) to enforce its prior order granting attorney’s fees, but the court lacked authority to
grant additional attorney’s fees pursuant to Johnson’s untimely request for temporary orders pending
appeal under Family Code section 109.001(a). We thus modify the order of the trial court in cause
number 01-08-00897-CV and, as modified, affirm.
Brejon and Johnson divorced on April 3, 2007. They have one child, R.B., and they share custody in
accordance with an Agreed Final Decree of Divorce. In January 2008, Johnson filed a petition to modify
the parent-child relationship, and she amended her petition in April 2008. Johnson sought an increase in
child-support payments from $1,200 per month to $1,500 per month, in accordance with statutory
guidelines. Johnson argued that the circumstances of a party to the original order had materially and
substantially changed and that the child-support payments previously ordered did not substantially
comply with the guidelines in the Texas Family Code, which the Texas legislature had recently changed.
See Act of May 22, 2007, 80th Leg., R.S., ch. 620 §§ 2–9, 2007 Tex. Gen. Laws 1188, 1188–90 (now
Tex. Fam. Code Ann. § 154.125(a) (Vernon 2008)).
At trial, Johnson testified that Brejon did not consistently exercise his periods of possession of R.B.
Johnson also testified that she had been promoted at work and that her promotion included increased
responsibilities and longer working hours. Johnson said that these two circumstances required her to
hire babysitters or pay to fly her mother to Houston to care for R.B. while Johnson worked. Johnson also
testified to the high price of gas, generally increased costs of living, and medical expenses she had
incurred. Finally, she testified that she knew that Brejon’s child-support obligation was less than that
required by the Family Code child-support guidelines.
Brejon contended that child-care expenses were Johnson’s responsibility regardless of whether they
arose during his periods of possession because “she wanted to have custody.” He testified that he had
no regular babysitters who cared for R.B. during his periods of possession. He testified that increases in
the cost of living affected him as well. However, he noted that his annual salary remained at
approximately $160,000. He argued that Johnson had not proved a change in circumstances, because
he had been inconsistent in exercising his right to possession of R.B. even before the divorce decree
was finalized. Brejon contended that a change in the Family Code guidelines alone was insufficient to
warrant a modification of child support.
After a bench trial, the trial court granted Johnson’s petition to modify and increased Brejon’s monthly
child-support obligation to $1,500. On July 15, 2008, the trial court signed its order to that effect. The
order also required Brejon to pay Johnson’s attorney’s fees in the amount of $7,830 plus post-judgment
interest. The order further stated that all relief requested in the case and not expressly granted was
denied. A week later, on July 21, Brejon filed his notice of appeal. The trial court later filed findings of
fact and conclusions of law, in which the court concluded that there had been “a material and substantial
change since the rendition of the Court’s last order.” The trial court found “that evidence existed of late
paid educational and medical sums, of changes in Lia Johnson’s job duties and requirements, of unused
visitation by Philippe Brejon that required Lia Johnson to spend extra, unforeseen sums on babysitters
and of the increased cost of living.”
On October 13, 2008, the trial court entered another order requiring Brejon to pay the previously
ordered attorney’s fees plus interest. The October 13 order also awarded Johnson additional attorney’s
fees incurred to enforce the July 15 order and to defend Brejon’s appeal. Brejon filed a second notice of
appeal, challenging the trial court’s authority to enter the October 13 order.
Motion to Modify Child Support
Standard of Review
In general, a trial court’s ruling on child support will not be reversed on appeal unless there is a clear
abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); McLane v. McLane, 263 S.
W.3d 358, 362 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). The test is whether the trial court
acted arbitrarily, unreasonably, or without reference to guiding rules or principles. McLane, 263 S.W.3d
at 362. The reviewing court must review the evidence in the light most favorable to the trial court’s
actions and indulge every legal presumption in favor of the order. Id. There is no abuse of discretion if
some probative and substantive evidence supports the order. Id.
Brejon contends that the evidence is both legally and factually insufficient to show a material and
substantial change in circumstances. However, under an abuse of discretion standard, legal and factual
insufficiency are not independent, reversible grounds of error; rather, they are relevant factors in
assessing whether the trial court abused its discretion. Patterson v. Brist, 236 S.W.3d 238, 240 (Tex.
App.—Houston [1st Dist.] 2006, pet. dism’d).
In an appeal of a judgment rendered after a bench trial, the trial court’s findings of fact have the same
weight as a jury’s verdict. In re K.R.P., 80 S.W.3d 669, 673 (Tex. App.—Houston [1st Dist.] 2002, pet.
denied). When challenged, however, a trial court’s findings of fact are not determinative unless they are
supported by the record. Id. We review the sufficiency of the evidence supporting the challenged
findings to determine whether the trial court abused its discretion in making such findings. Id.
Our review of a legal sufficiency issue requires us to consider only the evidence and inferences that tend
to support the finding, disregarding all evidence and inferences to the contrary. Vannerson v.
Vannerson, 857 S.W.2d 659, 666 (Tex. App.—Houston [1st Dist.] 1993, writ denied). If there is any
evidence of probative force to support the finding, i.e., more than a mere scintilla, we will overrule the
issue. Id. In reviewing a factual sufficiency issue we must consider, weigh, and examine all of the
evidence that supports and contradicts the finding. Id. We will set aside the finding only if the evidence
standing alone is too weak to support it or if it is so against the overwhelming weight of the evidence that
it is manifestly unjust and clearly wrong. Id.
Statutory Grounds for Modification
The Family Code provides that a court may modify a child-support order if: (1) the movant shows that
the circumstances of the child or a person affected by the order have materially and substantially
changed or (2) it has been three years since the order was rendered or last modified and the monthly
child support obligation differs from the amount that would be awarded under the statutory child-support
guidelines by 20 percent or $100. Tex. Fam. Code Ann. § 156.401(a), (a-1) (Vernon 2008). Paramount
to the trial court’s determination of child support is the best interest of the child. McLane, 263 S.W.3d at
362 (citing Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002)). “In determining whether a modification in child-
support payments is appropriate, the trial court should examine the circumstances of the child and
parents at the time the prior decree was rendered, in relation to the circumstances existing at the time
modification of the prior order is sought.” Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston
[1st Dist.] 1993, writ denied).
Family Code section 156.402(a) states that the trial court “may consider the child support guidelines . .
. to determine whether there has been a material or substantial change of circumstances . . . that
warrants a modification of an existing child support order . . . .” Tex. Fam. Code Ann. § 156.402(a)
(Vernon 2008). In addition, “if the amount of support contained in the order does not substantially
conform with the guidelines . . . the court may modify the order to substantially conform with the
guidelines . . . .” Id. § 156.402(b). A court may also consider other relevant evidence in ruling on a
motion to modify child support. Id. Thus, a court’s consideration of the child-support guidelines in a
modification proceeding is discretionary, not mandatory. See, e.g., Friermood v. Friermood, 25 S.W.3d
758, 760 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Accordingly, a child-support order that does
not comply with statutory guidelines does not in and of itself establish a material and substantial change
in circumstances requiring modification. See id.
Material and Substantial Change
Because three years have not yet passed since the original order was rendered, Johnson had the
burden to prove a material and substantial change in the circumstances of the child or a person affected
by the order. Tex. Fam. Code Ann. § 156.401(a)(1) (Vernon 2008). Brejon argues that she did not do
Johnson argues that a change in the Family Code was itself a material and substantial change in
circumstances sufficient to warrant a modification of the child-support order. Specifically, the legislature
increased the amount of net resources to be considered in calculating a parent’s child-support
obligation. In her brief, Johnson explains that earlier amendments to the Family Code included enabling
language that specified that the change in the law was not a change of circumstance sufficient to warrant
a child-support modification. See Act of June 1, 2003, 78th Leg., R.S., ch. 1262, § 5(c), 2003 Tex. Gen.
Laws 3572, 3573 (“The enactment of the amendments made by this Act does not affect the validity or
obligations, terms, and conditions of an order in a suit affecting the parent-child relationship made before
the effective date of this Act, and this Act does not constitute a change of circumstances under Section
14.08, Family Code.”); Act of May 29, 1993, 73rd Leg., R.S., ch. 766, § 11(e), 1993 Tex. Gen. Laws
2989, 2999 (“The change in law made by this Act does not by itself constitute a material and substantial
change of circumstances under Section 156.401, Family Code, sufficient to warrant modification of a
court order or a portion of a decree that provides for the support of a child rendered before the effective
date of this Act.”). However, the most recent amendment, which increased the amount of the child-
support obligor’s resources that are subject to the guidelines, did not include enabling language stating
that the statutory change was not a change of circumstances for the purpose of child-support
modification. See Act of May 22, 2007, 80th Leg., R.S., ch. 620 § 2, 2007 Tex. Gen. Laws 1188, 1189.
We decline Johnson’s invitation to consider this argument, however, because we conclude that she
presented other evidence that supports the trial court’s finding of a material and substantial change.
The trial court found a material and substantial change in circumstances in “late paid educational and
medical sums, changes in Lia Johnson’s job duties and requirements, of unused visitation by Philippe
Brejon that required Lia Johnson to spend extra, unforeseen sums on babysitters and of the increased
cost of living.” Johnson testified that an increase in child support was in R.B.’s best interest. She
testified, “I’ve had substantial increase in costs since our settlement due to issues of [Brejon’s]
noncompliance with our decree, as well as inconsistent exercising of the visitation which have really
caused a lot of unexpected child care expenses.” Johnson said that she had two primary issues with
inconsistent child care. In addition to Brejon’s inconsistent exercise of visitation, she stated, “I’ve had a
significant increase in the responsibilities through my job, which means I have to have predictability.”
Johnson also testified that additional child-support money could “help create a more predictable and
consistent child care situation for our son.” Johnson introduced a log that showed when Brejon had
missed, canceled, or arrived late for weekday visitation from before their divorce was final and continuing
through the week before trial. Johnson also testified to increased living expenses, generally, saying, “I’m
paying more for things than I was last year, absolutely,” and “I know that a gallon of gas costs me about
$5.00 right now.” Johnson also testified that her promotion, which increased her job responsibilities,
came with a raise of approximately $10,000, to approximately $74,000 per year.
Brejon testified that he earned an annual salary of $160,000. He testified that increased living costs
were affecting him as well, and that R.B.’s health insurance premiums had increased $60 per month.
Nevertheless, Brejon said that he believed Johnson should bear the cost of unexpected child care due to
his inconsistent exercise of visitation because “she wanted to have custody.” Brejon did not dispute
Johnson’s testimony about her increased job responsibilities, increased need for child care, his
inconsistent exercise of visitation, or the increased cost of living.
We conclude that the evidence was both legally and factually sufficient to support the trial court’s
findings of fact that evidence existed as to “changes in Lia Johnson’s job duties and requirements, of
unused visitation by Philippe Brejon that required Lia Johnson to spend extra, unforeseen sums on
babysitters and of the increased cost of living.” Therefore, we hold that there was probative and
substantive evidence to support the trial court’s order for increased child support. See McLane, 263 S.W.
3d at 362. We overrule Brejon’s issue regarding the child-support order, appellate cause number 01-08-
Attorney’s Fees Motions
In his sole issue in appellate cause number 01-08-00897-CV, Brejon challenges the trial court’s
October 13, 2008 order that he pay certain trial and appellate attorney’s fees incurred by Johnson. In
the July 15, 2008 order modifying Brejon’s child-support obligations, the trial court ordered Brejon to pay
both an increased amount of child support and Johnson’s attorney’s fees in the amount of $7,830, plus
post-judgment interest to accrue at the statutory rate. At that time, Johnson did not request and the trial
court did not order any contingent attorney’s fees for appeal. Brejon filed his notice of appeal from the
July 15 order on July 21, 2008.
On August 8, 2008, Brejon had not yet paid the attorney’s fees, and Johnson filed a motion to enforce
the July 15 award of attorney’s fees. See Tex. Fam. Code Ann. § 157.001(a)–(d) (Vernon 2008)
(providing authority and procedure for enforcement of final order in suits affecting the parent-child
relationship). Johnson also filed a second motion on September 30, 2008—77 days after the trial court
had entered the child-support modification order. This second motion requested the entry of temporary
orders during the pendency of the appeal. See Tex. Fam. Code Ann. § 109.001 (Vernon 2008)
(providing authority and procedure for temporary orders “to preserve and protect the safety and welfare
of the child during the pendency of the appeal”). In the motion for temporary orders, which Johnson
requested to be heard at the same time as the August 8 motion to enforce, she again sought to enforce
the trial court’s prior order for payment of $7,830 plus post-judgment interest. In the written motion filed
with the trial court, Johnson invoked Family Code section 109.001(a)(5) to request $4,654 in additional
attorney’s fees which had been incurred responding to Brejon’s appeal and seeking enforcement of the
July 15 judgment.
A hearing on the two motions was held on October 13, 2008. Johnson offered evidence that the total
amount of additional incurred attorney’s fees and expenses, which she was requesting that the trial court
award to her, had increased from $4,654 to $6,691.90. After hearing evidence of the additional incurred
attorney’s fees and argument from counsel, the trial court granted the relief requested by Johnson. The
trial court ordered Brejon to pay directly to Johnson’s lawyers the sum of $7,926.53, which represented
the July 15 award of attorney’s fees plus post-judgment interest. The trial court further ordered Brejon to
pay to Johnson’s lawyers the additional requested amount of $6,691.90 in incurred attorney’s fees, to be
held in trust during the pendency of the appeal. The trial court did not indicate which motion was being
granted, or by what authority Brejon was being ordered to pay the additional fees.
On appeal, Brejon characterizes the October 13, 2008 order as a modification of the July 15, 2008
order. He argues the later order is void in its entirety, and we should reverse and render judgment in his
favor, because the motion for temporary orders was untimely filed and the trial court’s plenary power had
First, we consider our jurisdiction. We are authorized by statute to consider an appeal from a “final
order” rendered under Title 5 of the Family Code. Tex. Fam. Code Ann. § 109.002(b) (Vernon 2008).
Johnson initiated an enforcement proceeding as authorized by Family Code chapter 157, and the trial
court’s October 13, 2008 order disposed of all pending parties and claims in the record with respect to
that proceeding. Johnson also filed a motion for temporary orders pursuant to Family Code section
109.001(a), and part of the relief granted by the trial court was premised solely upon that motion. We
lack jurisdiction to consider an interlocutory appeal of a temporary order rendered under section 109.001
(a). Tex. Fam. Code Ann. § 109.001(c) (Vernon 2008); Marcus v. Smith, No. 01-09-003210-CV, 2009
WL 4854755, at *6 (Tex. App.—Houston [1st Dist.] Dec. 17, 2009, no pet. h.). However, in light of our
conclusion below that the trial court had no authority to enter a temporary order pursuant to section
109.001(a), this appeal is not within the scope of orders carved out of our jurisdictional reach by section
109.001(c). We thus conclude that the trial court’s October 13 order granting Johnson’s requests for
attorney’s fees is a final order rendered under Title 5 of the Family Code, and accordingly we have
appellate jurisdiction. Cf. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2000) (“A judgment is
final for purposes of appeal if it disposes of all pending parties and claims in the record, except as
necessary to carry out the decree.”).
Analysis of Trial Court’s Order
Brejon contends on appeal that the trial court completely lacked authority to enter its October 13 order
compelling him to pay Johnson’s attorney’s fees. Brejon characterizes the order as a modification of the
July 15 child-support modification order, and he argues that by October 13 the trial court had lost its
plenary power to enter such an order. This argument mischaracterizes the procedural history of the
October 13 order. Johnson never requested a modification of the July 15 order, nor did the October 13
order purport to do so.
Instead, over the course of two separate motions, Johnson made two discrete requests for relief. In both
the August 8 motion to enforce and the September 30 motion for temporary orders, Johnson sought
enforcement of the July 15 order’s award of attorney’s fees. The trial court had express statutory
authority to grant this relief in order to enforce its own prior order. See Tex. Fam. Code Ann. § 157.001
(a) (Vernon 2008) (“A motion for enforcement as provided in this chapter may be filed to enforce a final
order for conservatorship, child support, possession of or access to a child, or other provisions of a final
In the September 30 motion for temporary orders, Johnson made the additional request for an award of
attorney’s fees incurred in seeking to enforce the July 15 order and in responding to Brejon’s appeal.
This request was expressly premised on the statute providing for temporary orders during the pendency
of an appeal. See Tex. Fam. Code Ann. § 109.001(a)(5) (Vernon 2008) (authorizing temporary orders
which “require payment of reasonable attorney’s fees and expenses” pending appeal). However, a
motion for temporary orders pending appeal must be filed “[n]ot later than the 30th day after the date an
appeal is perfected,” id. § 109.001(a), which Johnson failed to do. The trial court thus had no authority
under Family Code section 109.001 to enter temporary orders requiring Brejon to pay additional attorney’
Accordingly, the portion of the October 13, 2008 order that refers to the motion for temporary orders and
orders Brejon to pay $6691.90 to Johnson’s attorneys is void. However, because the trial court retains
its power to enforce its prior orders, the portion of the October 13 order requiring Brejon to comply with
the trial court’s earlier order, and pay Johnson’s trial attorney’s fees as ordered therein, is valid.
Therefore, we sustain Brejon’s issue in part and reform the October 13, 2008 order to eliminate any
reference to temporary orders or attorney’s fees other than those previously awarded in the July 15,
2009 child-support modification order.
We affirm the order of the trial court in cause number 01-08-00642-CV. We modify the order of the
trial court in cause number 01-08-00897-CV, and we affirm as modified. All pending motions are denied
Panel consists of Chief Justice Radack and Justices Bland and Massengale.