Opinions, October 15, 2015

The First District Court of Appeals has released two memorandum opinions this morning, Plowman v. Ugalde, No. 01-14-00851-CV, a child support case, and In re M.A.B., IV, a parental rights termination case.

Philip Ugalde and Kori Plowman divorced in September 2012. Their decree specifically references and incorporates an Agreement Incident to Divorce (“AID”). Under the AID, Philip agreed to pay child support of $3,000/mo. The parents were both named managing conservators with Kori as primary and Philip being granted an expanded SPO.

At the time of the divorce, Philip was making $170,000 per annum. Eight months later, he left his job and was unemployed five months before obtaining employment at $75,000/yr which he held for seven months. Then he was unemployed for two months and then, in March 2014, he became employed at $125,000/yr. Somewhere in there, he filed a petition to modify his child support obligation. At the modification hearing, he testified that he had cashed in approximately $150,000.00 in retirement accounts to sustain himself in his periods of unemployment and meet his child support obligations.

At the hearing, Kori argued that Philip had failed to establish a material and substantial change in circumstances. The trial court found that Philip had established a material and substantial change and granted his motion to modify and ordered Philip to pay guideline support of $1,510/mo.

Kori appealed, asserting three issues: 1) the trial court abused its discretion by modifying the child support order without evidence of a material and substantial change; 2) the trial court abused its discretion when it failed to award her a money judgment for damages in the amount of the difference between what the father had agreed to pay and the amount the trial court was ordering him to pay subject to contempt (i.e., contract damages); and 3) the trial court’s refusal to award her contract damages based on the AID violated the open courts provision of the constitution.

On the first issue, the Court of Appeals noted that while not all temporary slumps in employment constitute a material and substantial change, Philip supplied legally and factually sufficient evidence to warrant the modification of the child support order.

On the second issue, Philip argued that Kori did not seek breach of contract damages in her live pleading and she had not appealed the trial court’s decision denying her trial amendment in which she sought to add a claim for breach of contract damages. The trial court had held that Kori’s pleading did not support the relief she was requesting. The Court of Appeals agreed that Kori did not appeal the denial of the trial amendment and could not prevail on an unpled claim for breach of contract damages.

With the second issue overruled, the Court of Appeals did not reach the third issue and the trial court was affirmed.

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