Mother Successfully Modifies Child Support and Receives Attorneys’ Fees

Archive, Blog, Brad M. LaMorgese

On January 7, 2016, the court of appeals in Dallas in In re Moore held Mother had shown a material and substantial change in circumstance of parties to allow for a modification in child support, retroactive child support, and an award of conditional attorney’s fees for the Husbands appeal. Mother filed for a modification a year after the parties signed a settlement agreement. The settlement agreement stated that the father did not have to pay any child support. Mother provided evidence to support her income has decreased, father’s income has increased, and mother was forced to use savings to cover the child’s expenses. Father argued that there was no material or substantial change to the parties or the child that would allow a court to modify a prior order. Father’s position was that Mother was aware at the time of the settlement agreement that her income may decrease due to a decrease in her yearly bonuses. The trial court ruled in favor of the mother and ordered father to pay $1500 in child support and retroactive child support for the prior 5 months.

On appeal, Father argued that a modification cannot be based on circumstances that were known to the parties at the time of the prior order. The court of appeals held that Mother did not anticipate a steady decrease in income rather she anticipated fluctuations in her income. Further, the court of appeals held that Father had to pay retroactive child support. The modification suit started 13 months prior and the court noted that father contributed minimally to the support of the children thus the award of retroactive child support was supported by the evidence.

Father filed a notice of appeal of the modification order and mother moved and the court ordered a conditional appellate attorney’s fees if father lost on appeal. Father filed a mandamus on the fees issue, however the court held that a conditional award for appellate attorney’s fees are appealable and denied Father’s writ of mandamus, which it had consolidated with the appeal. The court of appeals held that Mother’s attorney properly testified about his experience and familiarity with family law and appeals, the work to be done, his reasonable rates, as well as an anticipated attorney’s fee exhibit. Further, opposing counsel did not object to any of the evidence. Therefore, the award of $52,500 in attorney’s fees to mother’s lawyer was appropriate.