Where a change of circumstances is anticipated by the parties prior to entry of an order, such change does not rise to a “material and substantial change of circumstances to support modification”. The First District Court of Appeals confirmed this in their recent holding in Smith v. Karanja. Smith v. Karanja, 2018 WL 761905 (Tex. App. – Houston [1st Dist.] 2018, no pet.). “If a circumstance was sufficiently contemplated at the time of an original agreement, its eventuality is not a changed circumstance, but instead an anticipated circumstance that cannot be evidence of a material or substantial change of circumstances.” Id. The Houston Court relied on the Warren case out of Austin in support. Id.
In Warren, the mother’s move was anticipated at the time of the original agreement because her and then-boyfriend, now husband, was military at the time of the agreement. Warren v. Ulatoski, 2016 WL 426999 at *5 (Tex. App.-Austin 2016, no pet.) Therefore, the event of the move actually occurring could not be a changed circumstance, but only an anticipated circumstance addressed by the original agreement. Id. The Houston Court pointed to the fact that since mother’s husband was active-duty military and thus subject to relocation, the actual occurrence of relocation was contemplated by the parties at the time of the prior order.
In 2006, the Austin Court of Appeals determined that changes anticipated in the original divorce decree do not thereafter rise to the level of material and substantial changes. Zieifman v. Michels, 212 S.W.3d 582 (Tex. App. – Austin 2006). At the time of the divorce, the parties entered into a negotiated agreement that their children would attend certain schools. Id. They further agreed that if they were unable to agree on educational decisions, they would follow the recommendations of the teacher of the child at issue. Id. Thus, the agreement contemplated that the child would age, specified the schools agreed upon and even the alternatives, and provided a mechanism for dispute resolution should a disagreement arise. Id. Mother sought modification of the school restrictions to allow the child to attend a private school that was not part of the original agreement, but Father objected. Id. The Austin Court noted that the policy behind the requirement of a material and substantial change is encourage stability in conservatorship and prevent constant relitigation with respect to children, based on the doctrine of res judicata as to the child’s best interest at the time of the prior order. Id. at 595, citing In re M.N.G., 113 S.W.3d 27, 33 (Tex.App.-Fort Worth 2003, no pet.); Watts v. Watts, 563 S.W.2d 314, 316 (Tex.Civ.App.-Dallas 1978, writ ref’d n.r.e.). Thus, the party seeking modification bears the burden of demonstrating a material and substantial change in circumstances since the original decree. Id., citing Bates, 81 S.W.3d at 423. The requirement of this showing “serves a valid purpose of significantly limiting the trial judge’s discretion and prevents the modification statute from being unconstitutionally broad.” Id., citing M.N.G., 113 S.W.3d at 34. Therefore, the Austin Court held that the parties agreed as to the schools the child would attend, anticipated that they might disagree about educational decisions in the future, and provided a mechanism for resolving such disagreements. Id. “At the time of their divorce, the parties chose to send their children to public schools unless they agreed otherwise. They also correctly anticipated that they might disagree about educational decisions concerning the children in the future and included an agreed mechanism in the decree for resolving any such disagreements.” Id. at 596. Therefore, the changes Mother sought were anticipated at the time of divorce, negotiated, and addressed. Such anticipated changes could not rise to the level of a material and substantial change sufficient to warrant modification of the prior order. Id.