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.

 

Print:
EmailTweetLikeLinkedIn
Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.