X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Eileen and Tom McGowan divorced in 1996. They were named joint managing conservators of their 3-year-old daughter. The visitation order stated that when the child turned five, Tom’s periods of possession would be extended to 8:30 p.m. on weekdays and overnight on weekends. In 2000, Eileen filed a motion to modify the order. She said that when the original order was entered, it was thought that the enticement of spending more time with his daughter would force Tom to gain control over his drinking habits, but, if anything, his habits had worsened. The trial court granted her request and ordered that Tom’s visitation would not go past 8:30 p.m. and would be supervised; that Tom could not drive a car with the child; that Tom successfully complete an out-patient alcohol program; and that Tom pay more than $11,000 in attorneys’ fees. On appeal, Tom says the evidence is insufficient to show that there’s been a change of circumstances justifying the custody modification. He also challenges the imposition of attorneys’ fees. HOLDING:Reversed and remanded. “Neither Eileen’s testimony nor any other evidence in the record provides an adequate evidentiary foundation to support a conclusion that Tom’s drinking had materially diminished his ability to care for the child since the time of the original order. Moreover, to construe [Family Code] section 156.101, requiring a material and substantial change in circumstances, as being satisfied by no change in circumstances would render the statutory requirement meaningless and defeat the Legislature’s intent in enacting it. Thus, finding no authority or rationale to support such an approach, we sustain Tom’s challenge to the modification on this ground and need not address his other challenges to it.” Tom argues, too, that as the prevailing party, he should not have to pay attorneys’ fees. The court finds no authority for this proposition, but the court does suggest that the trial court, on remand, “should have an opportunity to decide whether it wishes to leave its attorney’s fee award intact.” OPINION:Edelman, J.; Fowler, Edelman and Seymore, JJ. Seymore, J., concurred.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.