This case outlines a defense that is often available to parties defending a Motion to Modify.
The San Antonio Court of Appeal in In re A.B.R., No. 04-17-00220-CV, 2018 WL 3998684 (Tex. App.—San Antonio 2018, no pet. h.) (mem. op.) (08-22-18) addressed the following case. The Mother and Father signed an MSA in their divorce proceedings. At the time they signed the MSA, they still lived together, but the MSA contemplated that the parties would divorce and that Father would move to Puerto Rico. The parties dismissed their divorce proceeding but refiled soon after, and a divorce decree was signed incorporating the MSA. After Father moved, he alleged Mother began to make his periods of visitation difficult and signed up the Children for so many activities that they were busy seven days a week. Just over a year after the MSA was signed, Father sought to modify the parent-child relationship. After a week-long trial with several witnesses and numerous exhibits, the trial court entered a 52-page order modifying many of the terms previously agreed to in the MSA.
The Appeal Court found that the alleged “changes” to support a material and substantial change were all either contemplated— such as Father’s move to Puerto Rico—or insufficient to constitute a “material and substantial” change—such as the Children’s failing communications with their therapist. Mother sought the cash bond because Father was allegedly very litigious and often threatened to sue people. However, Mother presented no evidence, and the trial court made no finding, that it was reasonably likely that Father would file a subsequent petition to modify. Finally, in light of the appellate court’s decision to reverse and render judgment denying any modifications, the court remanded the case for reconsideration of attorney’s fees. There was a a dissent which found that there was “some evidence of a substantive and probative character” to support the finding.