In the Interest of E.E.G. and J.I.G. v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-24-00148-CV
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IN THE INTEREST OF E.E.G. AND J.I.G.

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On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 11-05-05247-CV
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MEMORANDUM OPINION

This is an appeal from an “Order on De Novo Hearing Before Referring

Court[.]” “Eddie” and “Jacob” are the children who are the subject of the suit, and

they were almost 15 and 14 years old respectively at the time of the trial court’s

Order. 1 The children’s father, “Rick,” is the Appellant, and he raises two issues on

appeal challenging the Order. For the reasons explained below, we affirm.

1
We use pseudonyms to refer to the children and other family members. See
Tex. Fam. Code Ann. § 109.002(d).
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Procedural Background

The Prior Orders

In 2012, the trial court signed an agreed Final Decree of Divorce between Rick

and Nora. Rick and Nora had two children, Eddie and Jacob—Eddie was about three-

and-a half years old at the time of the divorce, and Jacob was about two-and-a-half

years old. In the Decree, the trial court ordered Rick to pay child support of $807 per

month, or 25% of his monthly income of $3,227.96.

In April of 2014, the trial court issued an Order Enforcing Child Support

Obligation, finding that Rick owed $12,757.48 in child support arrearage. The trial

court also found Rick in contempt for four counts of failure to pay court-ordered

child support and ordered that he be committed to the county jail for 180 days.

In December of 2016, the trial court issued an Order Enforcing and Temporary

Order Modifying Medical Support Obligation, confirming that Rick owed

$16,353.05 in child support arrearage. The trial court also modified the Divorce

Decree by ordering Rick to pay $50 per month in cash for medical support. In June

of 2017, these findings were adopted and included in an Order styled as “Order

Enforcing and Modifying Support Obligation Following De Novo[.]”

In August of 2019, the trial court signed an Agreed Order in Suit to Modify

Parent-Child Relationship, finding that Rick owed $26,101.71 in child support

arrearage, and he owed $1,057.61 in medical support.

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In March of 2020, the trial court signed another Agreed Order in Suit to

Modify Parent-Child Relationship, finding that Rick had $3,224 in net monthly

resources and ordering him to pay $806 per month in child support.

The Office of the Attorney General (“AG”) filed a Suit for Modification of

Support Order and Motion to Confirm Support Arrearage on May 22, 2023. Therein,

the AG requested that the trial court modify the March 2020 order that found Rick’s

net monthly resources were $3,224 and sought an inquiry into Rick’s ability to pay.

The AG also alleged that Rick’s child support arrearage as of May 21, 2023, was

$16,787.96 and his medical support arrearage was $2,244.24. After a hearing in

February of 2024, an associate judge signed a modification order finding that Rick

was $22,782.18 in arrears on child support and $2,739.82 in arrears on medical

support, finding no material and substantial change since the prior order, and

denying the request for modification. The trial court held a de novo hearing on March

12, 2024 on the AG’s request to modify child support. At the time of the hearing,

Jacob was almost 14 years old, and Eddie was almost 15 years old.

Evidence at Trial

At the de novo hearing, counsel for the AG told the trial court that in a

previous administrative hearing, the AG argued against modification of the previous

order. Nora’s counsel also told the trial court that she was not asking for a

modification of child support. According to Nora’s counsel, Rick requested the de

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novo hearing. The trial court noted that it was “unusual[]” for Rick to ask for the

hearing “on an issue that he didn’t plead for.”

Rick testified that he is a licensed master plumber, he used to have his own

plumbing business, and after some hard times during the pandemic, he passed the

business to Barbara, his current wife. He testified that two of his children were the

subject of the current suit, and he also had two other children with his current wife.

According to Rick, he and Barbara were separated at the time of the hearing.

Rick identified certain exhibits as his paycheck stubs, his tax records, and his

bank statements. Rick agreed his gross income averaged $2,691.14 per month, and

he agreed that his monthly child support obligation should be $372.43 per month.

Rick testified that his income in the previous year was about $32,000, and as of the

time of the hearing, he owed taxes to the IRS. He testified that his income in 2021

was $14,360. Rick stated that he wanted his monthly child support to be set at

$372.43 per month. Rick did not recall if in the previous administrative hearing he

asked for his child support to be about $600.

Rick testified that he is the only licensed plumber in his plumbing business.

According to Rick, he works when he can, but he is not able to work for another

company because he has seizures, which started after a head injury when he was

about 13 years old. Rick testified that his plumbing business has eight other

employees, and his wife’s uncle handles the finances.

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The trial court asked Rick, “You can barely make ends meet right now. Is that

[] a fact?” And Rick replied, “that’s a fact.” The court asked Rick if he knew how

much child support he owed, and Rick replied, “[a]bout [$]22,000.” Upon further

questioning by the trial court, Rick agreed that he has at times spent more than $50

going out to eat, and that he has given his current wife Barbara money for child

support. The trial court observed that Rick’s bank statements in evidence showed

charges of $65 at one restaurant, $70 at another restaurant, and $100 at a third

restaurant. After noting that based on his financial records, it did not appear that Rick

had made child support a priority, the trial court denied Rick’s request to modify his

child support. The trial court also stated that the court was not sure Rick was entitled

to a modification because he did not ask for a modification “to begin with[]” and

there was nothing to support any requested relief.

After the hearing, the trial court signed an Order on De Novo Hearing Before

Referring Court approving and adopting the associate judge’s recommendation. Rick

filed a Notice of Appeal.

Issues

Appellant raises two issues on appeal. In his first issue, he argues that the trial

court abused its discretion because there was no probative or substantive evidence

to support denial of the modification. And in his second issue, he argues that the trial

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court acted “arbitrarily, unreasonably, or without reference to guiding rules or

principles[]” when questioning him at trial.

Analysis

Issue One

In his first issue, Appellant argues there is uncontroverted evidence that shows

he is entitled to a modification of his child-support obligation as a matter of law.

According to Appellant, a “material and substantial change in circumstances” exists

because he has other children to support. He also argues that child support imposed

by the previous order is “not in line” with his current income and he cannot obtain

employment through his union due to his disability. Appellant argues in the

alternative that he has met the requirements of section 156.401(a)(2) of the Family

Code, which justifies a modification absent a material and substantial change of

circumstances.

At the hearing, the trial court noted that Rick had filed no pleading requesting

a modification. Rick’s trial counsel told the trial court that he agreed he had no

pleadings to support a request for modification. A judgment must be supported by

the pleadings, and a party may not be granted relief in the absence of pleadings to

support such relief. See Tex. R. Civ. P. 301 (“The judgment of the court shall

conform to the pleadings[.]”); Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813

(Tex. 1983) (a judgment must be supported by the pleadings). Our appellate record

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includes no pleading or a motion for modification on file with the trial court except

for his Request for De Novo Hearing after the hearing before an associate judge. The

Request asks the trial court to “reform the temporary order rendered by the

associate[] Judge and grant relief requested in [Rick’s] prior pleadings[,]” however,

Rick filed no “prior pleadings.” Appellant was not entitled to relief because he had

filed no pleading with the trial court seeking a modification. See Cunningham, 660

S.W.2d at 813. We conclude the trial court did not err, and we overrule Appellant’s

first issue.

Issue Two

In his second issue, Appellant challenges the trial court’s questioning of him

at trial, and Appellant contends that the trial court ruled without reference to any

guiding rules or principles when it decided that the standard for modification was

“making ends meet.” Specifically, Appellant objects to the following line of

questions the trial court asked him at trial:

The Court: I’m just asking you a question, sir. You can barely make
ends meet right now. Is that [] a fact?
...
The Court: Okay. Did you ever go out to eat during that time frame and
spend over $50 at a restaurant?
...
The Court: [Y]ou’re barely making ends meet, it looks like in April you
gave [Barbara] $200, you spent $25 at Starbucks, and there
in April, you spent $65 at a restaurant, Taqueria Arandas,
and then there’s a day on October 16th where you spent $70
at one restaurant, another 70 at another restaurant, which is
a total of $140. The very next day, you spent over $100 at
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Golden Seafood. Okay. That doesn’t sound like someone
who’s barely making ends meet, sir.
...
The Court: Okay. Well, I’ll [] tell you what. Who’s [Barbara]?

[Rick]: She’s currently my wife right now.

The Court: Okay. So you paid her $200 in April?
...
The Court: It simply doesn’t sound like it matches up for me. You have
to pick what’s a priority; and it doesn’t appear, based on
your spending in just this document here, that you’ve made
child support for these two children your priority. And
unless you have anything else to present, I’m denying your
request today.

Appellant argues that Texas case law provides no support for these questions nor for

“barely getting by” as a standard for modification of child support. Further,

Appellant argues that the Family Code does not support “making child support a

priority as a standard for modification of child support.” Therefore, according to

Appellant, the trial court’s questions do not provide any probative or substantive

evidence relevant to whether there had been a material and substantial change or

whether Appellant was entitled to a modification.

The Appellee argues that Appellant failed to preserve error on this issue. We

agree. To preserve error for appeal, a party must make its objection to the trial court

in a timely fashion and obtain a ruling thereon. See Tex. R. App. P. 33.1. Failure to

make a complaint known to the trial court in a timely manner waives the complaint

on appeal. See Price v. Gardner, No. 09-24-00193-CV, 2025 Tex. App. LEXIS 181,

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at **4-5 (Tex. App.—Beaumont Jan. 16, 2025, no pet.) (mem. op.). The record does

not reflect that Appellant ever objected to the trial court’s questioning nor to the use

of the admitted exhibits. Therefore, we conclude that Appellant failed to preserve

this issue for appeal, and we overrule Appellant’s second issue.

Having overruled both of Appellant’s issues, we affirm the trial court’s order.

AFFIRMED.

LEANNE JOHNSON
Justice

Submitted on January 29, 2025
Opinion Delivered July 3, 2025

Before Johnson, Wright and Chambers, JJ.

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