Full Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-24-00568-CV Scott Kenneth Higley, Appellant v. Elesa Jo Jorgensen, Appellee FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-FM-23-006671, THE HONORABLE KARIN CRUMP, JUDGE PRESIDING MEMORANDUM OPINION Appellant Scott Kenneth Higley, proceeding pro se, appeals the district court’s order denying Higley’s request to modify his child-support obligation. In two issues on appeal, Higley asserts that the district court abused its discretion by (1) denying his request to reduce the amount of child support he owes; and (2) awarding attorney’s fees to appellee Elesa Jo Jorgensen for Higley’s filing of a frivolous suit for modification. We will affirm the district court’s order. BACKGROUND In November 2021, an agreed final decree of divorce was rendered in Galveston County between Higley and Jorgensen. The decree appointed Jorgensen as the parent with the exclusive right to designate the primary residence of their two children within Galveston County or counties contiguous to Galveston County and ordered Higley to pay child support in the amount of $2,300 per month. In February 2022, the divorce decree was modified by agreement of the parties to allow the primary residence of the children to be within either Galveston County or Travis County and their contiguous counties. In May 2023, Higley filed a petition to modify the parent-child relationship, seeking to modify the terms of conservatorship and his child-support obligation. Regarding child support, Higley alleged that “the circumstances of the child[ren] or a person affected by the order have materially and substantially changed since the date of the rendition of the order to be modified, and the support payments previously ordered should be decreased or eliminated.” In response, Jorgensen filed a no-evidence motion for summary judgment, arguing that there was no evidence that modification of the terms of conservatorship was in the best interest of the children or that a material and substantial change in circumstances had occurred to justify the modification. Jorgensen also filed a motion to compel discovery, including documents relating to Higley’s income, and a motion for sanctions relating to Higley’s failure to appear for a deposition. Following a hearing on the motions, the district court granted the motion to compel discovery on the documents related to Higley’s income, denied Jorgensen’s motion for sanctions but awarded Jorgensen nominal attorney’s fees in the amount of $500 as costs, and took the no-evidence motion for summary judgment under advisement. The district court later granted the no-evidence motion for summary judgment. Higley filed a motion to reconsider the district court’s summary-judgment ruling. During an April 2024 hearing on the motion, counsel for Jorgensen presented another motion for sanctions against Higley. Counsel represented that since the modification suit began, Jorgeson had incurred a total of $54,470.59 in attorney’s fees defending against the suit. Counsel requested $53,697.79 in attorney’s fees, which he represented was the balance of fees owed after subtracting the attorney’s fees and costs that had already been awarded to Jorgensen. Counsel 2 explained that these fees were incurred through defending against and responding to: Higley’s filing of multiple motions and amended motions, which required “considerable research having to go try and figure out what basis they have for what they are asking for”; Higley’s opposition to a mandatory transfer of venue from Galveston County to Travis County (where Jorgensen and the children had resided for over a year), requiring Jorgensen to file pleadings and prepare for a hearing in Galveston County; Higley’s attempting to set and reset a hearing on a motion for sanctions that had already been ruled on and denied by the district court; and Higley’s fifty-two requests for production that counsel argued were frivolous, including requests for documents related to Jorgensen’s “[c]ompensation, travel records, alcoholic beverages,” “[s]urveillance items and reports, diaries and journals,” “mental health and physical health records,” and “[r]esumes, job applications, [and] religion.” The district court took the motions under advisement and later reversed its ruling on summary judgment, finding that there was more than a scintilla of evidence that modification of the terms of conservatorship was in the best interest of one of the children. The district court also granted in part Jorgensen’s motion for sanctions, awarding her $5,000 in attorney’s fees for defending against Higley’s attempt to revoke the earlier agreed modification of the divorce decree that allowed the children’s primary residence to be in Travis County. The district court concluded that Higley’s attempted revocation was “sanctionable conduct” because it was “not warranted by existing law” and “[did] not have evidentiary support.” The district court also granted a motion to withdraw filed by Higley’s counsel, and Higley has proceeded pro se since then. The case proceeded to a final hearing on Higley’s modification suit on July 1, 2024. Higley testified that he works at the University of Texas Medical Branch in Galveston as a 3 nurse and that in April or May 2024, he took a second job with a company called HealthTrust, making approximately $55 per hour. Higley added that because of his second job, he was working twelve-hour shifts six days a week, and he “would rather not work six days a week.” Higley further testified that, according to his W-2 forms that were admitted into evidence, his gross income in 2021, the year of the divorce decree, was approximately $82,000. In 2022, his gross income was approximately $121,000. And in 2023, the year Higley filed his modification suit, his gross income was approximately $93,000. Higley acknowledged that his gross income in 2023 was approximately $11,000 more than his gross income in 2021, but he argued that the income shown in his W-2 forms did not “reflect the nontaxable income that [he] was earning as a travel nurse” in 2021, e.g., “stipends for all housing and food.” In an affidavit that he submitted to the trial court after the final hearing had concluded, 1 Higley explained his income situation as follows: When child support was calculated for the divorce agreement in 2021, I was still working under COVID-19 contract as a travel nurse in Florida. Since that time I have had a significant decrease in income. You can see that from my wage statements (see submitted documents Exhibit A) in February of 2021, when the child support was calculated, I was making around $3500/week which is nearly double my current net income in two weeks (see Exhibit B). As a result I have had to use saved retirement funds and incur large amounts of debt to continue to pay child support, rent, utilities, insurance, fuel, and grocery expenditures to maintain a safe environment to house my children over the last several years. .... Recently in the last few months I took a temporary contract with a local hospital, 1 At the conclusion of the hearing, the district court announced that it was going to deny Higley’s request to modify his child support, finding that he had failed to meet his burden to show a reduction in income. However, after additional argument from Higley, the district court allowed him another opportunity to present evidence of his income, and he did so. 4 [which] increased my work hours from the standard 36-hour work week for a nurse to 72 hours per week. This job was taken to alleviate my church from assisting me in paying rent and still meet the requirement of child support from the state. .... In Exhibit C my current annual income, as indicated by the W-2 form, is $93236.93, and in Exhibit D medical insurance for the children is $326.84 per month, dental insurance is $67.26 per month. Documentary evidence attached to Higley’s affidavit showed that his net pay in 2021 as a travel nurse, which included reimbursement for food and housing, was approximately $3,000 per week. His net pay at UTMB varied based on his hours worked, but it was often approximately $3,000 every other week. Higley’s net pay at HealthTrust also varied, but it was often approximately $1,400 every week. Jorgensen’s counsel also provided testimony at the hearing regarding attorney’s fees incurred by Jorgensen. Counsel testified that his hourly rate was $425 per hour, that he was board certified in family law and has been practicing family law in Texas for over nine years, and that his hourly rate was in line with other attorneys. Counsel also provided documentary evidence showing the work that his firm had completed in the case and the time spent on each task. Counsel explained that he was requesting attorney’s fees for Higley’s filing of a frivolous modification suit and that he was seeking fees solely for the time period following the April 2024 hearing to the present, in the amount of $14,222. Counsel represented that “[t]he work that has been done for this has been considerable since that April 10th date. Mr. Higley has filed multiple motions. None of them were even set for today, including an enforcement asking 5 for jail time for Ms. Jorgensen.” Counsel also referenced a mediation between the parties during that time that proved unsuccessful. Counsel further argued that the district court’s award of nominal attorney’s fees as sanctions had proven inadequate to discourage Higley: This is the third time I’ve been down here on this case. Most cases I have never seen the inside of a courtroom once. This is the third time coming down here, and each time Mr. Higley has been ordered to pay a nominal amount of fees: one for not producing documents, one for not showing—for no-showing at a depo, and another time for the frivolous revocation of an agreed modification. These nominal amounts of fees have not sent the message that I believe needs to be sent. Mr. Higley is here representing himself. He had two prior attorneys. Now he’s here by himself, so he has no actual cost to continue this battle. And that is why I am asking for—it’s minimal—14,000 compared to the almost 70,000 that has been incurred over the last fifteen months in this case. But a lot of work has been done, more so than in almost any case that I have on my docket right now. The district court denied Higley’s petition to modify the parent-child relationship, including his request to reduce his child-support obligation, and awarded Jorgensen $14,222.50 for reasonable attorney’s fees, expenses, and costs, with interest at 8.5% percent per year compounded annually from the date the judgment is signed until paid, “in accordance with Texas Family Code § 156.005 Frivolous Filing of Suit.” Higley did not request findings of fact or conclusions of law, and none were made. 2 This appeal followed. STANDARD OF REVIEW We review trial court decisions about child support, including modification of child support, for abuse of discretion. See Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011); Worford 2 Higley complains on appeal about the district court’s failure to make findings of fact and conclusions of law, but he waived that complaint by failing to request such findings and conclusions in the court below. See Howe v. Howe, 551 S.W.3d 236, 243 (Tex. App.—El Paso 2018, no pet.). 6 v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); Udall v. Minns, 730 S.W.3d 704, 726 (Tex. App.—Austin 2026, pet. denied). “A trial court abuses its discretion when it acts ‘without reference to any guiding rules or principles; or in other words, [when it acts] arbitrarily or unreasonably.’” In re J.J.R.S., 627 S.W.3d 211, 218 (Tex. 2021) (quoting Worford, 801 S.W.2d at 109). In family-law cases, the abuse-of-discretion standard overlaps with traditional standards for reviewing the sufficiency of the evidence. See Zeifman v. Michels, 212 S.W.3d 582, 587-88 (Tex. App.—Austin 2006, pet. denied). Consequently, legal and factual insufficiency are not independent grounds of error but are relevant factors in assessing whether the trial court abused its discretion. Id. at 587. To determine whether the trial court has abused its discretion, we engage in a two-pronged inquiry, analyzing whether (1) the trial court had sufficient evidence upon which to exercise its discretion and (2) the trial court erred in its application of that discretion. Id. at 588. Traditional standards for legal and factual sufficiency come into play with the first question. Id. When conducting a legal-sufficiency review, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). When conducting a factual-sufficiency review, we consider all the record evidence and set aside the trial court’s order only if the evidence is so weak as to make the order clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We defer to the factfinder’s implicit determinations of credibility and weight to be given to the evidence. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). Because the trial court acts as the factfinder 7 in a bench trial, the trial court is the “sole judge of the credibility of the witnesses and the weight to be given their testimony.” McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986). The trial court does not abuse its discretion if it bases its decision on conflicting evidence or when some evidence of a probative or substantive character exists to support its decision. Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.—Austin 2014, no pet.); Zeifman, 212 S.W.3d at 587. However, a trial court has no discretion to incorrectly analyze or apply the law, and its failure to analyze or apply the law correctly is an abuse of discretion. See Iliff, 339 S.W.3d at 78; Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). When no findings of fact or conclusions of law are requested or filed, as here, it is “implied that the trial court made all the findings necessary to support its judgment.” Worford, 801 S.W.2d at 109. “In determining whether some evidence supports the judgment and the implied findings of fact, ‘it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature.’” Id. (citing Renfro Drug Co. v. Lewis, 235 S.W.2d 609, 613 (Tex. 1950)). “The judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence.” Id. We also review a trial court’s award of attorney’s fees for abuse of discretion. Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 850 (Tex. 2018); El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012). When reviewing a trial court’s award of attorney’s fees, appellate courts “must ensure the record contains sufficient evidence to support such an award.” Yowell v. Granite Operating Co., 620 S.W.3d 335, 354 (Tex. 2020) (citing Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 505 (Tex. 2019)). “The party seeking attorney’s fees bears the burden of proof and must supply enough facts to support the reasonableness of the amount awarded.” Id. 8 DISCUSSION Child support In his first issue, Higley asserts that the district court abused its discretion by denying his request to reduce his child support obligation. According to Higley, the district court “ignored the drastic reduction in his income and neglected his earning capacity,” which “resulted in him having to work extreme hours in order to keep up with child support payments” and reduced “his time and ability to be with his kids.” Section 156.401(a) of the Texas Family Code provides that the trial court “may modify an order that provides for the support of a child if the circumstances of the child or a person affected by the order have materially and substantially changed” since the order was rendered or “it has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines.” Tex. Fam. Code § 156.401(a)(1), (2). Because less than three years had passed since the district court rendered the original child-support order, only the “material and substantial change” requirement is applicable here. The party seeking modification has the burden to demonstrate that there has been a material and substantial change. Zeifman, 212 S.W.3d at 589. To demonstrate that such a change has occurred, “the petitioner must demonstrate what conditions existed at the time of the entry of the prior order as compared to the circumstances existing at the time of the hearing on the motion to modify.” Id. “It is well-established that an obligor is a person affected by a child support order, and therefore a setback in the obligor’s financial circumstances can be a basis for finding that a material and substantial change has occurred since the rendition of a prior child 9 support order.” In re A.A.T., 583 S.W.3d 914, 921 (Tex. App.—El Paso 2019, no pet.). “However, not every change in a party’s income will qualify as a material and substantial” change, “and instead, what is required is ‘a marked decrease in income or steady decline without offsetting circumstances.’” Id. at 922 (quoting Plowman v. Ugalde, No. 01-14-00851-CV, 2015 WL 6081666, at *4 (Tex. App.—Houston [1st Dist.] Oct. 15, 2015, no pet.) (mem. op.)); see also Starck v. Nelson, 878 S.W.2d 302, 308 (Tex. App.—Corpus Christi-Edinburg 1994, no writ) (“Temporary slumps do not rise to the level of a material and substantial change in condition and should not support a permanent change in child support levels.”). “Moreover, the duty to pay support is not limited to an obligor’s ability to pay from current earnings but also extends to his or her financial ability to pay from any and all sources that might be available.” In re S.B.C., 952 S.W.2d 15, 18 (Tex. App.—San Antonio 1997, no pet.). “The court may also take into consideration a parent’s earning potential in determining a child support question.” In re G.J.S., 940 S.W.2d 289, 294 (Tex. App.—San Antonio 1997, no writ) (citing In re Striegler, 915 S.W.2d 629, 638 (Tex. App.—Amarillo 1996, writ denied)). Additionally, “[t]he best interest of the child should remain the trial court’s primary consideration in deciding whether to modify a support obligation,” Reagins v. Walker, 524 S.W.3d 757, 761 (Tex. App.— Houston [14th Dist.] 2017, no pet.), and this Court has held that the party seeking modification of a child-support order “has the burden to prove both a material and substantial change in circumstances and that the requested modification would be in the best interest of the children,” Squires v. McHale, 691 S.W.3d 225, 229 (Tex. App.—Austin 2024, no pet.). Here, Higley presented no evidence of how a reduction in his child-support obligation would be in the best interest of the children, and the district court would not have abused its discretion in denying his request for that reason. See id. at 230-31. Additionally, 10 Higley’s W-2 forms showed that his gross income in 2023, the year he sought modification of his child-support obligation, was approximately $11,000 more than his gross income in 2021, the year of the divorce decree, and this evidence supports the district court’s implied finding that Higley’s income had not decreased at the time of his request to modify his child-support obligation. Moreover, even though Higley presented evidence that his current job at UTMB did not include reimbursement for food and housing, unlike his previous job as a travel nurse, the district court would not have abused its discretion in finding that Higley’s earning potential had not diminished since the divorce decree, as evidenced by his ability to find a second job that paid him approximately $1,400 per week, which was in addition to his first job that paid him approximately $3,000 every other week. This evidence supports an implied finding by the district court that there had not been a material and substantial change in Higley’s circumstances so as to justify a downward reduction in his child-support obligation. On this record, we cannot conclude that the district court abused its discretion in denying Higley’s request to reduce his child support. We overrule Higley’s first issue. Attorney’s fees for frivolous or harassing suit In Higley’s second issue, he asserts that the district court abused its discretion by awarding attorney’s fees to Jorgensen for Higley’s filing of a frivolous suit for modification. According to Higley, there was insufficient evidence to prove that his suit was frivolous. Texas Family Code Section 156.005 provides that “if the court finds that a suit for modification is filed frivolously or is designed to harass a party, the court shall state that finding in the order and assess reasonable and necessary attorney’s fees, court costs, and expenses 11 against the offending party.” Tex. Fam. Code § 156.005. Awarding attorney’s fees to the opposing party under Section 156.005 is an “explicit sanction” for filing a frivolous modification suit. In re A.C.J., 146 S.W.3d 323, 326 (Tex. App.—Beaumont 2004, no pet.). “‘A “frivolous” suit is generally understood to mean one that does not have a reasonable basis in law or fact.’” Kelsall v. Haisten, 564 S.W.3d 157, 165 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (quoting Thielemann v. Blinn Bd. of Trs., No. 01-14-00595-CV, 2015 WL 1247018, at *2 (Tex. App.— Houston [1st Dist.] Mar. 17, 2015, no pet.) (mem. op.)). “In determining whether sanctions are appropriate, the trial court must examine the facts available to the litigant and the circumstances existing when the litigant filed the pleading.” Id. In this case, the district court had already made a finding that Higley had engaged in “sanctionable conduct” by attempting to revoke the earlier agreed modification of the divorce decree that allowed the children’s primary residence to be in Travis County, which the district court concluded was “not warranted by existing law” and “[did] not have evidentiary support.” Based on this and additional conduct by Higley, summarized above, while the modification suit was pending, the district court would not have abused its discretion in finding that the suit was not brought in good faith but was designed to harass Jorgensen. See, e.g., Silverman v. Johnson, No. 03-08-00271-CV, 2009 WL 2902716, at *8 (Tex. App.—Austin Aug. 26, 2009, no pet.) (mem. op.) (concluding that history of appellant’s conduct during course of litigation “suggests that [appellant’s] motion to modify was consistent with an overall pattern of harassing behavior directed at prolonging litigation and draining [appellee’s] resources”). Moreover, even if the record did not support the district court’s finding that attorney’s fees were warranted under Section 156.005, Section 106.002 of the Family Code provides broad authorization for a trial court to “render judgment for reasonable and necessary 12 attorney’s fees, court costs, and expenses” in any suit affecting the parent-child relationship, see Tex. Fam. Code § 106.002, and on this record, the district court would not have abused its discretion in awarding attorney’s fees to Jorgensen under that provision, see Silverman, 2009 WL 2902716, at *8 (concluding in alternative that “even in the absence of a finding that [appellant’s] suit was frivolous or designed to harass, the trial court had discretion to award [appellee] her reasonable attorney’s fees and expenses” under Section 106.002). We overrule Higley’s second issue. CONCLUSION We affirm the district court’s order. __________________________________________ Gisela D. Triana, Justice Before Justices Triana, Theofanis, and Ellis Affirmed Filed: August 27, 2026 13