Appeals court rejects contingent child support and custody provisions

San Antonio Court of Appeals eliminates decree provisions making payment of child support and custody/possession dependent on the distance of mother's residence and disapproves of measuring distance by estimated drive time; strikes complained-of provisions on void-for-vagueness grounds.

In the Interest of D.A.I., (Martin J. Ippel) v. Maria Borazjani No. (Tex.App.- San Antonio (Jul. 11, 2007)(Opinion by Justice Hilbig)(contingent SAPCR provisions stricken)
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2004-CI-06855
Honorable Barbara Hanson Nellermoe, Judge Presiding
Disposition on appeal: Challenged provisions of trial court's order reversed and judgment rendered

OPINION BY JUSTICE HILBIG

This is an appeal from a final order in a suit affecting the parent-child relationship. The trial court named parents Maria Borazjani and Martin J. Ippel joint managing conservators of their minor child. Martin was given the exclusive right to establish the child's primary residence and direct his education. Martin appeals the trial court's award to Maria of $300.00 per month in child support to be used as a rent supplement in the event she moved her residence within a certain proximity of his residence and the alternative possession orders based on the location of Maria's residence. We reverse and render.

FACTUAL AND PROCEDURAL BACKGROUND

Maria and Martin met in 1996. They did not marry, but in 1998 had a child, D.A.I. The parties had what can only be described as an off-again-on-again relationship from 1996 through 2004-sometimes residing together, sometimes not. In 2004 their relationship ended. Martin filed suit to establish paternity and conservatorship. Maria filed suit to resolve issues of conservatorship, support, and possession. The suits were consolidated by agreement.

Following a bench trial, the court found Martin was the father of D.A.I. and named the parties joint managing conservators. The court awarded Martin the exclusive right to establish the child's primary residence and to direct the child's education. The court restricted the child's primary residence to the geographic boundaries of the North East Independent School District. In the next paragraph of its order, the court ordered that Martin maintain the child's residence:
. . . within a 20-minute average 7:30 a.m. weekday driving time from Hardy Oaks Elementary School of San Antonio, Bexar County, Texas, if at any time MARIA BORAZJANI has moved to maintain her primary residence within a 20-minute average 7:30 a.m. weekday driving time from Hardy Oaks Elementary School of San Antonio, Bexar County, Texas. (1)

The court entered alternate possession orders dependent upon Maria's residency. If Maria resides "within a 20-minute average 7:30 a.m. weekday driving time from Hardy Oaks Elementary School of San Antonio, Bexar County, Texas," then she and Martin have possession of D.A.I. on alternating weeks. If not, the Family Code's standard possession order applied. The trial court also conditioned an award of child support on Maria's residency. Maria would receive child support of $300.00 per month if she maintained her principal residence within the prescribed time limit. According to statements by the court, the purpose of the child support was for use as a housing supplement to permit Maria to live close to D.A.I.'s school. (2)

ISSUES ON APPEAL AND STANDARD OF REVIEW

Martin raises two issues on appeal alleging the trial court erred in (1) ordering him to pay child support to Maria because the support ordered was really impermissible spousal maintenance, and (2) entering alternate possession and support orders based on Maria's residency. Because our disposition of Martin's second issue regarding alternate possession orders disposes of this appeal, we need not address his first issue.

In family law cases issues such as conservatorship, possession, and child support are evaluated against an abuse of discretion standard. Grayson v. Grayson, 103 S.W.3d 559, 561 (Tex. App.-San Antonio 2003, no pet.). "A trial court abuses its discretion if it acts without reference to guiding rules or principles (legal issues), or acts arbitrarily or unreasonably (factual issues)." Gardner v. Gardner, 04-06-00218-CV, 2007 WL 1341186, at *1 (Tex. App.-San Antonio May 9, 2007, n.p.h.); see Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

ANALYSIS

In his second issue, Martin complains the trial court erred in entering portions of its final order because they are impermissibly indefinite, void for vagueness, and constitute an impermissible advisory opinion. We agree the complained of portions of the order are indefinite and vague; however, we disagree that they constitute an advisory opinion. (3)

Martin first contends the relevant provisions of the order are invalid because they are conditional or contingent upon future events. Texas law has long held that a judgment must be sufficiently definite and certain to define and protect the rights of all litigants, or it must provide a definite means of ascertaining such rights so the judgment can be executed without reference to facts not stated within the judgment. Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex. 1994); Steed v. State, 143 Tex. 82, 183 S.W.2d 458, 460 (1944).

Thus, a judgment cannot condition recovery on uncertain events or base its validity on what parties might do post-judgment. Hinde v. Hinde, 701 S.W.2d 637, 639 (Tex. 1985) (per curiam).

In Hale v. Hale, this court was presented with a similar issue. No. 04-05-00314-CV, 2006 WL 166518, at *3-4 (Tex. App.-San Antonio Jan. 25, 2006, pet. denied) (mem. op.). In that case the trial court ordered a father to pay child support in accordance with the statutory guidelines. Id. at *3. However, the court also ordered the father to pay an additional amount of child support in the event the mother and child were evicted from the family home, which was owned by the father's parents. Id. On appeal, the father argued the trial court abused its discretion in entering this contingent portion of the final decree. Id. Relying on the law requiring judgments to be definite and certain, we held the complained of portion of the decree was not sufficiently definite because the father had no way of knowing if he would be required to pay the extra child support because the mother might or might not be evicted in the future. Id. at *4.

Portions of the order in this case are similarly indefinite because Martin has no way of ascertaining if he will be required to pay child support or which part of the order regarding possession applies because the order is contingent upon Maria's future actions. The provisions of the order contingent upon the location of Maria's residence cannot be executed without determining facts not stated within the order itself and thus are invalid. (4)

Martin also contends these same portions of the order are void for vagueness. We agree. Defining a residency requirement by way of a timed drive is nebulous, even when limited to a general time and day of the week. The vagaries of traffic change daily and this suggested standard is not sufficiently precise to be reliable. Moreover, the order in no way defines how an "average" is to be determined. Accordingly, we hold the trial court abused its discretion in fixing terms of possession and child support based on an average drive-time. In light of the indefiniteness and vagueness of the complained of portions of the order, we sustain Martin's second issue.

CONCLUSION

The portions of the order requiring Martin to pay Maria $300.00 in child support as a housing supplement, as well as the portions of the order basing possession on Maria's residency, are indefinite and vague. Thus, they must be stricken from the trial court's final order.

We reverse the trial court's judgment and render judgment accordingly.

Steven C. Hilbig, Justice

1. This residency restriction would be expanded to Bexar County generally if Martin decided to remove the child outside the "20-minute average 7:30 a.m. weekday driving time" from Hardy Oaks Elementary and Maria did not reside within the designated area. It would be further expanded beyond Bexar County if Martin decided to move outside Bexar County and Maria did not reside within Bexar County.

2. While the court's order obviously included other provisions relating to conservatorship, possession, and support, we need not detail those here as they are not relevant to any issue on appeal.

3. Texas courts do not have the authority to render judgments that constitute mere advisory opinions. Patterson v. Planned Parenthood of Houston & Southeast Texas, Inc., 971 S.W.2d 439, 443 (Tex. 1998). The separation-of-powers doctrine prohibits courts from issuing advisory opinions. Texas Ass'n of Tex. Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). The distinctive feature of an advisory opinion is that it decides an abstract question of law without binding the parties. Ala. State Fed'n of Labor v. McAdory, 325 U.S. 450, 461 (1945); Texas Ass'n of Bus., 852 S.W.2d at 444. "An advisory opinion is one which does not constitute specific relief to a litigant or affect legal relations." Houston Chronicle Pub. Co. v. Thomas, 196 S.W.3d 396, 401 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (quoting Lede v. Aycock, 630 S.W.2d 669, 671 (Tex. App.-Houston [14th Dist.] 1981, writ ref'd n.r.e.)). Here, there was an actual controversy between the parties concerning possession and support and while the court's order might be erroneous, it did not merely decide an abstract question of law that had no binding effect. Thus, the portions of the order complained of by Martin did not constitute an impermissible advisory opinion.

4. Nothing in this opinion precludes the parties from entering into an agreement by which they would operate, without court intervention, under the provisions altering support and possession based on Maria's residency. Similarly, this opinion does not prevent Maria from seeking relief under the provisions of the Family Code governing modification. See Tex. Fam. Code Ann. § 156.001, et seq. (Vernon 2002 & Vernon Supp. 2006).

REVERSED AND RENDERED

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Full style of case: In the Interest of D.A.I., (Martin J. Ippel) v. Maria Borazjani
Appeal from 166th District Court of Bexar County