Frivolous Modification Suit Supports Attorney’s Fees | Higley v. Jorgensen (2026)

Scott Kenneth Higley v. Elesa Jo Jorgensen, 03-24-00568-CV, August 27, 2026.

On appeal from 353rd District Court of Travis County

Synopsis

A Texas trial court may deny a child-support modification when the movant fails to prove a material and substantial change in circumstances, and it may also award attorney’s fees when the modification suit is frivolous under Texas Family Code section 156.005 and related sanction authority. In Higley v. Jorgensen, the Austin Court of Appeals affirmed both the denial of modification and a fee award against a pro se movant whose modification claims lacked sufficient evidentiary support and generated unnecessary litigation expense.

Relevance to Family Law

This case matters directly to family-law litigators handling SAPCR modifications, especially child-support and conservatorship modification suits filed after divorce. The opinion reinforces two practical points: first, a pleading-level allegation of changed circumstances is meaningless without competent proof at hearing; and second, a weak or abusive modification filing can expose the movant to substantial fee shifting, not merely denial on the merits. For practitioners in divorce, custody, and post-decree enforcement/modification practice, Higley is a useful reminder that modification litigation is not cost-neutral when the statutory predicates cannot be proved.

Case Summary

Fact Summary

The parties divorced in 2021 under an agreed final decree requiring the father to pay $2,300 per month in child support. The decree was later modified by agreement in 2022 to allow the children’s primary residence to be in either Galveston County or Travis County and contiguous counties.

In 2023, the father filed a petition to modify the parent-child relationship, seeking changes to conservatorship and a reduction or elimination of child support. He alleged a material and substantial change in circumstances, but the mother challenged the suit aggressively through a no-evidence summary-judgment motion, discovery motions, and requests for sanctions. The record reflected repeated motion practice, discovery disputes, a failed deposition appearance, and litigation over matters the mother characterized as legally unsupported or irrelevant.

The trial court initially granted no-evidence summary judgment, later reconsidered part of that ruling as to conservatorship issues, and separately sanctioned the father for attempting to revoke an earlier agreed modification concerning the children’s residence restriction. By the time of final hearing, the father was proceeding pro se.

At the final hearing, the father attempted to prove a reduction in income. His evidence showed approximately $82,000 in gross income in 2021, about $121,000 in 2022, and about $93,000 in 2023. He contended that his 2021 income picture was distorted because he had been working as a travel nurse receiving non-taxable housing and food stipends, and that his post-divorce earnings had effectively declined. But his own materials also showed substantial earnings, including a second job he voluntarily took in 2024. The mother’s counsel also presented evidence of fees incurred defending the suit and asked for an award under the frivolous-filing provision, ultimately limiting the request to fees incurred after the April 2024 hearing.

The trial court denied the requested modification and awarded $14,222.50 in attorney’s fees, expenses, and costs under Texas Family Code section 156.005 for frivolous filing of the modification suit. The father appealed both rulings.

Issues Decided

• Whether the trial court abused its discretion by denying the father’s request to reduce his child-support obligation.
• Whether the trial court abused its discretion by awarding attorney’s fees to the mother for defending against a frivolous suit to modify the parent-child relationship.
• Whether a requested child-support modification may properly be denied when the movant fails to prove a material and substantial change in circumstances.
• Whether attorney’s fees are sustainable under Texas Family Code section 156.005 and related sanction authority when a modification proceeding lacks evidentiary support and imposes unnecessary litigation costs.

Rules Applied

Texas modification jurisprudence remains anchored in the abuse-of-discretion standard. The court cited the familiar rule that child-support rulings, including modification decisions, are reviewed for abuse of discretion. Under that standard, a trial court does not abuse its discretion if some substantive and probative evidence supports the ruling and the court acts within guiding legal principles.

For child-support modification, the controlling statutory predicate is proof of a material and substantial change in circumstances since rendition of the order to be modified. A movant seeking reduction bears the burden to produce evidence sufficient to allow the trial court to compare circumstances at the time of the prior order with circumstances at the time of the requested modification.

On fees, the opinion recognizes the Family Code’s express authority to address frivolous modification suits. Section 156.005 permits a court to tax attorney’s fees and expenses as costs against a party who files a suit to modify the parent-child relationship frivolously or for purposes of harassment. The opinion also fits within broader trial-court sanction power over litigation conduct that is not warranted by existing law or lacks evidentiary support.

The court also noted a procedural appellate rule with practical significance: absent a request for findings of fact and conclusions of law, complaints about their absence are waived. In a family-law bench trial, that omission often leaves the appellant facing implied findings supporting the judgment.

Application

The court’s analysis turned first on proof, or more precisely the lack of proof, on the statutory basis for reducing child support. The father argued that his income had fallen from the period when support was originally set because he had previously worked under a lucrative COVID-era travel-nurse contract with additional non-taxable stipends. But the evidentiary picture did not require the trial court to accept that framing. The admitted W-2s showed that his 2023 gross income was still higher than his 2021 gross income, and the court was entitled to weigh that objective documentary evidence heavily.

Just as important, the father’s evidence did not establish the necessary comparative baseline with enough clarity to compel modification. His argument depended on adding non-taxable reimbursements and stipends to his 2021 earnings picture, but the trial court could reasonably conclude that the proof still failed to demonstrate a legally sufficient material and substantial change justifying a downward modification. His later decision to work a second job and his testimony that he would rather not maintain that workload did not substitute for proof that the original support obligation had become improper under the statute.

On attorney’s fees, the record gave the trial court more than a bare failed modification claim. The mother’s counsel detailed extensive and expensive motion practice, venue disputes, repeated filings, already-sanctioned conduct, and broad discovery requests that were portrayed as disconnected from any legitimate modification theory. Counsel also testified that earlier nominal fee awards had not deterred the conduct and that substantial additional fees were incurred after April 2024 because the litigation continued to expand. Against that record, the trial court could reasonably find the modification litigation frivolous within the meaning of section 156.005 and award a more meaningful fee amount.

The appellate court, reviewing deferentially, had little difficulty sustaining both rulings. The denial of modification rested on failure of proof as to the statutory predicate. The fee award rested on a record showing more than merely losing on the merits; it showed litigation conduct and claims the trial court could characterize as unsupported and needlessly burdensome.

Holding

The court held that the trial court did not abuse its discretion by denying the father’s request to reduce child support. Because the movant failed to carry his burden to prove a material and substantial change in circumstances since the prior order, the trial court acted within its discretion in refusing to modify the obligation.

The court also held that the attorney’s fee award was sustainable. A party who files a frivolous suit to modify the parent-child relationship may be ordered to pay the opposing party’s attorney’s fees, expenses, and costs under Texas Family Code section 156.005, and the record here supported the trial court’s determination that such relief was appropriate.

Practical Application

For family-law litigators, Higley is a strong case to cite when opposing loosely pleaded, weakly supported modification claims—particularly child-support reductions premised on generalized complaints about income strain rather than disciplined comparative evidence. The case confirms that courts are not required to indulge a movant’s narrative where the financial documents do not establish the statutory threshold. If the prior order was based on a unique compensation structure—contract work, stipends, overtime spikes, business income, bonuses, or temporary assignments—the movant must present a rigorous apples-to-apples comparison, not a conclusory assertion that things are now worse.

The fee component is equally important. Many practitioners assume section 156.005 is reserved for obviously abusive custody litigation, but Higley shows that the statute can also support fees in a child-support modification context when the filing lacks evidentiary support and is accompanied by burdensome collateral litigation. That makes the case useful both offensively and defensively: offensively, when seeking fees for defending a baseless modification; defensively, when counseling a client that filing first and “sorting out the proof later” can become expensive.

The opinion also underscores the strategic value of building a sanctions record over time. Jorgensen’s counsel did not rely on a single bad filing. He documented the cumulative burden: discovery abuse, venue resistance, meritless motion practice, previously sanctioned conduct, and fees tied to specific phases of the case. That is the kind of record that makes a fee award far more durable on appeal.

For appellate preservation, the case is also a quiet reminder to request findings of fact and conclusions of law in bench-tried family cases involving discretionary rulings and fee awards. Their absence often strengthens the judgment on appeal by allowing implied findings to fill gaps.

Checklists

For Movants Seeking Child-Support Modification

• Identify the exact order to be modified and its effective date.
• Prove the circumstances that existed when that order was signed.
• Prove the current circumstances with admissible, organized financial evidence.
• Present a true comparative analysis rather than isolated current hardship evidence.
• Address all components of compensation, including overtime, bonuses, stipends, reimbursements, contract premiums, and non-taxable benefits.
• Explain whether any prior income level was temporary, extraordinary, or nonrecurring.
• Tie the evidence directly to the statutory standard of material and substantial change.
• Avoid filing until the evidentiary record is sufficient to survive both merits review and a frivolous-filing challenge.

For Respondents Defending Against Weak Modification Claims

• Force the movant to prove the baseline circumstances at the time of the prior order.
• Use discovery to pin down all income sources and compensation history.
• Consider no-evidence procedures where the movant cannot produce proof of the statutory predicate.
• Preserve examples of irrelevant, excessive, or abusive discovery.
• Track duplicative motions, venue gamesmanship, and other cost-driving conduct.
• Build a chronological record showing why the suit is not merely unsuccessful, but frivolous or harassing.
• Segregate fees by task and by time period to support a targeted fee request.
• Consider invoking both Family Code fee authority and sanction principles where supported by the record.

Building a Sustainable Attorney’s-Fee Record

• Offer testimony on counsel’s experience, specialization, and hourly rate.
• Establish that the hourly rate is reasonable for the relevant market.
• Admit billing records or equivalent documentary support.
• Describe the work performed with enough specificity to connect it to the frivolous conduct.
• Separate already-awarded fees from newly requested amounts.
• If possible, limit the request to clearly identifiable phases of unnecessary litigation.
• Explain why lesser sanctions or nominal fee awards have not deterred the conduct.
• Ask the court to characterize the award clearly in the judgment under section 156.005.

Avoiding the Non-Prevailing Party’s Mistakes

• Do not rely on conclusory allegations of changed circumstances.
• Do not assume pro se status insulates a litigant from fee shifting.
• Do not pursue collateral theories that are unsupported by existing law.
• Do not serve broad personal discovery untethered to the modification issues.
• Do not multiply hearings and motion settings without a clear legal basis.
• Do not ignore the appellate importance of findings of fact and conclusions of law.
• Do not expect a court to rework incomplete compensation evidence into a viable modification case.

Citation

Scott Kenneth Higley v. Elesa Jo Jorgensen, No. 03-24-00568-CV, __ S.W.3d __ (Tex. App.—Austin Aug. 27, 2026, no pet. h.).

Full Opinion

Read the full opinion here

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