In the Interest of A.L.B., a Child--Appeal from 170th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-01-320-CV

IN THE INTEREST OF A.L.B., A CHILD

From the 170th District Court

McLennan County, Texas

Trial Court # 2000-599-4

MEMORANDUM OPINION

This is an appeal from an order denying a motion to modify child support in a suit affecting the parent-child relationship. Pursuant to the divorce decree, Ryan Douglas Everett was obligated to pay child support to Jennifer Marie Baldwin, his former wife and the managing conservator of their daughter. Everett filed a motion to modify his support obligations during his incarceration with the Texas Department of Criminal Justice. The trial court denied his motion. We will affirm the trial court s order.

Baldwin sued Everett for divorce in February 2000. Soon thereafter, Everett violated his probation for a conviction of indecency with a child and, after his probation was revoked, was sent to prison in April. The final hearing of the divorce proceedings occurred in July, and Everett failed to appear because he was incarcerated. As a result of his non-appearance, the trial court granted all of Baldwin s requested relief, which included a dissolution of the marriage and an order requiring Everett to pay $155 per month in child support.

In May 2001, Everett filed a motion to modify his support obligations on the ground that his incarceration constituted a material and substantial change such that his payments should be suspended until he is released from prison. Tex. Fam. Code Ann. 156.401(a)(1) (Vernon Supp. 2002). Everett, however, was incarcerated at the time the trial court issued the original child support order in July 2000. Therefore, his incarceration is not a material and substantial change.

Thus, we affirm the trial court s order denying his motion.

BILL VANCE

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed May 1, 2002

Do not publish

[CV06]