DBA Family Law Section Case Law Update - Dallas Bar Association

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D.B.A. Family Law Section Case Law Update January 1 – December 31, 2014

GEORGANNA L. SIMPSON, P.C. ATTORNEY AT LAW 1349 Empire Central Drive Woodview Tower, Suite 600 DALLAS, TEXAS 75247-4042 PHONE 214-905-3739 • FAX 214-905-3799 EMAIL: [email protected]

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DOMESTIC VIOLENCE MOTHER’S POST-DECREE REQUEST FOR A SECOND PROTECTIVE ORDER AGAINST FATHER WAS NOT BARRED BY RES JUDICATA BECAUSE THE TRIAL COURT HAD EXPRESSLY FOUND IN THE FINAL DIVORCE DECREE THAT FATHER HAD COMMITTED FAMILY VIOLENCE ¶14-5-01. Coffman v. Melton, ___ S.W.3d ___, 2014 WL 4377466, 14-13-00661-CV (Tex. App.— Houston [14th Dist.] 2014, no pet. h.) (09-04-14). Facts: During Mother and Father’s divorce proceedings, the trial court signed an Agreed Final Protective Order, in which the trial court found, and the parties agreed, that the order was necessary and in the best interest of Mother and Mother’s family to protect them from Father’s calls, harassment, and threats. The trial court also found that Father had committed family violence and that family violence was likely to occur again in the future. Less than a month before the prior order was set to expire, Mother filed an application for a second protective order. Mother testified of violations of the first protective order and confirmed allegations made in her first protective order. Specifically, Father had physically abused her, spit on her, plastered false and vulgar things on the side of her home, and threatened to take the Children from her and out of Texas. On cross-examination, Mother admitted she had not heard from Father in almost two years. After the hearing, the trial court granted Mother’s application for a second protective order. Father appealed, arguing that Mother’s request was barred by res judicata and that the evidence was legally and factually insufficient to support the trial court’s judgment. Holding: Affirmed Opinion: This case was transferred from the 9th COA to the 14th COA by the Tex. Sup. Ct. Thus, per TRAP 41.3, the case was decided using precedent of the 9th COA. Here, Father misplaced reliance on cases involving claims barred by res judicata. Father directed the COA to cases in which prior judgments found no family violence and, thus, prevented a party from obtaining a post-decree protective order based on evidence of pre-decree family violence. However, in this case, the opposite situation was presented. The Parties’ final decree contained an express finding of family violence. In fact, Father’s access to his Children was denied based on that finding. In addition, because the TFC limits the time period for which a protective order may be granted, an application for a new protective order seeks additional relief that could not have been sought during the prior proceeding. Mother’s request was not barred by res judicata. Further, Mother testified about Father’s two violations of the first protective order, and the trial court took judicial notice of the proceedings on the first protective order, including the trial court’s memory that the evidence at the first protective order hearing demonstrated “egregious and frightening” acts of family violence. Mother also testified that her fears of Father had grown worse and that Father “doesn’t follow the rules” and had disobeyed parts of the final decree. The trial court also had a copy of the first Agreed Final Protective Order, in which Father agreed the order was necessary and in the best interest of Mother and Mother’s family. Because evidence of past violence can constitute evidence of future violence, this evidence was sufficient to support the trial court’s finding that violence was likely to occur in the future.

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ANNULMENT ANNULMENT WAS PROPER WHERE HUSBAND FALSELY CLAIMED TO LOVE AND TO WANT TO MARRY WIFE AFTER HE HAD BEEN DETAINED BY HOMELAND SECURITY FOR HIS IMMIGRATION STATUS Zhang v. Zhang, No. 05-13-00389-CV, 2014 WL 3843841 (Tex. App.—Dallas 2014, no pet. h.) (mem. op.) (08-05-14). Facts: Husband was a citizen of the People’s Republic of China. Husband and Wife dated and had a Child before they married. After the Child was born, but before the marriage, Husband was detained by Homeland Security due to his immigration status. While detained, Husband professed his love for Wife, and the couple married by proxy. After they married, Husband told Wife that he did not love her and had not been faithful to her prior to marriage. Husband and Wife did not cohabitate after this confession. Wife filed for an annulment. The trial court found that Husband’s pre-marriage statements were made with the intent to induce Wife to marry Husband, and but for those statements, Wife would not have married Husband. The trial court also found that the marriage provided Husband with a legal benefit, and Husband had married Wife for the purpose of that legal benefit. The trial court granted the annulment. Husband appealed, arguing the annulment was not based on legally sufficient evidence. Holding: Affirmed Opinion: A trial court may grant an annulment to a party if the other party used fraud, duress, or force to induce the petitioner into marriage, and the petitioner has not cohabitated with the other party since learning of the fraud or since being released from the duress or force. Fraudulent inducement is established when a false material misrepresentation was made that (1) was known to be false when made, (2) was intended to be acted upon, (3) was relied upon, and (4) caused injury. Here, Husband professed his love for Wife and indicated that he wanted to marry her. However, after they married, Husband stated that he did not love her and had not been faithful to her before their marriage. Wife did not cohabitate with Husband after learning of his fraudulent statements. Wife would not have married Husband but for his fraudulent inducement. The trial court did not err in granting the annulment.

ANNULMENT AFFIRMED BECAUSE CIRCUMSTANTIAL EVIDENCE OF HUSBAND’S ACTIONS DURING MARRIAGE SUPPORTED JURY’S FINDING THAT HUSBAND FRAUDULENTLY INDUCED WIFE TO ENTER INTO THE MARRIAGE SO HUSBAND COULD OBTAIN A GREEN CARD Manjlai v. Manjlai, ___ S.W.3d ___, 2014 WL 4199201, 14-13-00463-CV (Tex. App.—Houston [14th Dist.] 2014, no pet. h.) (08-26-14). Facts: Wife was a U.S. citizen, and Husband was in the U.S. illegally, as was his extended family. Husband and his family retained a marriage broker, who introduced Husband and Wife. Before their marriage, Husband and Wife discussed Wife applying for a green card on Husband’s behalf; however, Husband did not disclose his illegal status. The Parties married in a civil proceeding, and Wife filed a

4 green card application for Husband. Husband’s family wanted parties to wait 9 months before the religious wedding ceremony. However, Wife’s family did not want to wait, and the Parties were subsequently married in a religious ceremony. Soon afterwards, the Parties moved to Boston. Husband told Wife that his family would be returning to Pakistan after the wedding, but his parents stayed and lived with the couple in a one-bedroom apartment. During this time, Husband never showed Wife any expressions of love. He did not buy her presents or flowers. Husband and his family borrowed large sums of money and gold jewelry from Wife and her family, but they failed to repay the money or return the jewelry. Wife told Husband that she wanted to return to Texas to be with her family. Soon after filing a portion of the green card application that required proof that the Parties lived together, Husband purchased a ticket for Wife to return to Texas alone. Later, Wife notified Husband that his green card was approved, so Husband travelled to Texas to retrieve the card. Husband avoided Wife for a few days, and then she received a text message from him stating “it’s all over.” Wife learned through a community member that Husband had divorced her according to Islamic tradition. Wife filed a petition for an annulment. During the trial, testimony revealed that Husband had discussed marriage and a green card application with another woman just before marrying Wife. Husband was formally engaged to this woman, although neither he nor his family disclosed that information to Wife. At the conclusion of the trial, the jury found that Husband had fraudulently induced Wife into the marriage and that she had not cohabitated with him after learning of the fraud. The trial court granted the annulment. Husband appealed, arguing that the evidence was legally insufficient to support the jury’s findings. Holding: Affirmed Majority Opinion: (J. Wise and J. Jamison) Texas Family Code Section 6.107 allows for an annulment if (1) the other party used fraud, duress, or force to induce the petitioner to marry, and (2) the petitioner did not voluntarily cohabitate after learning of the fraud or since being released from the duress or force. Fraudulent inducement is shown by proving that a false material representation was made with the knowledge that the representation was false; the representation was intended to be, and was in fact, relied upon; and the representation caused injury. A party’s intent is determined at the time the representation is made, but intent can be inferred from the party’s subsequent acts. Here, Husband insisted on Wife applying for a green card on his behalf. Prior to his marriage to Wife, he was informally engaged to another woman, with whom he had discussed obtaining a green card. Soon after obtaining his green card, Husband divorced Wife by Islamic tradition. Based on this evidence, coupled with Husband’s poor treatment of Wife during the marriage, a jury could have reasonably determined that Husband’s marriage vows were false representations when he made them. Further, although Wife realized during the marriage that Husband lied and hid things from her, she did not become aware of the “green card fraud” until after Husband divorced her. At that point, the Parties were not living together, and they did not cohabitate again after Wife learned of the fraud. Dissenting Opinion: (C.J. Frost) There are three ways to dissolve a marriage: divorce, annulment, and a declaration that a marriage was void. While a divorce is available under various circumstances, an annulment is only available in limited circumstances. Here, Wife presented evidence of Husband’s unseemly and abusive behavior, but all of the evidence presented included actions that occurred after the Parties’ civil ceremony. Prior to the civil ceremony, Wife knew that Husband wanted to obtain a green card and establish himself in America. Wife agreed to help in that endeavor. Additionally, Wife presented no evidence of any promises made by Husband at the civil ceremony. Further, throughout the relationship, the couple lived together, shared sexual relations, and held themselves out as husband and wife. Husband failed to disclose his informal engagement to another woman or that he was in the U.S. illegally. However, these nondisclosures were not misrepresentations. Additionally, even if Husband’s claim that his parents were going to move back to Pakistan constituted fraud supporting an annulment, Wife’s continued cohabitation with Husband after discovering the falsehood vitiated any such fraud.

5 Therefore, the evidence was legally insufficient to support the jury’s finding, and the COA should have reversed the judgment with instructions to render a divorce decree.

DIVORCE

INFORMAL MARRIAGE THERE IS NO COMMON-LAW DIVORCE IN TEXAS—ONCE A COMMON-LAW HUSBAND AND WIFE ESTABLISH THE “HOLDING OUT” ELEMENT OF A COMMON-LAW MARRIAGE, THEY CANNOT SUBSEQUENTLY UNDO THE MARRIAGE SIMPLY BY DENYING THE EXISTENCE OF THE MARRIAGE. McMaster v. Small, No. 14-13-00069-CV, 2014 WL 950471 (Tex. App.—Houston [14th Dist.], 2014, no. pet.) (03/11/2014) (mem. op.). Facts: Wife petitioned trial court for divorce alleging a common-law marriage to Husband. Jury found in favor of Wife, and Husband appealed. On appeal, COA reversed and remanded, holding that the evidence was factually insufficient to support the “holding out” element of a common-law marriage. On remand, Husband filed a no-evidence summary judgment motion on the “holding out” element. In her response, Wife attached transcripts from the original trial and affidavits containing her own testimony and the testimony of seven other individuals regarding the “holding out” element of the alleged common-law marriage. Nevertheless, the trial court granted the motion, and Wife appealed. Holding: Reversed and remanded. Opinion: On appeal, Husband argued that Wife failed to present any evidence of holding out occurring after 2005. The COA rejected Husband’s argument. In her pleadings, Wife alleged that she and Husband married in December 1991 and ceased to live together as husband and wife in August 2004. Because there is no such thing as a common-law divorce in Texas, a common-law marriage, like any other marriage, may be terminated only by death or a court decree. Therefore, even if the spouses denied the existence of a marriage after August 2004, those denials cannot undo the marriage. Accordingly, Wife had no burden to prove there was holding out in 2005 or afterward. Consequently, because Wife adduced more than a scintilla of evidence on the holding out element, the trial court erred by granting Husband a no-evidence summary judgment.

DIVORCE

VALIDITY OF MARRIAGE TEXAS LAW NOW RECOGNIZES THAT AN INDIVIDUAL WHO HAS HAD A “SEX CHANGE” IS ELIGIBLE TO MARRY A PERSON OF THE OPPOSITE SEX. In re Estate of Araguz, 443 S.W.3d 233 (Tex. App.—Corpus Christi 2014, pet. filed 06/27) (2/13/14). Facts: After Husband and volunteer firefighter died in the line duty, his mother (“Mother”) filed this a suit to declare his marriage to Wife void as a matter of law on the grounds that it constituted a same sex marriage. Wife was born in California in 1975 with male sex organs and was designated as “male” on her

6 birth certificate. At the age of twenty-one, Wife filed a petition in Harris County to have her name changed, stating that she was a woman with male anatomy and was working towards a sex change. The name change was granted, and Wife subsequently filed an application to amend her birth certificate to reflect the name change. After changing her name, Wife obtained a driver’s license from Kansas with the designation that she is female. She then used the Kansas driver’s license to obtain a Texas driver’s license with the designation that she was female. On August 19, 2008, Wife presented her Texas driver’s license to the County Clerk of Wharton County, Texas to obtain a marriage license. The marriage license indicated that Wife was a “woman.” On August 23, 2008, Husband and Wife were married. After the wedding, Husband and Wife cohabitated as husband and wife. In October 2008, approximately two months after the wedding, Wife underwent “genital reassignment” surgery. The parties disputed whether Husband was aware of Wife’s operation. Husband died on July 3, 2010. On July 15, 2010, Wife filed a petition in California requesting the issuance of a new birth certificate reflecting the change of her sex from male to female. Wife’s petition was granted. After Husband’s death, Mother and Husband’s ex-wife (“Ex-Wife”) sought to have Husband’s marriage to Wife declared void on the ground that it constituted a same sex marriage. Both parties filed competing motions for summary judgment. On May 26, 2011, the trial court granted Mother and ex-Wife’s traditional motions for summary judgment, voiding the marriage between Husband and Wife, and denied Wife’s no evidence motion for summary judgment. Wife appealed. Holding: Reversed. Opinion: The Texas constitution defines a marriage as the union of one man and one woman, thus making same-sex marriages presumptively invalid. Furthermore, the Texas Family Code provides that a marriage between persons of the same sex or a civil union is contrary to the public policy of this state and is void in this state. The Texas Family Code also states that a license may not be issued for the marriage of persons of the same sex and it also provides that an informal marriage may exist only between a man and woman. The COA found that in granting the summary judgment, the trial court declared that Husband and Wife’s marriage was void under Texas law. In doing so, it necessarily found that Wife was a man at the time of Husband’s death such that the marriage was between two men in violation of the Texas Constitution and the Texas Family Code. The COA concluded that this was an error because the question of Wife’s sex was a disputed issue of material fact that precluded Mother and ex-Wife’s traditional motion for summary judgment. Summary judgment was not proper based on Littleton v. Prange, 9 S.W.3d 223, 231 (Tex. App.— San Antonio 1999, pet. denied)(an informal marriage can only exist between a man and a woman). In 2009, the Texas legislature overruled Littleton and amended the Family Code to add a court order related to an applicant’s “sex change” as a form of acceptable proof to establish an applicant’s identity and age, and thus, eligibility, to obtain a marriage license. Tex. Fam. Code Ann. § 2.005(b)(8). Texas law now recognizes that an individual who has had a “sex change” is eligible to marry a person of the opposite sex. Also, there was a fact issue that precluded summary judgment. Wife presented the expert report of Dr. Cole stating that sexuality per se is a complex phenomenon that involves a number of underlying factors, including chromosomes, hormones, sexual anatomy, gender identity, sexual orientation, and sexual expression. The COA held that this report was sufficient to raise a fact issue regarding Wife’s sex.

7 THE FACT THAT THE MARRIAGE BETWEEN HUSBAND AND WIFE WAS VOID WOULD HAVE HAD NO EFFECT ON HUSBAND’S BARGAINING POSITION IN AN MSA BECAUSE THE PARTIES WERE IN A PUTATIVE RATHER THAN MERETRICIOUS RELATIONSHIP. Davis v. Davis, No. 01-12-00701-CV, 2014 WL 890899 (Tex. App.—Houston [1st Dist.], 2014, no. pet.) (mem. op.) (03/06/2014). Facts: Husband filed for divorce from Wife. Before trial, the parties entered into an MSA dividing the property, leaving only the issue of child custody for trial. During the trial, Wife testified that before she married Husband, she was previously married in a religious ceremony to another man (“Mohammad”). Wife testified that she never officially divorced Mohammad because she believed that she and Mohammad were never legally married under Texas law. The trial entered a final decree declaring the marriage between Husband and Wife void, but also incorporating the MSA’s property division. Husband appealed. Holding: Affirmed. Opinion: Husband argued that binding him to the MSA caused him financial injury because he negotiated the MSA under a mistaken belief that he was married and that and that the property at issue was community property, but that had he known the truth—he would have been less inclined to distribute as much property to Wife. However, the fact that the marriage was void would not have improved Husband’s bargaining position because the trial court made no finding that the marriage between Husband and Wife was meretricious. A meretricious relationship occurs when neither party has a good faith belief that they are entering into a legal marital relationship. In a meretricious marriage, each party owns only the property acquired in proportion to the value his (or her) labor contributed to the acquisition of it. A putative marriage, in contrast, is one that is invalid by reason of an existing impediment on the part of one or both spouses; but which was entered into in good faith by either one or both of parties. Putative spouses have same legal rights to community property as legal spouses. Here, Wife testified without contradiction that she did not believe Texas recognized her marriage. Therefore, the parties were putative spouses—thus negating Husband’s fraud claim. Accordingly, Husband’s bargaining position would not have been improved had he been aware that the marriage was void.

DIVORCE

STANDING AND PROCEDURE TIME SPENT BY A TEXAS DOMICILIARY OUTSIDE TEXAS WHILE IN THE SERVICE OF THE ARMED FORCES IS CONSIDERED RESIDENCE IN TEXAS. Vatcher v. Vatcher, 04-12-00821-CV, 2014 WL 60917 (Tex. App.—San Antonio 2014, no pet.) (mem. op.) (01/08/14). Facts: Wife was a German citizen. Husband was a U.S. citizen and active duty military who had designated Texas as his state of residence. Husband and Wife were married in 1994 in Denmark. Bexar County, Texas was the last county in which the parties lived prior to Husband’s assignment to Germany where he, Wife, and their two children lived at the time of the commencement of Husband’s lawsuit. Husband petitioned for divorce in Bexar County, Texas on September 16, 2011. Because the parties were

8 living in Germany on a military installation at the time, Husband served Wife by certified mail at her Army post office (“APO”) address on January 23, 2012. On January 31, 2012, Wife filed a pleading entitled “Plea in Abatement” in which she argued that (1) Husband did not comply with The Hague Convention when he served her at her APO address, and (2) neither she nor Husband had been a domiciliary of Texas for six months preceding the filing of the divorce petition. In her plea in abatement, Wife asked that the cause be dismissed. Following a hearing on Wife’s plea, the trial court denied her requested relief. The trial court later signed the final divorce decree. Wife appealed. Holding: Affirmed. Opinion: Wife also argued that neither she nor Husband met the dual requirement of being (1) a domiciliary of Texas for the six months preceding the filing of Husband’s suit and (2) a resident of Bexar County for the ninety days preceding the filing. A suit for divorce may not be maintained unless at the time the suit was filed, either the petitioner or the respondent had been: (1) a domiciliary of Texas for the preceding six-month period; and (2) a resident of the county in which the suit is filed for the preceding 90-day period. However, the Texas Family Code contemplates that time spent by a Texas domiciliary outside Texas while in the service of the armed forces is considered residence in Texas. Husband claimed Texas as his state of residence, the parties owned property in Bexar County, and the parties resided in Bexar County prior to Husband’s current assignment to Germany. Therefore, the COA held that Husband was a domiciliary of Bexar County, Texas. Although Husband, Wife, and children were stationed in Germany for a number of years when he filed his divorce petition, he was considered a domiciliary of Texas under Section 6.303 because he was in the service of the armed forces at the time. Accordingly, the COA held that the trial court did not err in denying Wife’s jurisdictional challenge based on her contention that the domiciliary requirements of Section 6.301 were not satisfied.

MOTHER PREVAILED ON RESTRICTED APPEAL BECAUSE: (1) ALTHOUGH SHE FAILED TO FILE NOTICE OF RESTRICTED APPEAL WITHIN SIX MONTHS AFTER JUDGMENT, SHE FILED THE NOTICE WITHIN THE 15-DAY GRACE PERIOD; AND (2) THE TRIAL COURT’S CONSENT TO WAIVER OF THE MAKING OF RECORD IN A SAPCR HEARING WITHOUT MOTHER’S APPEARANCE CONSTITUTED ERROR ON THE FACE OF THE RECORD. Wray v. Papp, 434 SW3d 297 (Tex. App.—San Antonio, no pet.) (05/21/2014). Facts: In 2011, Mother and Father separated, and Father moved to Texas with the Child. In August 2012, Father filed for divorce, and Mother filed an answer. In October 2012, Father filed an amended divorce petition and send it to Mother via certified mail notifying her of a final hearing set for December 13, 2012. The record, however, does not contain a copy of the return receipt. Father appeared at the final hearing. Mother, who resided out-of-state, did not appear. That same day, the trial court signed a final divorce decree appointing Father as the Child’s sole managing conservator and ordering Mother to pay child support. Additionally, although Mother was not present at the hearing, the divorce decree recited that the parties waived the making of a record with the consent of the trial court. Mother neither signed nor agreed to the divorce decree. On June 14, 2013, six months and one day after the Court signed the final divorce decree, Mother filed a restricted appeal. Holding: Reversed and remanded Opinion: A party can prevail in a restricted appeal only if: (1) it filed notice of the restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not

9 participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Father argued Mother’s restricted appeal was not timely filed. The Texas Rule of Appellate Procedure 26.1 requires an appealing party to file a restricted appeal within six months after the trial court signs its judgment. An appellate court may extend the time to file a notice of appeal if, within fifteen days after the deadline for filing the notice, the appealing party files a notice of appeal with the trial court and a motion for extension of time. A motion for extension of time is implied when an appellant acting in good faith files a notice of appeal beyond the time allowed by Rule 26.1, but within the fifteen-day grace period. Here, Mother’s explanation that the late filing was due to a mistake in calculation and her inability to timely secure legal counsel was satisfactory. Accordingly, Mother timely filed her notice of appeal. Father also argued that error was not apparent on the face of the record. Texas Family Code § 105.003(c) requires a record to be made in all SAPCRs unless waived by the parties with the consent of the court. Although the final divorce decree recited that the parties waived the making of a record, Mother was neither present nor represented by counsel at the hearing; therefore, the making of the record could not be waived as to Mother. Therefore the trial court erred in consenting to the waiver of the record. The trial court’s error is constituted error on the face of the record because the COA could not evaluate the sufficiency of the evidence to support the trial court’s order without a reporter’s record.

IN A CASE INVOLVING A SAME-SEX PETITION FOR DIVORCE, TRIAL COURT ABUSED ITS DISCRETION BY DENYING A PARTY’S PLEA TO THE JURISDICTION BASED ON THE OPPOSING PARTY’S CONSTITUTIONAL CHALLENGES TO THE TEXAS CONSTITUTION AND VARIOUS PROVISIONS OF THE TFC BECAUSE NEITHER PARTY NOR THE TRIAL COURT PROVIDED NOTICE OF THE CONSTITUTIONAL CHALLENGES TO THE OAG PURSUANT TO TEXAS GOVERNMENT CODE SECTION 402.010. In re State of Texas, No. 04-14-00282-CV, 2014 WL 2493910 (Tex. App.—San Antonio, orig. proceeding) (05/28/2014). Facts: A.L.F.L. and K.L.L., a same-sex couple, married in Washington, D.C. in 2010. Subsequently, the couple returned to Texas and registered their out-of-state marriage license without objection. Additionally, K.L.L. gave birth to a Child conceived through artificial insemination. In February 2014, A.L.F.L. filed for divorce. K.L.L. filed a motion to dismiss the divorce proceeding and a plea to the jurisdiction asserting that Texas laws prohibiting same-sex marriage and the recognition of out-of-state same-sex marriages preclude the trial court’s authority to entertain the divorce action. A.L.F.L. responded by asserting, in part, that Tex. Const. Art. 1, § 32 and related provisions of the TFC were unconstitutional. Following a hearing, the trial court denied K.L.L.’s plea to the jurisdiction and signed an order holding that Tex. Const. Art. 1, § 32 and Texas Family Code Section 6.204 were facially unconstitutional and that Texas Family Code Sections 102.003 and 160.204(a)(1) were unconstitutional as applied. The OAG intervened in the trial court and filed petition for writ of mandamus in the COA arguing that the trial court abused its discretion by issuing a decision invalidating a state constitutional provision and a state statute without providing prior notice to the OAG. Holding: Petition for writ of mandamus conditionally granted Opinion: When a party to litigation files a petition, motion or other pleading challenging the constitutionality of a Texas statute, Texas Government Code Section 402.010(a) requires that the party or the court provide notice and a copy of the pleadings to the OAG “if the attorney general is not a party to or counsel involved in the litigation.” The purpose of the statute is to provide the OAG with the

10 opportunity to be heard on issues important to the laws of the state—the laws the OAG is charged with defending and enforcing. Here, it is undisputed that A.L.F.L.’s pleadings contained constitutional challenges and that neither the parties nor the trial court followed the requirements of Texas Government Code 402.010. Although the statute provides that the failure to provide notice as required does not deprive the trial court of jurisdiction, the trial court’s determination of the constitutional challenges without prior notice to the OAG deprived the State of an important right and constitutes an abuse of discretion for which mandamus relief is available. A.L.F.L. argued, among other things, that the OAG was not entitled to notice because the Texas Court of Criminal Appeals (“CCA”) in Ex Parte Lo held that Texas Government Code Section 402.010 creates an unconstitutional violation of the separation of powers. See 424 S.W.3d 10, 29 (Tex. Crim. App. 2013). Regardless, the CCA’s holding in Ex parte Lo is not binding in a civil proceeding. Accordingly, the State is entitled to mandamus relief. Dissent: The COA should have denied the State mandamus relief for the reasons expressed in Ex parte Lo. In that case, The CCA concluded that Texas Government Code Section 402.010 constitutes an unconstitutional violation of the separation of powers because the entry of final judgment is a core judicial power; it falls within that judicial realm of judicial proceedings so vital to the efficient functioning of a court as to be beyond legislative power and Texas Government Code Section 402.010’s provision prohibiting entry of a final judgment absent 45-days’ notice to the OAG creates a constitutionally intolerable imposition on a court’s power to enter a final judgment. Here, it is undisputed that the trial court heard argument from all parties before regarding the challenged statutes and proceeded to rule on the merits of the constitutional challenge without providing the OAG notice. Regardless, it is not within the judiciary’s purview to accomplish the Legislature’s goals, nor is it the judiciary’s mandate to cooperate with the State’s preferences. While the attorney general does have an interest in defending the state’s laws, the judiciary’s authority to consider and resolve constitutional issues should not take a back seat to legislative interests, nor be hindered by them.

FATHER’S WAIVER OF SERVICE OF THE ORIGINAL PETITION DID NOT ALSO WAIVE HIS RIGHT TO RECEIVE SERVICE OF AMENDED PETITIONS SEEKING MORE ONEROUS RELIEF Garduza v. Castillo, No. 05-13-00377-CV, 2014 WL 2921650 (Tex. App.—Dallas 2014, no pet.) (mem. op.) (06-25-14). Facts: Mother filed a pro se fill-in-the-blank petition for divorce. Mother indicated that she and Father would attempt to reach an agreement on the custody, visitation, and support of their Child, but if they could not, she asked the court to make decisions on those issues. Mother provided Father with a copy of the Original Petition with a two-page waiver, which stated that Father agreed to waive his “right to the issuance and service of citation in this case.” Father executed the waiver, and Mother filed it with the court. Subsequently, Mother hired an attorney who drafted and filed a First Amended Petition for Divorce and, later, a Second Petition for Divorce, each requesting that Mother be appointed as the conservator with the exclusive right to designate the primary residence of the child and that Father be ordered to pay medical and child support for the Child. Neither of the Amended Petitions contained a certificate of service, and neither were served on Father. Mother appeared with her attorney to prove-up the divorce at a default hearing on the trial court’s uncontested prove-up docket. Mother did not provide Father with notice of the hearing. After the hearing, the trial court entered a Final Decree of Divorce and Order Establishing Parentage, in which the trial court granted Mother the exclusive right to designate the Child’s residence, ordered Father to pay child support,

11 found Father in arrears for child support, and reserved to Mother the right to request cash medical support. Father filed a pro se motion for new trial, seeking to “fix the child support” and to “see if [he could] get more days to see [his Child].” The trial court denied the motion as insufficient and advised Father to file a motion to modify the order. Father appealed, arguing that the trial court erred in granting a default judgment against him when he had not received service of either of the amended petitions or a notice of the final hearing. Holding: Reversed and Remanded Opinion: Father signed a waiver that waived his “right to the issuance and service of citation in this case.” Issuance and service of citation is only required for an original petition. Thereafter, TRCP 21a requires service of each amended petition that requests more onerous relief. The language of the waiver could have been drafted to include amended petitions, but it was not. When Mother amended the petition to request more onerous relief, she was obligated under TRCP 21a to serve Father with the amended petition. The failure to do so deprived Father of actual notice of the significant change in requested relief. Because the Texas Supreme Court has held a party may raise the issue of service for the first time on appeal, the COA held that Father was entitled to further proceedings.

TESTIFYING EXPERT’S TESTIMONY AND REPORT WERE PROPERLY EXCLUDED BECAUSE FATHER FAILED TO FULLY COMPLY WITH THE DISCLOSURE REQUIREMENTS OF TRCP 194.2 WITHIN THE DISCOVERY PERIOD In re T.K.D-H., 439 S.W.3d 473 (Tex. App.—San Antonio 2014, no pet.) (07-09-14). Facts: Mother and Father were appointed JMCs of the Child. Mother filed a motion for enforcement for possession violations, and Father filed a modification. On the last day of the discovery period, Father served Mother a supplemental disclosure that included the name and contact information for a testifying expert witness. Approximately six weeks later, the expert completed a Child Custody Evaluation, which Father served on Mother approximately one week after that. During the bench trial, Father attempted to introduce testimony from the expert. The trial court sustained Mother’s objection that the witness was not properly designated and refused to admit the expert’s report or testimony. Father appealed. Holding: Affirmed Opinion: TRCP 194.2 requires, in addition to a testifying expert’s name and contact information, the disclosure of a testifying expert’s impressions and opinions, documents relied upon by the expert, and the expert’s resume and bibliography. The purpose of this rule is to give the opposing party sufficient information to prepare for cross-examination and to prepare rebuttal evidence. Designation of a testifying expert witness requires full compliance with TRCP 194.2. Here, prior to the discovery deadline, Father only provided the expert’s name and contact information. Thus, Father’s disclosure did not comply with TRCP 194.2. Further, upon appellate review of the expert’s report, nothing in the expert’s report indicated that she had made any observations or formed any opinions prior to the discovery deadline. TRCP 193.6 allows for the automatic exclusion of an undesignated witness. Thus, the trial court properly excluded the expert’s testimony.

12 FATHER WAS ENTITLED TO NEW TRIAL BECAUSE TRIAL COURT FAILED TO ENSURE THAT A REPORTER’S RECORD WAS COMPLETED AT TRIAL Thompson v. Thompson, No. 02-13-00292-CV, 2014 WL 3865951 (Tex. App.—Fort Worth 2014, no pet.) (mem. op.) (08-07-14). Facts: Mother filed an original petition for divorce that was properly served on Father. Father did not file an answer or otherwise appear. The trial court granted Mother a default divorce, divided the marital estate, ordered Father to pay child support and back child support, and appointed Mother as the conservator with the exclusive right to designate their Child. No official reporter’s record was made. Father appealed and argued that error was apparent on the face of the record because no reporter’s record was taken at trial. Holding: Reversed and Remanded Opinion: Texas Family Code Section 105.003(c) provides that a record should be made as in civil cases generally unless waived by the parties with the consent of the court. There is reference to “contested” suits in the body of the statute. A party may waive the making of a record by express written agreement or by failing to object to a lack of a record during the hearing. If a party does not appear at a hearing, he is unable to object, and his absence cannot be construed as a waiver to the making of a record. One party cannot waive another party’s right to a record. Without a reporter’s record, a defendant would be unable to obtain a record of the evidence to present to an appellate court for review. Here, Husband was not present at the trial. He did not expressly waive his right to a record, and his failure to answer or appear could not be construed as a waiver. Although Wife had the right to waive the making of a record on her own behalf, she could not waive Husband’s right on his behalf. The trial court erred in failing to ensure that a reporter’s record was completed at trial. Thus, Husband was entitled to a new trial.

DIVORCE

TEMPORARY ORDERS TRIAL COURT ERRED IN MODIFYING AGREED TEMPORARY ORDERS BECAUSE THE MODIFIED ORDER DID NOT ENHANCE THE CHILD’S SAFETY AND WELFARE; MODIFIED ORDER FAILED TO GIVE DUE REGARD TO THE STABILITY OF THE CHILD’S CURRENT LIVING SITUATION. ¶14-5-02. In re Casanova, No. 05-14-01166-CV, 2014 WL 6486127 (Tex. App.—Dallas 2014, orig. proceeding) (mem. op.) (11-20-14). Facts: Mother and Father were married with one Child. The parents separated when the Child was 4 years old. At the time of the separation, Mother moved from Dallas to Tulsa to be with her family. Mother and Father agreed to let the Child finish out her school year in Dallas, and Mother would visit the Child in Dallas on the weekends. The parents further agreed that once that school year ended, they would share custody of the Child. The Child stayed with Mother Monday through Thursday and stayed with Father Thursday through Sunday. The parties agreed to temporary orders that appointed them JMCs and granted Mother the exclusive right to designate the Child’s primary residence in either Dallas or Tulsa. The agreed orders gave both parents the right, subject to agreement with the other parent, to make decision concerning the Child’s education. The temporary orders were to remain in effect until the Child turned 18

13 or was otherwise emancipated. Mother and Father entered a lottery to attempt to obtain a place for the Child to attend a Tulsa magnet school. When the Child was selected, Mother enrolled the Child in kindergarten at the magnet school to begin in the fall of 2014. Subsequently, Father moved to modify the temporary orders to limit the Child’s primary residence to Dallas and to require her to attend school in Dallas. After an evidentiary hearing, the trial court entered an order requiring Mother to move the Child back to Dallas by January 1, 2015. If Mother returned with the Child as ordered, she would retain the exclusive right to designate the primary residence of the Child, and Father would be granted weekend visitation. However, if Mother failed to return with the Child, Father would be granted the exclusive right to designate the Child’s primary residence, and Mother would be given weekend visitation. Mother appealed, arguing that the trial court erred in modifying the agreed temporary orders when there had been no material and substantial change in circumstances. Mother additionally argued that the trial court’s ordered failed to give due consideration for the Child’s safety and welfare and the current living conditions of the parties. Holding: Writ of Mandamus Conditionally Granted Opinion: Chapter 156 of the TFC is predicated on the doctrine of res judicata, and the policy concerns regarding finality of judgments and cessation of custody litigation are not implicated in the same was by modifications of temporary orders. Therefore, Chapter 156 does not apply to modifications of temporary orders. However, per TFC 105.001(a), prior to modifying a temporary order, a court must consider whether the temporary orders are for “the safety and welfare” of the child. Because there was no evidence of a present threat to the Child’s safety or welfare, the COA reviewed the trial court’s order to determine whether the modified order enhanced the Child’s safety or welfare. The trial court was required to measure each change the modified order imposed, particularly the geographic restriction on the Child’s primary residence during the pendency of the divorce, against the yardstick of whether the change was necessary for the Child’s safety and welfare. While a trial court has broad discretion on custody, control, possession, and visitation matters, a trial court may not rely solely on its own ad hoc determinations. Rather, temporary orders must comport with legislatively pronounced public policy guidelines, including providing the child a safe, stable, and nonviolent environment; and encouraging parents to share the rights and duties of raising their child. Further, “[a] court abuses its discretion in imposing temporary orders without due regard for the current living conditions of the parties, especially the stability of the child’s current living situation, and without regard for the financial or practical ability of the parties to comply with the court’s orders.” The Child was happy and thriving under the current custodial situation. Mother sought to retain the status quo of the Child’s residence. For over a year, the Child had a parent in both Tulsa and Dallas, with whom she spent about equal time. The Child had developed a life in Tulsa, was selected to attend a magnet school, participated in extracurricular activities, made local friends, and had frequent contact with extended family in Tulsa. The trial court’s order forced disruption in the Child’s schooling by requiring her to change schools mid-year; gave little or no weight to the positive benefit of the Child’s frequent contact with her extended family; and placed a new burden on Mother by removing Tulsa as a permissible primary residence without showing that the burden was necessary for the safety and welfare of the Child. Mother had a job that contributed to her ability to provide a better standard of living for the child and allowed her to be personally with the Child after school, which should have been a significant consideration in determining whether to alter the agreed temporary orders. The trial court failed to give weight to the parents’ agreement that Tulsa was an appropriate residence for the child. The trial court abused its discretion in substituting its judgment for that of the parents.

14

DIVORCE

ALTERNATIVE DISPUTE RESOLUTION TRIAL COURT ERRED BY BASING FATHER’S CHILD SUPPORT ON A RULE 11 AGREEMENT BECAUSE FATHER HAD WITHDRAWN HIS CONSENT TO THE AGREEMENT BEFORE THE TRIAL COURT RENDERED A FINAL JUDGMENT Woody v. Woody, 429 SW3d 792 (Tex. App.—Houston [14th Dist.], 2014, no. pet.) (04/17/2014). Facts: The trial court entered a final divorce decree in 2008 ordering Father to pay child support to Mother. The decree also awarded Father the guns in Mother’s possession. Subsequently, both parties filed various post-decree motions and petitions including Father’s petition for post-divorce division of property—specifically guns that were allegedly not divided in the decree. During the pendency of these matters, the first child attained the age of majority and was no longer covered by the child support provisions of the decree, so that Father’s child support obligation decreased. In the post-decree filings, Mother sought an increase in this amount and Father sought a decrease. The parties attempted but failed to resolve the child support issue by mediation. However, at a subsequent hearing, the mediator appeared and reported to the trial court that the parties had reached an agreement to leave the child support obligation where it was under the original decree: $771.73 per month. At the same hearing, Father consented to $771.73 per month. Regardless, the trial court set aside the issue and continued with other matters. At a later hearing, Father again requested a reduction in his child support obligation. In its final judgment the trial court ordered Father to pay $771.73 each month in child support stating that “the parties agreed during mediation and announced on the record in open court, that the current child support remain the same.” Father appealed. Holding: Affirmed in part, reversed and remanded in part Opinion: Father argued the trial court erred by approving the parties’ agreement on child support after Father had withdrawn his consent to the agreement. Mother conceded that the parties had not entered into an enforceable mediated settlement agreement, but argued that the parties entered into an enforceable Rule 11 agreement in open court. Parties can enter into an enforceable Rule 11 agreement if it is made in open court and entered of record. If a party revokes its consent to a Rule 11 agreement at any time before the trial court renders judgment in the case, the agreement can no longer simply be “approved” by the court; instead, the enforcement mechanism is through a separate breach of contract action. Here, although the parties entered into an agreement in open court, Father subsequently requested a reduction in child support. Therefore, Father clearly withdrew his consent to that agreement before the trial court rendered judgment. Accordingly, the trial court erred by incorporating the child support agreement into the final judgment.

15 TRIAL COURT IMPLIEDLY FOUND THAT TERMS OF AN INFORMAL SETTLEMENT AGREEMENT WERE JUST AND RIGHT BY GRANTING DIVORCE AND RENDERING JUDGMENT; HUSBAND WAS UNABLE TO REVOKE HIS CONSENT TO THE AGREEMENT AFTER TRIAL COURT RENDERED JUDGMENT Camerio v. Camerio, No. 04-13-00493-CV, 2014 WL 2547607 (Tex. App.—San Antonio 2014, no pet.) (mem. op.) (06-04-14). Facts: Wife filed a petition for divorce. A week later, the parties signed an Agreement for Divorce, which clearly stated that the agreement was not subject to revocation. On that same day, the agreement was filed with the trial court. The agreement provided that Wife was to present the agreement to the trial court as soon as possible, and the parties would coordinate securing a final decree consistent with the agreement. At the prove-up hearing, Wife testified that the parties had reached an agreement, and the terms of the agreement were contained in the Agreement for Divorce on file with the court. Wife stated that she was asking the trial court to grant the divorce, to which the trial court responded, “Granted and rendered.” Wife’s attorney prepared a final Decree of Divorce and filed a motion to enter judgment. The next day, Husband filed a “Revocation of Prior Consent,” attempting to revoke his consent to the Agreement for Divorce. The trial court ruled that the agreement was binding and irrevocable and that the trial court had impliedly found that the terms of the agreement were just and right when it rendered judgment at the prove-up hearing. Husband appealed, arguing the trial court erred in (1) not making an express finding that the agreement was “just and right,” (2) not making an express on-the-record evaluation of the terms of the agreement, (3) not orally entering the terms of the agreement into the record or incorporating the terms by reference prior to rendering judgment, and (4) signing the decree after Husband revoked his consent. Holding: Affirmed Opinion: Texas Family Code Section 6.604 allows parties to a divorce to enter into an informal settlement agreement, and the terms of such an agreement will be binding on the parties if certain conditions are met. If the court determines that the terms of the agreement are just and right, the court may set forth the agreement in full or incorporate the agreement in a final decree. If the court determines that the terms are not just and right, the court may request that the parties submit a revised agreement. Here, it was undisputed that the agreement met the requirements of Section 6.604. Nothing in Section 6.604 requires the court to evaluate the terms of the agreement on the record or to expressly find the terms to be just and right. The trial court stated on the record that Wife’s request to grant the divorce was “Granted and rendered.” The trial court clearly rendered judgment based on the agreement at the prove-up hearing, and therefore, the trial court impliedly found that the terms of the agreement were just and right. Further, a party may only withdraw consent to an agreement before judgment is rendered. The trial court rendered judgment at the time it orally responded to Wife that her request was “Granted and rendered.” Husband’s was unable to effectively revoke his consent nearly two months later.

16

DIVORCE

DIVISION OF PROPERTY A COMPANY’S GOODWILL THAT EXISTS SEPARATE AND APART FROM A PROFESSIONAL’S PERSONAL SKILLS, ABILITY, AND REPUTATION IS DIVISIBLE UPON DIVORCE. Hill v. Hill, 02-12-00332-CV, 2014 WL 92795 (Tex. App.—Fort Worth 2014, no pet.) (mem. op.) (01/09/14). Facts: Husband, a non-CPA, became a Class B principal in KPMG, LLP. shortly after he married Wife. His partnership agreement indicated that each principal’s relationship to the firm was intended to be that of a partner in a partnership with some limitations. One of the agreement’s limitations in the definition of “principals” was that principals “shall not contribute to or have any interest in the capital of the Firm other than their contributions to their Deposit Accounts, which shall constitute loans to the Firm that shall be subordinated to other debts of the Firm as and to the extent provided in the By-laws.” The agreement went on to say that when a member is “separate,” the balance of his capital or deposit account, drawing account, and subordinated loan account “shall be liquidated and distributed to” him in exchange for his interest in the firm, and any amounts that he owes the firm at the time of separation “shall be paid prior to or simultaneously with payment” for the above accounts.” Finally, the agreement noted that “if you cease to be a member of KPMG, you will be entitled only to the compensation that has been earned and accrued through the date you cease to be a member of the firm.” Wife’s valuation expert testified that the fair market value of Husband’s partnership interest was $2.4 million. KPMG’s national director said that the percentage of Husband’s capital or deposit account did not represent any equity or ownership interest in the partnership. The national director also said that in order to enter KPMG as a principal, Husband had to pay into the capital account, that Husband had secured a loan through a third-party lender to fund $715,000.00 that went into the capital account, and that Husband’s loan balance for the account was $700,900.00. Husband’s expert testified that the value of Husband’s interest was $14,100.00, the value of the capital account less the loan against it. Husband’s expert also testified about all of the substantive and procedural inaccuracies in the valuation prepared by Wife’s expert. Wife’s expert himself also admitted to these inaccuracies. The trial court found that the partnership had a value of $14,000.00 and awarded Husband all interest he owned in KPMG, including his capital account and the loan against his capital account. Wife appealed. Holding: Affirmed. Opinion: Goodwill that exists separate and apart from a professional’s personal skills, ability, and reputation is divisible upon divorce. To determine whether goodwill that is subject to division upon divorce attaches to a professional practice, first, goodwill must be determined to exist independently of the personal ability of the professional spouse, and then if such goodwill is found to exist, the court must determine whether that goodwill has a commercial value in which the community estate is entitled to share. While a partnership agreement is only a factor to consider in the present value of the partnership interest, the questions of whether a business possesses goodwill and if so, what the value of that goodwill consists of, are fact questions for the trier of fact. Based on the evidence presented to the trial court, if it determined that Wife’s expert lacked credibility and chose to believe the testimony of Husband’s expert and the partnership’s national director, then it could have reasonably reached the conclusion that the partnership interest was worth $14,100.00, and that commercial goodwill, if any, was inaccessible at the time of the divorce based on the status of

17 Husband’s loan against his capital account (even though it may have value someday in the post-divorce future.

CHARACTERIZATION OF PROPERTY IN INVENTORY AND ALWAYS CONSTITUTE A JUDICIAL ADMISSION. LOAN HUSBAND’S SEPARATE PROPERTY RESIDENCE AFTER HUSBAND AND WIFE DOES NOT CHANGE RESIDENCE’S CHARACTERIZAION.

APPRAISAL DOES NOT TAKEN OUT AGAINST MARRIAGE BY BOTH SEPARATE PROPERTY

Rivera v. Hernandez, 441 S.W.3d 413 (Tex. App.—El Paso 2014, pet. filed 10/23) (1/15/14). Facts: Husband filed his original petition for divorce and pled that he had separate property. Wife filed her inventory on November 4, 2010, and her proposed property division on May 2, 2011. Attached to her proposed property division was a signed copy of Husband’s inventory, which he signed on September 30, 2010, but did not file with the trial court clerk. Husband’s inventory mistakenly identified the real estate in issue as community property and stated that he owned no separate property. Husband filed his proposed property division on May 10, 2011, alleging that the Sun Park home was his separate property (with minimum reimbursement to Wife). At trial, evidence was presented that the Sun Park was the homestead and had been used during their marriage as collateral for loans to both Husband and Wife. Husband was cross-examined concerning his inventory, which characterized the property as belonging to the community estate. Husband’s attorney advised the trial court this was a mistake, and the trial court allowed Husband to amend his inventory and appraisal. The trial court’s final judgment awarded Wife the Sun Park home, and Husband appealed. Holding: Reversed and remanded. Opinion: On appeal, Wife argued that Husband’s sworn inventory constituted a judicial admission that the Sun Park property was community property. A judicial admission establishes the issue in dispute as a matter of law on behalf of the adversary of the one making such admission. The COA found that the trial court did not find that the inventory constituted a judicial admission, but rather that the inventory simply characterized the property as community property. The trial court also took judicial notice of the pleadings, but did not take judicial notice of the inventory, which was not filed or admitted into evidence. Taking all of these factors into consideration, the COA held that there was no cognizable judicial admission when (1) a litigant pleads separate property; (2) a litigant tenders requests for admission related to a claim for separate property; (3) a litigant discloses during discovery the documentary evidence to support the claim of separate property; (4) the party opposite files responsive pleadings concerning economic contribution and equitable reimbursement demonstrating a recognition of a separate property claim; (5) the litigant seeks leave of court to amend an inventory to correct an error; (6) the trial court grants leave to amend an inventory; and (7) there is no objection to the admission of contradictory evidence. The COA found that the trial court did err in finding that no other form of tracing or clear and convincing evidence was presented to overcome the community presumption. The evidence was not limited to Husband's testimony of the time and circumstances surrounding the purchase of the land. The deed of trust and release of lien were introduced into evidence without objection. That documentation establishes as a matter of law that the property was purchased before marriage and owned by Husband at the time of marriage. Furthermore, the property’s characterization as the homestead and its use as collateral for loans taken out by Husband and Wife did not divest the property of its status as separate property. Because Husband had established his separate property as a matter of law and had been divested of it, the COA reversed and remanded the case.

18

HUSBAND FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT DEBT ON MOBILE HOME WAS INCURRED PRIOR TO MARRIAGE AND WAS PARTLY OWED BY WIFE AS HER SEPARATE OBLIGATION Richardson v. Richardson, 424 S.W.3d 691 (Tex. App.—El Paso 2014, no pet.) (02-05-14) Facts: In contemplation of their marriage, Husband and Wife purchased a mobile home. However, they did not take possession of the mobile home or start paying the mortgage until after they were married. The parties were married on November 29, 2002. Husband filed for divorce on February 16, 2011. After settling many issues through mediation, a final divorce hearing was conducted on August 3, 2011 solely on financial issues concerning the debt of the parties. The trial court signed the divorce decree on November 17, 2011, which awarded Husband the mobile home as his sole and separate property and ordered him to pay the balance due on the promissory note given as part of the purchase price on the mobile home. Husband appealed. Holding: Affirmed. Opinion: Husband argued that the trial court erred in ordering him to pay the entire mortgage loan debt on the mobile home awarded to him as his separate property in the divorce decree because a portion of the loan was Wife’s separate property debt prior to the marriage. In Texas, property possessed by either spouse during or on dissolution of marriage is presumed to be community property, absent clear and convincing evidence to the contrary. The community property presumption applies to both assets and liabilities. An obligation to pay that arises before marriage should be treated as the incurring spouse’s separate debt and cannot be assigned to the non-incurring spouse. The record is devoid of any evidence establishing the origin of the funds used to make the down payment as separate property. In fact, sufficient evidence was presented at trial that allowed the trial court to conclude that the mortgage debt was a community liability.

TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REFUSING TO GRANT WIFE AN OFFSET FOR THE COMMUNITY’S PAYMENT OF COMMUNITY EXPENSES AGAINST HUSBAND’S SEPARATE PROPERTY REIMBURSEMENT AWARD. IMOMO O’Brien, 436 SW3d 78 (Tex. App.—Houston [14th Dist.] 2014, no. pet.) (05/06/2014). Facts: Following a trial, the trial court found that Wife owned as her separate property certain real property where the couple resided during the marriage and that Husband had used $24,965.51 of his separate property to pay Wife’s debt on her separate property. Accordingly, the trial court rendered a final decree granting Husband $24,965.51 in reimbursement for the payment of Wife’s debt. The trial court denied Wife’s various claims for an offset against the reimbursement. Wife appealed. Holding: Affirmed Opinion: Contending that the community estate’s payment of $8,395 in rental fees for a storage unit containing Husband’s separate property constituted an “unsecured liability” of Husband’s separate estate, Wife argued that the trial court erred in failing to credit her for the community’s payments. A claim for reimbursement arises when the funds or assets of one estate are used to benefit and enhance another estate without itself receiving some benefit; it is generally a matter of discretion for the trial court. Texas Family

19 Code Section 3.402(a)(1) provides that a claim for reimbursement includes payment by one marital estate of the unsecured liabilities of another marital estate. Here, Wife provided no authority or analysis supporting her assertion that monthly storage fees paid to house separate property during marriage is an “unsecured liability” of Husband’s separate estate or that such storage did not benefit the community. Moreover, the trial court clearly rejected Wife’s characterization of the storage unit’s contents when it concluded that community funds were used to pay community expenses.

TRIAL COURT ABUSED ITS DISCRETION BY CHARACTERIZING HUSBAND’S LUMPSUM COMPENSATION FOR WRONGFUL CONVICTION AS LOST WAGES AND AWARDING WIFE A PORTION AS COMMUNITY PROPERTY. Phillips v. Tucker, 442 SW3d 543 (Tex. App.—Dallas 2014, pet. filed 07/28) (05/12/2014). Facts: Husband and Wife married in 1980. Two years later, Husband was arrested, convicted, and ultimately incarcerated for certain criminal offenses. The parties divorced in 1992, while Husband was still in prison. Fifteen years later, Phillips was released from prison on parole after spending almost twenty-five years in prison. The next year, sixteen years after the divorce, Husband was exonerated by DNA testing. Thereafter, Husband applied for and received compensation through the administrative procedure set forth under Texas Civil Practice and Remedies Code Section 103.001–.154 also known as the Tim Cole Act. In February 2010, Wife sued Husband for a portion of the compensation he received under the Act alleging the amount included lost wages related to Husband’s first nine and three quarters years in prison before their divorce and as such constituted community property to which she was entitled her portion. The trial court agreed with Wife and rendered judgment in her favor for $114,459.50 plus attorney’s fees and expenses. Husband appealed arguing that his compensation under the Act did not include any amount for lost wages during the period of his wrongful incarceration. Holding: Reversed and rendered Opinion: The Tim Cole Act provides a person who has been wrongfully incarcerated with an administrative remedy to seek monetary compensation from the State for the period of wrongful imprisonment. The compensation scheme under the Act is essentially liquidated damages for “the wrong done in the State’s name” based on time served. The amount of the lump-sum compensation owed to an eligible exoneree is determined by multiplying $80,000 times the number of years served in prison, expressed as a fraction to reflect partial years. Thus, according to the plain language of the statute, the lump-sum compensation awarded under the Act’s administrative remedy is based solely on the period of wrongful incarceration and is not based on, or related to, any particular exoneree’s economic loss or lost wages while in prison. The conclusion that the statutory lump-sum compensation does not include an amount for lost wages is also supported the legislative history. Prior to enactment of the Tim Cole Act, the wrongful imprisonment statute allowed an eligible exoneree to choose between an administrative remedy entitling the exoneree to $50,000 for each year imprisoned or filing a lawsuit against the State for economic damages, including lost wages. The Act abolished the cause of action for damages leaving only the administrative remedy and increased the amount of lump-sum compensation from $50,000 to $80,000 per year of imprisonment. Nothing in the legislative history indicates the increase in the lump-sum compensation was for lost wages.

20 BECAUSE THE TERM “BANK” ACCOUNT AS USED IN A PREMARITAL AGREEMENT IS A LEGALLY SEPARATE AND DISTINCT ENTITY FROM A “BROKERAGE” ACCOUNT, THE TRIAL COURT ERRED BY CHARACTERIZING PROCEEDS FROM THE SALE OF HUSBAND’S SEPARATE PROPERTY BUSINESS THAT WERE DEPOSITED INTO A BROKERAGE ACCOUNT AS COMMUNITY PROPERTY. IMOMO McNelly, 2014 WL 2039855 (Tex. App.—Houston [14th Dist.], pet. filed 09/19) (05/15/2014). Facts: Prior to Husband and Wife’s marriage, Husband owned and operated a business. Husband and Wife executed a premarital agreement in July 2008. The premarital agreement provided that separate property funds and proceeds from the sale of separate property would remain separate property but also provided that those funds and proceeds “may be deposited into any bank account styled in their joint names” and that such monies “shall become and remain community property.” The parties married later that same month. In September 2008 Husband sold his interest in the business for $1.3 million and later deposited $100,000 of the sale proceeds into two joint bank accounts and the remaining $1.2 million two separate joint brokerage accounts. Wife filed for divorce in 2010. Following the trial, the trial court found that Husband’s owned and operated his business prior to the marriage, making his interest in the business Husband’s separate property. However, the trial court concluded that Husband converted all $1.3 million in his separate property proceeds from the sale of his business into community property by depositing the proceeds into joint accounts and comingling the proceeds with community funds. Husband appealed, arguing that the trial court divested him of his separate property when it characterized the $1.2 million deposited into joint “brokerage” accounts as community property. Holding: Reversed in part and remanded in part Opinion: Under the plain language of the premarital agreement, the couple clearly intended that the fruits of the business, such as the earnings that might result from the sale of the business, should remain Husband’s separate property. Resolution of the issue therefore turns on the meaning of “bank” in the premarital agreement. Dictionaries generally define “bank” as a financial establishment for the deposit, loan, exchange, or issue of money and for the transmission of funds. In contrast, “broker” is defined as an agent who acts as an intermediary or negotiator, especially between prospective buyers and sellers; a person employed to make bargains and contracts between other persons in matters of trade, commerce, or navigation. These definitions illustrate that banks and brokers are distinguishable, particularly with respect to the scope of their respective services; banks tend to offer a broader spectrum of financial services than brokerage firms. Additionally, federal and state statutory definitions, including those under the U.S. Code Title 15 (Commerce and Trade), the Texas Finance Code, and the Texas Business and Commercial Code, illustrate that banks and brokerage firms generally fall under distinct statutory and regulatory regimes. Finally, federal case law suggests that mere overlap in the services provided by a nonbanking entity, such as a brokerage firm, with the services provided by a bank does not transform the nonbanking entity into a bank. Here, the premarital agreement states that any separate-property funds deposited into joint “bank” accounts would become community property. The contested $1.2 million was into joint “brokerage” accounts not joint “bank” accounts. Therefore, that $1.2 million did not become community property. Accordingly, the trial court erred when, based on its erroneous interpretation premarital agreement, it characterized as community property the $1.2 million from the sale of Husband’s separate property business.

21 TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REFUSING TO DIVIDE COMMUNITY PROPERTY ALLEGEDLY NOT PREVIOUSLY DIVIDED BY THE DIVORCE DECREE BECAUSE WIFE FAILED TO PROVE WHETHER HUSBAND’S INCOME UNDER DISPUTE WAS STILL ON HAND AT THE TIME OF THE DIVORCE. IMOMO Ford, 435 SW3d 347 (Tex. App.—Texarkana, no pet.) (05/22/2014). Facts: After a 31-year marriage, and after having been separated for a little over three years, Husband and Wife divorced in April 2013. Two months later, Wife filed a petition for forfeiture alleging that Husband failed to disclose to her all his Social Security and pension income for the three years immediately preceding the divorce. At a hearing, Wife requested a division of the disputed income, or alternatively, a cancelation of a $25,000 judgment and lien awarded in Husband’s favor in the divorce decree as part of the marital property division. The trial court denied Wife’s requested relief finding that no pleadings supported cancelation of the $25,000 judgment and that it could not divide property that it was unsure even existed at the time of divorce or at the time of Wife’s forfeiture petition. Wife appealed. Holding: Affirmed Opinion: Texas Family Code §§ 9.201 and 9.203 provide a procedure for the division of community property not previously divided by the divorce decree. Here, Wife provided in her forfeiture petition an IRS tax transcript evidencing Husband’s receipt of a taxable pension and social security benefits for tax years 2010-2012. Husband, however, testified that he paid down $7,000.00 in tax penalties by applying the previous two year’s refunds and that approximately $2,800.00 in tax penalties remained unpaid. Husband also testified without contradiction that during the three years the parties were separated, he continually supported Wife, paid some of her debts, and paid to have her truck repaired. Wife provided no evidence whether any of the income Husband received during the parties’ threeyear separation was still on hand at the time of their divorce or the filing of Wife’s forfeiture petition. With no evidence any of the income was still on hand at the time of the divorce, there was nothing establishing the existence of property not disposed of in the divorce decree, as contemplated by Texas Family Code § 9.023. Additionally, there was no basis to support any forgiveness of the debt awarded to Husband as secured by a lien imposed on the real property set aside to Wife in the divorce decree. [In dicta, the COA noted that Wife failed to avail herself of relief under Texas Family Code § 7.009. Texas Family Code § 7.009 provides a vehicle for a trial court to reconstitute a marital estate upon a finding that a spouse has committed actual or constructive fraud on the community.]

THE TRIAL COURT ERRED BY IMPOSING AN EQUITABLE LIEN TO SECURE THE REIMBURSEMENT AWARD AGAINST ALL OF WIFE’S SEPARATE PROPERTY BECAUSE THE TEXAS CONSTITUTION PROHIBITED THE LIEN SPECIFICALLY AGAINST WIFE’S SEPARATE PROPERTY HOMESTEAD AND BECAUSE NONE OF HER SEPARATE PROPERTY WAS BENEFITED BY A CONTRIBUTION FROM HUSBAND’S SEPARATE PROPERTY. Hinton v. Burns, 433 SW3d 189 (Tex. App.—Dallas, no pet.) (05/22/2014). Facts: Husband and Wife married in 2009. Each party brought separate property into the marriage—Wife owned a home in Celina Texas prior to the marriage, and Husband owned several businesses and inherited approximately $288,000 from his family’s estate. The parties formed an LLC during the marriage with each owning a 50% interest. In 2010, the LLC purchased real property (the “Ranch”) valued at $307,428 at the time of purchase. Wife filed for divorce in April 2012 and took up residence in her Celina home as her homestead. Husband counter-sued and sought reimbursement for $117,319.77 in

22 contributions made from his separate property to the community estate and for $66,480 loaned to the community from Husband’s separate property businesses. At trial, Husband testified that during the marriage he contributed his entire inheritance to the community and that the community would periodically borrow money from his separate property business entities and that said monies were deposited into the community’s checking account and used for community expenses. At the trial’s conclusion, the trial court awarded the LLC, the Ranch, and the associated debt to Husband. The trial court also confirmed the Celina home as Wife’s separate property. Additionally, the trial court found that Husband’s separate estate was entitled to $57,000 reimbursement from the community estate for Husband’s separate property contributions. The trial court awarded judgment in that amount to Husband and also imposed an equitable lien extending to “all property that [Wife] owns,” including Wife’s Celina homestead and her other separate property. The divorce decree also provided that “to the extent legally permitted, [Husband] is granted a possessory lien on these assets until the judgment is paid in full.” Wife appealed. Holding: Affirmed as modified Opinion: Wife argued that the trial court erred by imposing a lien on her separate property to secure the reimbursement award contending that the imposition of the entire lien was error, and in particular, the lien imposed on her separate property homestead. Husband argued that the equitable lien was appropriate because the final decree of divorce grants the lien only “to the extent legally permitted.” A lien on a separate property homestead is invalid where the lien does not fit in any category allowed by Texas Constitution. Additionally, although the TFC previously provided that a contribution claim could be secured by an equitable lien “on the entirety of a spouse’s property in the marital estate and is not limited to the item of property that benefited from an economic contribution,” that section was repealed in 2009. Texas Family Code Section 3.406(a) now provides that “[o]n dissolution of a marriage, the court may impose an equitable lien on the property of a benefited marital estate to secure a claim for reimbursement against that property by a contributing marital estate.” Although the court in Dailey v. Dailey, 02-12-00097-CV, 2013 WL 105667 (Tex. App.—Fort Worth Jan. 10, 2013, no pet.) has stated that “a trial court may impose equitable liens on one spouse’s separate property as a means for securing the discharge of payments owed by one spouse to the other” that COA did not cite or discuss Texas Family Code Section 3.406(a). Here, because the equitable lien does not fit any of the allowed categories under the Texas Constitution, it is invalid specifically as to Wife’s separate property homestead. Moreover, there is no evidence that any of Wife’s separate property was benefited by a contribution from Husband’s separate property. Therefore, the trial court erred by extending the equitable lien to Wife’s separate property. Accordingly, the trial court’s judgment is modified to delete the imposition of the equitable lien on Wife’s homestead and separate property.

HUSBAND’S MOTHER COULD NOT BE AWARDED A PORTION OF HUSBAND’S AND WIFE’S COMMUNITY ESTATE IN DIVORCE; REIMBURSEMENT AND CONTRIBUTION CLAIMS CANNOT BE ASSERTED BY THIRD-PARTIES In re Marriage of Allen, 10-12-00179-CV, 2014 WL 3928800 (Tex. App.—Waco 2014, no pet.) (mem. op.) (06-26-14). Facts: During the marriage, Husband and Wife decided to buy a house. However, because Wife had a low credit rating, the house was purchased in the names of Husband and his mother. The deed named Husband and his mother as grantees, and the two of them each signed the note to obtain the mortgage. When the parties separated, Husband moved out. Husband’s mother had contributed to mortgage and utility payments both during the marriage and after the couple separated. Husband’s mother intervened in

23 the divorce proceedings seeking a partition of the house and asserted claims for contribution and reimbursement. During trial, Wife testified that she believed that Wife, Husband, and Husband’s mother each owned a one-third interest in the house. However, on appeal, Wife argued that the community estate had a 100% interest in the house. Husband and his mother both argued at trial and on appeal that the community and Husband’s mother each had a one-half interest in the house. At trial Husband testified that it would be fair to award the house to his mother. At the conclusion of the bench trial, the trial court found that the community and Husband’s mother each had a one-half interest in the house, but awarded the house to Husband’s mother. The trial court ordered Wife to vacate the house by the end of the month. Wife appealed. Holding: Reversed and Remanded Opinion: While a spouse can make a claim for reimbursement and contribution against the other spouse, a third party may not assert such a claim. Because the house was purchased during marriage, the trial court correctly found that the community had a one-half interest in the house. The trial court also correctly found Husband’s mother also had a one-half interest in the house because her name was on the deed and because she was liable for the mortgage. However, the trial court had no authority to award the parties’ community interest in the house to Husband’s mother. The trial court could have awarded the community’s interest in the house either to Husband or to Wife.

DIVISION OF COMMUNITY ESTATE REMANDED FOR A NEW PROPERTY DIVISION BECAUSE TRIAL COURT FAILED TO PROPERLY ACCOUNT FOR FUNDS PREVIOUSLY DISTRIBUTED TO WIFE AS HER SEPARATE PROPERTY THROUGH A PRE-DIVORCE SETTLEMENT AGREEMENT. WIFE’S ATTACK OF EXPERT’S VALUATION OF BUSINESS OVERRULED BECAUSE WIFE FAILED TO PRESERVE BY MAKING A DAUBERT CHALLENGE AT TRIAL. Reisler v. Reisler, 439 S.W.3d 615 (Tex. App.—Dallas 2014, no pet.) (08-05-14). Facts: Husband filed for divorce, and Wife filed a counter-petition for divorce. Both parties sought a disproportionate share of the marital estate. The parties entered a pre-divorce settlement agreement dividing a Charles Schwab account in half and assigning one-half of the account to each party, as his or her separate property. Wife transferred her share from a joint account into a separate Charles Schwab account. Later, she transferred all the funds from her Charles Schwab account to a new, separate Merrill Lynch account. This money movement was clearly established on the record. In its findings of facts, the trial court noted that the original Charles Schwab account was divided between the parties in their predivorce settlement agreement. However, the trial court also identified as a part of the community estate Wife’s new Merrill Lynch account, which contained her portion of the pre-divorce settlement. When dividing the community estate, the trial court included both sums in its calculations. Wife appealed, arguing that the trial court made calculation errors in determining the division of the community estate. Wife argued that although the trial court attempted to make a 50/50 division of the community estate, it actually awarded nearly 70% to Husband because it accounted for Wife’s portion of the pre-divorce settlement twice. Wife also challenged Husband’s expert’s use of an out-of-date industry risk premium in valuing the parties’ business. Holding: Affirmed in Part; Reversed and Remanded in Part Opinion: Wife established that the funds in her Merrill Lynch account were the funds from the predivorce settlement. The trial court noted the pre-divorce settlement divided a community bank account and awarded half of the total funds to each party as his or her separate property. However, the trial court

24 also “awarded” Wife the Merrill Lynch account that she opened using those separate funds. The trial court did not treat Husband’s account, which held his portion of the pre-divorce settlement, in the same manner as it treated Wife’s account. Therefore, the trial court erred in its property division because it erroneously accounted for the same funds twice in its property division. Because the COA could not modify the property division, the COA reversed and remanded the entire community estate for a new division by the trial court. The COA affirmed the portion of the final decree dissolving the parties’ marriage. The COA overruled Wife’s argument regarding Husband’s expert because Wife failed to make a Daubert challenge at trial and therefore did not preserve the error.

THERE WAS NO BASIS FOR A FINDING THAT WIFE’S PROPOSED DIVISION WAS “JUST AND RIGHT” BECAUSE WIFE FAILED TO PRESENT ANY EVIDENCE AS TO THE NATURE OR VALUE OF THE COMMUNITY ESTATE In re Marriage of Bradshaw, No. 12-14-00056-CV, 2014 WL 3940092 (Tex. App.—Tyler 2014, no pet.) (mem. op.) (08-13-14). Facts: Wife filed an original petition for divorce and asked the court to divide the community estate in a manner deemed to be just and right. Husband filed an answer and received notice of the trial. However, at the time of trial, Husband was confined in jail, and the jail’s officials refused to transport Husband to the courthouse for the trial. At trial, Wife was the only witness. She testified that the marriage had become insupportable, asked the trial court to grant the divorce, and presented the trial court with her proposed property division. The proposed decree awarded all the community property in Wife’s possession to her and all community property in Husband’s possession to him. Wife testified that she believed this division to be fair and equitable. The trial court granted the divorce, awarded the property division as proposed, and found the proposed division to be fair and equitable. However, the final decree, in addition to the community property division, also awarded a house and real property to Wife as her separate property. Husband appealed, arguing that there was insufficient evidence to support the trial court division of the community estate or to support the trial court’s award of separate property to Wife. Holding: Reversed and Remanded Opinion: A trial court must have an evidentiary basis for its findings. Even if a respondent fails to appear, a petitioner must still present evidence to support the material allegations in the petition. Here, Wife presented no evidence of the assets of the community estate or of the value of those assets. Wife presented no evidence regarding the percentage of the community estate that each party would receive under her proposed division of the community estate. Further, Wife produced no evidence that any property was her separate property, much less, clear and convincing evidence to overcome the community property presumption. The trial court clearly erred in holding that Wife’s proposed distribution of the community estate was fair and just and in awarding any property to Wife as her separate property.

25 WIFE’S COMMUNITY INTEREST IN HUSBAND’S MILITARY RETIREMENT DEFINED BY BERRY AND THE USFSPA; DIVORCE DECREE’S FAILURE TO SPECIFY DENOMINATOR IN DIVORCE DECREE DID NOT INDICATE AN INTENT NOT TO FOLLOW BERRY. Douglas v. Douglas, ___ S.W.3d ___, 2014 WL 6090420, 08-12-00259-CV (Tex. App.—El Paso 2014, no pet. h.) (11-14-14). Facts: Husband and Wife divorced after about 15 years of marriage. At the time of the divorce, Husband was a Captain in the U.S. Air Force with 150 months of creditable service. The divorce decree awarded Wife her community interest in Husband’s military retirement. The decree specifically provided that she was entitled to “one-half (1/2) times a fraction of which the numerator (150) is the number of months that the parties were married during which time [Husband] had credible time in the United States Air Force toward retirement, prior to the date of divorce (150 months), and the denominator of which is the number of months that [Husband] shall have of credible service toward his military retirement, times gross retirement benefits receivable, if [Husband] were eligible for retirement at the time of the divorce, at his present rank of Captain.” After the divorce, Husband remained in the Air Force for another 177 months before retiring. After his retirement, Wife applied to the Defense Finance and Accounting Service (DFAS) for her share and included a certified copy of the decree. DFAS notified Wife that it could not approve her application because the language was faulty. It advised Wife that the deficiency could be remedied by a clarifying order that expressed her interest as a fixed sum or a percentage interest. Wife moved to clarify the decree. After a hearing, the trial court issued a clarifying order providing that Wife was entitled to 4.096% of the disposable military retired pay. In addition, the trial court found that Husband was in arrears for almost $10,000. In its findings of facts and conclusions of law, the trial court did not clearly explain how it arrived at 4.096%. Wife appealed, and Husband cross-appealed. Both argued that the trial court used the wrong formula to calculate the percentage. Under Wife’s formula, she urged that she was entitled to 1/2 of Husband’s hypothetical gross retirement pay at the time of the divorce, or $1,404.03. Under Husband’s formula, he argued that Wife was entitled to 1.7421% of his retired pay at the time of his retirement, or $134.48. Husband argued that by failing to specify the denominator in the decree, which was a known value at that time, the trial court had not intended to use the Berry formula to calculate Wife’s percentage interest. Husband contested that Wife’s interest

was governed by the fraction formula established in Taggert, and the value of her interest was governed by Berry. Husband additionally argued that the trial court erred in finding him in arrears and in failing to award him attorney’s fees. Wife’s formula:

Husband’s formula:

50% x

50% x

150 months of service during marriage 150 months of service credited toward marriage 150 months of service during marriage 372 months of service credited toward marriage

x gross retirement benefits receivable

x 23.7500%

x $2808.60 (base pay of Captain at divorce)

$7,719.00 (total monthly amount received based on 372 months of service)

Holding: Affirmed in Part; Reversed and Rendered in Part; Reversed and Remanded in Part Opinion: Under the Berry formula, a non-member spouse’s community interest in the member spouse’s retirement plan is determined by dividing the number of months married (the numerator) by the number of months employed under the plan at the time of divorce (Berry denominator), and the value of the interest is determined as of the date of divorce, rather than at retirement. Contrarily, under the former Taggert formula, the community interest is determined by dividing the number of months married (the numerator) by the total number of months employed at retirement (Taggert denominator).

26 Here, the trial court failed to specify the value of the denominator; however, this failure did not mean that the trial court did not intend to use the Berry formula. Further, Husband produced no support for his contention that a hybrid formula should be used. Moreover, the formula proffered by Husband would have impermissibly diluted Wife’s community interest in the retirement plan. Under to Uniformed Services Former Spouses Protection Act (USFSPA), which was in effect at the time of the Parties’ divorce, Husband’s hypothetical gross pay was to be computed by multiplying his retired pay base at the time of divorce by the retired pay multiplier, which is 2.5% of his creditable service. The Parties agreed that Husband’s retired pay base at the time of divorce was $2,808.60. At the time of divorce, Husband had 150 months, or 12.5 years, of creditable service. Thus, Husband’s retired pay multiplier was .3125 (2.5% x 12.5), and his monthly hypothetical gross pay was $877.50 (.3125 x $2,808.60). The COA noted Husband’s argument that his hypothetical gross retired pay should have been calculated under the provisions of the Temporary Early Retirement Authority (TERA) was without merit because TERA was neither in effect at the time of the Parties’ divorce, nor would Husband have been entitled for early retirement under TERA had it been in effect. To be enforceable under USFSPA, an award of an interest in military retirement must be expressed as either a fixed dollar amount or as a percentage of disposable retired pay. To convert Wife’s award into a fraction, the COA multiplied her 50% community interest by the hypothetical gross pay ($877.50) divided by Husband’s retired gross pay ($7,719.00). Therefore, Wife was entitled to 5.68078766679622 percent of Husband’s disposable retired pay. Further, because the trial court’s clarifying order was not rendered until 41 months after Husband retired, Wife was entitled to arrearages for any payments not made by Husband during that time period. Finally, Husband was not entitled to attorney’s fees because he was not the prevailing party.

TRIAL COURT IMPROPERLY DIVESTED HUSBAND OF HIS SEPARATE PROPERTY HOME BY AWARDING WIFE A ONE-HALF INTEREST IN THE HOME’S EQUITY. Rivas v. Rivas, ___ S.W.3d ___, 2014 WL 6090415, 08-12-00228-CV (Tex. App.—El Paso 2014, no pet. h.) (11-14-14). Facts: Husband inherited a home from his father. The home had been paid for in full prior to Husband’s father’s death. During their divorce proceedings, Wife testified that she had no legal interest in Husband’s home. Wife sought reimbursement for, inter alia, improvements and waste of community assets, and she asked the trial court to impose an equitable lien on Husband’s home to secure the reimbursement claims. The trial court denied these claims for reimbursement. However, despite finding that the home was Husband’s separate estate, the trial court awarded Wife a one-half interest in the equity of the home and ordered Husband to pay Wife her share of the equity within ninety days. Husband appealed, arguing the trial court improperly divested him of his separate property. Holding: Reversed and Remanded Opinion: Husband’s home was established as his separate property as a matter of law. He introduced evidence establishing that the home had no mortgage and was inherited from his father. Wife testified that she had no legal interest in the home. The trial court clearly erred when it divested Husband of his separate property and awarded Wife a one-half interest in the home’s value.

27 HUSBAND FAILED TO SHOW THAT TRIAL COURT’S CHARACTERIZATION ERROR HAD MORE THAN A DE MINIMUS IMPACT ON A JUST AND RIGHT DIVISION. Paleaz v. Juarez, No. 04-14-00022-CV, 2014 WL 7183483 (Tex. App.—San Antonio 2014, no pet. h.) (mem. op.) (12-17-14). Facts: Husband and Wife disputed the character of a house during their divorce proceedings. Wife had an adult son from a previous relation. During Husband’s and Wife’s marriage, Wife’s son wanted to buy a house. The son’s credit was bad, so Wife applied for a loan on his behalf. The son made all the payments on the loan, including the down payment. However, title to the house was in Wife’s name. During the divorce proceedings, Husband asked the trial court to order that the house be sold and that the proceeds be split equally between Husband and Wife. The trial court awarded the house to Wife as her separate property on the condition that she “execute any proper legal documentation to reflect the true owner [her son].” Husband appealed, arguing the trial court erred in awarding Wife as separate property the house acquired during the marriage. Holding: Affirmed Opinion: When reviewing a characterization error, a two-prong test is applied: First, whether the court’s finding of separate property was supported by clear and convincing evidence; and second, whether the characterization error caused the trial court to abuse its discretion in the overall division of the community estate. Here, the house was obtained during marriage by wife, and no evidence was presented to show that Wife purchased the house with separate funds. However, Husband failed to demonstrate that the trial court’s erroneous characterization had more than a de minimus impact on a just and right division of the community estate. Husband failed to conduct a harm analysis, and the COA may not presume harm in this instance.

DIVORCE

RETIREMENT BENEFITS QDROs MUST COMPLY WITH THE TERMS OF THE UNDERLYING DIVORCE DECREE. Beshears v. Beshears, 423 S.W.3d 493 (Tex. App.—Dallas 2014, no pet.) (1/30/14). Facts: Husband and Wife were married on July 20, 1977. In 1978, Husband began working for Company and participated in their retirement plan. In October 1998, Wife filed for divorce, and on February 5, 2002, the trial court signed a Final Decree of Divorce. The divorce decree provided that Wife was to receive 57.5% of Husband’s retirement plan, and that Husband was to receive a Qualified Joint and Survivor Annuity (“QJSA”) (i.e. the remainder). On February 5, 2002, the trial court also signed a QDRO, which provided, that Wife was assigned 57.5% of Husband’s benefit accrued under the retirement plan as of November 8, 2001 and that Wife was to be treated as the surviving spouse of Husband, notwithstanding Husband’s subsequent marriages, if any. When Husband approached retirement, he learned from Company that, because Wife was named as his surviving spouse in the 2002 QDRO, he was required to choose an annuity option that provided for Wife to receive a benefit after his death. The cost of the survivor benefit reduced the monthly benefit Husband would otherwise receive. Husband also could not name his current spouse as his surviving spouse for purposes of receiving a benefit after his death.

28 On January 18, 2012, Husband filed a motion to vacate and void the 2002 QDRO, or in the alternative, modify the 2002 QDRO on the ground that it did not comport with the terms of the divorce decree. The trial court granted the relief sought in Husband’s petition. The trial court signed an amended QDRO stating that Wife was not to be treated as the surviving spouse of Husband except with regard to the “Qualified Preretirement Survivor Annuity” to the extent of Wife’s awarded benefits. Wife appealed. Holding: Affirmed. Opinion: Wife complained that the trial court erred by granting Husband’s motion and amending the 2002 QDRO to state that Wife was Husband’s surviving spouse only for purposes of the QPSA. Wife specifically contended that Husband failed to meet his burden of establishing the 2002 QDRO did not comport with the decree and that any QDRO that did not award her at least 57.5% of the surviving spouse benefit did not comport with the decree and is void. The only evidence before the trial court pertaining to the award of survivor's benefits was Husband's testimony that Company treated the QJSA as a separate benefit and that, by naming Wife as Husband's surviving spouse, the 2002 QDRO awarded Wife a QJSA. According to the evidence presented, the QJSA was an additional benefit to the property awarded to Wife in the decree and awarded Wife more property than she was awarded in the decree. Because the QJSA was actually awarded to Husband under the residuary clause in the divorce decree, the provision in the 2002 QDRO naming Wife as Husband's surviving spouse did not comport with the decree, and the 2002 QDRO was void as to the surviving spouse issue.

DIVORCE

ENFORCEMENT OF PROPERTY DIVISION TRIAL COURT’S CONVERSION OF HUSBAND’S REQUIREMENT TO PAY A COMMUNITY DEBT TO ADDITIONAL SPOUSAL MAINTENANCE ALTERED THE DIVISION OF PROPERTY IN VIOLATION OF TFC 9.007 Everett v. Everett, 421 S.W.3d 918 (Tex. App.—El Paso 2014, no pet.) (01/29/14). Facts: On April 15, 2010, Husband and Wife entered into a final decree of divorce. As part of division of the marital estate, Wife was awarded their Trophy Club residence as her sole and separate property and was given 12 months from the date of the final decree to secure financing to purchase the residence. The decree further provided that if Wife was unable or unwilling to secure financing to purchase the property, it would be listed for sale. As part of the debt division of the marital estate, Husband was ordered to pay all ad valorem taxes on the residence awarded to Wife for a 36–month period. The decree also ordered Husband to pay Wife spousal maintenance for a 36–month period. On May 17, 2011, Husband filed a petition for enforcement of sale of the residence because Wife had not secured financing for the real property. The trial court granted Husband’s petition, but also ordered that Husband continue to pay Wife a prorated portion of the taxes due on the residence as a form of spousal support even if the residence was sold prior to 36 months from the date of entry of the divorce decree. On July 25, 2011, Husband filed a motion for reconsideration of the trial court's ruling. Husband maintained the trial court was not authorized to enter a clarification order under Texas Family Code § 9.008 and that the trial court’s order to increase Husband's spousal maintenance payment could not be justified as a modification. On January 18, 2012, Husband filed a Motion to Modify, Correct, or Reform Judgment complaining that the trial court's January 5, 2012 order contained several errors. On February 16, 2012, the trial court entered a corrected order. The corrected order ordered Husband to pay each

29 month to Wife, as additional post-divorce maintenance, an amount equal to one-twelfth of the total annual property taxes due on the marital residence. Husband Appealed. Holding: Reversed. Opinion: Husband argued that the trial court abused its discretion by entering a clarifying order that increased the amount of his spousal maintenance payments to Wife upon the sale of the property. Husband equated the trial court’s conversion of his requirement to pay a community debt to additional spousal maintenance to an alteration of the division of property, which is prohibited by Texas Family Code § 9.007. If the trial court enters an order that amends, alters or changes the actual, substantive property division made or approved in the divorce decree, the order is beyond the trial court's power and is unenforceable. COA held that converting a debt into spousal maintenance is not merely a clarification, it is a change in the substantive division of property and cannot be enforced under the statute.

BECAUSE FINAL JUDGMENT, IN WHICH TRIAL COURT REFUSED TO RECOGNIZE A COMMON-LAW MARRIAGE, CONTAINED NO ORDER DIVIDING ALLEGED COMMUNITY PROPERTY, WRIT OF PROHIBITION WOULD NOT ISSUE TO ENJOIN SECOND TRIAL COURT’S EXERCISE OF JURISDICTION OVER LIS PENDENS FILED PURSUANT TO DIVORCE PROCEEDING. In re Miller, 433 SW3d 82 (Tex. App.—Houston [1st Dist.], 2014, orig. proceeding) (03/11/13). Facts: Wife filed a petition for divorce from Husband in the Harris County Court seeking dissolution of a common-law marriage and a distribution of the alleged community estate including a tract of real property located in Brazoria County. In a separate action, Wife filed a lis pendens on the real property in Brazoria County. Eventually, the Harris County Court severed out the common-law marriage issue from the property issues and ruled that no common-law marriage existed. Wife appealed that judgment. While the appeal remained pending, the record owner of the Brazoria County property, (“Partnership”) sued Wife in Brazoria County seeking a declaratory judgment cancelling Wife’s lis pendens. In response, Wife filed a writ of prohibition in the COA, arguing that, once the COA acquired jurisdiction over the appeal from the Harris Court judgment, the Brazoria Court was prohibited from taking action concerning the alleged community property, including the canceling of the lis pendens. Holding: Writ of prohibition denied. Opinion: A writ of prohibition is available to protect the subject matter of an appeal or to prohibit unlawful interference with enforcement of an appellate court’s judgment. A writ of prohibition is not appropriate relief when other remedies, like an appeal, are available and adequate. A trial court retains authority to enforce a final judgment pending appeal so long as the judgment has not been superseded or stayed and no statute or rule of procedure removes the trial court’s authority. TFC 9.007 provides that enforcement of the property division in a divorce decree is abated during the pendency of an appellate proceeding. Here, TFC 9.007 is inapplicable because Wife’s appeal is not from a judgment dividing the community estate. Even if it was, cancelling the lis pendens does not enforce a property division ruling because a lis pendens merely notifies of the existence of the dispute; its placement or removal does not quiet title. Accordingly, the Brazoria Court had jurisdiction to enter orders enforcing the judgment while the appeal was pending. Additionally, Wife has failed to demonstrate that the Brazoria Court’s exercise of that jurisdiction would disturb or interfere with the COA jurisdiction over the appeal. Moreover, Wife has other adequate remedies available including, requesting alternate security in the Brazoria Court, and

30 mandamus relief if the Brazoria Court’s later orders in the declaratory judgment in fact interfere with the appeal.

WIFE CANNOT BE IMPRISONED FOR NON-PAYMENT OF A MONEY JUDGMENT TO HUSBAND SECURED BY AN OWELTY LIEN—EVEN IF WIFE HAD ACCESS TO FUNDS TO PAY THE AWARD—BECAUSE SUCH AWARD IS ONLY A DEBT. In re Kinney, No. 05-14-00159-CV, 2014 WL 1414280 (Tex. App.—San Antonio, 2014) (orig. proceeding) (03/27/2014) (mem. op.). Facts: Pursuant to a divorce decree, Husband was awarded $40,000.00 secured by an owelty lien on a residence in Missouri awarded to Wife in the decree. The divorce decree required Wife to pay the $40,000 to Husband within six months of the signing of the decree. Husband filed a motion to enforce the decree after Wife failed to tender payment. Following a hearing, the trial court found that Wife had access to $40,000 from an inheritance as well as property from the division of the property. Therefore, the trial court found Wife in contempt and ordered her confined until she tendered the $40,000. Wife filed a petition for writ of habeas corpus arguing the contempt order was void because it imprisoned her for failure to pay a debt. Holding: Petition for writ of habeas corpus granted. Opinion: The Texas Constitution provides that no person shall ever be imprisoned for debt. In accordance, Texas Family Code Section 9.012 may enforce by contempt an order requiring the delivery of specific property or an award of a right to future property—but may not enforce by contempt an award in a decree of divorce a sum of money payable in a lump sum or in future installments payments in the nature of debt, except for: (1) a sum of money in existence at the time the decree was rendered; or (2) a matured right to future payments. Here, the divorce decree did not characterize the $40,000 award to Husband as a sum of money in existence on the date of the decree. Instead, the divorce decree characterized the $40,000.00 as a debt of Wife and secured that debt with a lien on real property awarded to her. The fact that Wife had access to $40,000.00 from money she inherited from her mother’s estate and such money was in existence at the time of divorce is not dispositive. Accordingly, habeas corpus relief is granted because the trial court imprisoned Wife for the non-payment of a debt.

WIFE ESTABLISHED THAT DEFENDANT-DEBTOR-HUSBAND HAD CONSTRUCTIVE NOTICE OF SERVICE IN GARNISHMENT ACTION BECAUSE EVIDENCE SHOWED HE AVOIDED AND REFUSED SERVICE TO A VALID BUSINESS ADDRESS Jacobs v. Jacobs, ___ S.W.3d ___, 2014 WL 4923263, 14-13-00442-CV and 14-13-00462-CV (Tex. App.—Houston [14th Dist.] 2014, no pet. h.) (10-02-14). Facts: Husband—who is an attorney—and Wife divorced, and a decree was entered based on their MSA. Husband subsequently refused to comply with the decree by refusing to transfer certain assets to Wife. Wife filed suit to enforce the property division, and the trial court granted Wife injunctive relief in temporary orders. Husband filed an interlocutory appeal claiming that the trial court did not have jurisdiction to grant Wife’s relief due to an arbitration clause in the MSA. The COA held that the trial court did not err in not sending the Parties to arbitration because the claims asserted by Wife were expressly excluded from the MSA’s arbitration provision.

31 While that appeal was pending, Wife filed applications for prejudgment writs of garnishment against Husband’s nonexempt funds and assets held by Garnishees—two banks with whom Husband maintained accounts. Prejudgment writs of garnishment were issued the same day. Garnishees were properly served, and each filed timely answers. Wife attempted to serve Husband by personal service, certified mail, and first-class mail. Attempts at personal service were unsuccessful. One certified mailing was returned as “unclaimed,” and the other certified mailing was returned “refused.” The two first-class mailings were not returned. Husband did not file an answer. Wife filed motions for summary judgment on her prejudgment garnishment claims. Two days before the hearing on Wife’s MSJs, Husband filed motions to vacate or dissolve the prejudgment writs. After an evidentiary hearing, the trial court denied Husband’s motions and granted Wife’s MSJs. Husband appealed, represented himself, and, among other issues presented, challenged the trial court’s ruling based on improper service of the garnishment writs. Holding: Affirmed Opinion: Under Texas Rule of Civil Procedure 663a, a defendant debtor in a garnishment action must be served with a copy of the writ of garnishment, the application for the writ with any supporting affidavits, and orders of the court. Service must be made “in any manner prescribed for service of citation or as provided in [Texas Rule of Civil Procedure] 21a.” Neither TRCP 21a nor TRCP 663a require proof of actual acceptance of service by the debtor. Even if a party does not have actual notice, the serving party may establish “constructive notice” by demonstrating compliance with TRCP 21a and presenting evidence that the intended recipient engaged in selective acceptance or refusal of certified mail relating to the case. Certified mail that has been returned “refused” tends to indicate that the party had actual notice, as distinguished from certified mail returned as “unclaimed,” which does allow the same inference. Here, Wife attempted service on Husband as properly authorized by TRCP 21a, but Husband avoided and refused service. Both the Garnishees were served on the Wednesday before Thanksgiving. Wife’s counsel received confirmation of service the following Monday. The next day, Wife attempted personal service at both Husband’s home and business addresses. At each address, Husband’s brother and employees claimed that Husband was “not in.” The constable who attempted service noted that Husband was “avoiding service” at a “good [work] address.” The same day, Wife also attempted service by certified mail to Husband’s home and business addresses. The mailing to his residence was returned as “unclaimed,” and the mailing to his business was returned as “refused.” The COA noted that the business address used by Wife was the same address that was included on Husband’s appellate brief, the State Bar website, and the fax cover sheet for his motions to vacate or dissolve. Further, Husband did not dispute that he voluntarily appeared, and his trial counsel presented evidence and argument at the hearing on the Parties’ motions. Wife met her burden to show proper service through constructive notice.

TRIAL COURT ABUSED DISCRETION IN AWARDING WIFE A MONEY JUDGMENT AFTER HUSBAND WAS UNABLE TO OBTAIN LIFE INSURANCE AS CONTEMPLATED IN FINAL DIVORCE DECREE. Carroll v. Castanon, No. 04-13-00231-CV, 2014 WL 7354637 (Tex. App.—San Antonio 2014, no pet. h.) (mem. op.) (12-10-14). Facts: In Husband and Wife’s divorce decree, Husband was ordered to designate Wife as a “former spouse beneficiary” under his Survivor Benefit Plan (“SBP”), and Wife was ordered to pay the necessary premiums to maintain the SBP. When Husband retired from the military, he applied for SBP and designated Wife the beneficiary. However, the application was denied. Subsequently, the trial court signed a clarifying order requiring Husband to deliver the application(s) required to obtain a $1,000,000 life insurance policy on his life, naming Wife as owner of the policy or policies. Wife was ordered to pay any necessary premiums. Husband delivered the applications; however, he was unable to obtain life

32 insurance due to health issues. Wife filed a motion for finalization of enforcement. After hearing the evidence, the trial court awarded Wife a $1,000,000 money judgment because Husband failed to deliver a $1,000,000 life insurance policy to Wife. Husband appealed. Holding: Reversed and Remanded Opinion: TFC 9.010(a) permits a court to render a money judgment for a party’s failure to deliver property as ordered in a decree of divorce or annulment. Here, Husband was ordered to deliver to Wife completed application(s) in order to obtain $1,000,000 death benefits coverage and naming Wife as owner of the policy or policies. Husband delivered the applications to Wife. He directly applied for three different policies and indirectly applied for nine others, but he was denied coverage on all twelve applications. Despite the denied coverage, Husband did not “fail to comply” with the order. Moreover, other cases in which TFC 9.010(a) has been applied involved delivery of tangible property, such as a house, a car, furniture, or livestock.

DIVORCE

SPOUSAL MAINTENANCE/ALIMONY ALTHOUGH WIFE TESTIFIED THAT SHE DID NOT CONSIDER HERSELF DISABLED, THE TRIAL COURT COULD REASONABLY INFER FROM THE REMAINDER OF THE EVIDENCE THAT HER INCAPACITY QUALIFIED HER FOR SPOUSAL MAINTENANCE; WIFE FAILED TO SUPPORT HER REQUEST FOR APPELLATE ATTORNEY’S FEES WITH EVIDENCE THAT SUCH FEES WERE REASONABLE AND NECESSARY. Galindo v. Galindo, No. 04-13-00325-CV, 2014 WL 1390474 (Tex. App.—San Antonio 2014, no. pet.) (04/09/2014) (mem. op.). Facts: Several years after Husband and Wife married, Wife was diagnosed with an intestinal tract disorder that caused Wife severe symptoms and required multiple hospitalizations. The disorder also impeded Wife’s ability to work outside the home. Husband petitioned for divorce in 2011—Wife counterpetitioned and requested spousal maintenance. During the trial, Wife testified that, despite the severity of her symptoms, she did not consider herself disabled. Afterward, the trial court found Wife disabled due to her intestinal disorder and ordered Husband to pay Wife spousal maintenance. After Husband perfected his appeal, Wife filed a motion for temporary orders seeking appellate attorney’s fees. The trial court granted Wife’s request for appellate attorney’s fees. Holding: Affirmed in part, reversed and rendered in part. Opinion: On appeal, Husband argued that there was insufficient evidence that Wife was disabled. Texas Family Code § 8.051(2)(A) authorizes a trial court to award spousal maintenance where the spouse seeking maintenance is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability. There is no authority directly addressing the quantum of evidence required to prove incapacity in a spousal maintenance action. Without a statutory requirement to the contrary, a fact finder may reasonably infer an individual’s incapacity from circumstantial evidence or the competent testimony of a lay witness. Here, Wife testified that her disorder caused her severe pain that caused uncontrollable vomiting and bowel movements, and required multiple trips to the hospital. Additionally, Wife’s disorder required her to take a number of medications including a nerve block injection that could impair her for several days.

33 Although Wife provided testimony indicating that she did not consider herself disabled, when viewed in context, this testimony merely reflected her refusal to be labeled as “disabled.” Based on the foregoing, the trial court could reasonably infer Wife’s incapacity qualified for spousal maintenance. Husband argued further that the trial court erred by awarding Wife spousal maintenance for an indefinite period of time. However, TFC 8.054(b) authorizes a trial court to order spousal maintenance to whom Texas Family Code § 8.051(2)(A) applies for as long as the spouse continues to satisfy the eligibility criteria. Accordingly, the trial court did not err by awarding Wife spousal maintenance indefinitely. Husband also argued that the trial court erred by awarding Wife appellate attorney’s fees because there was insufficient evidence to support the award. As long as there is a credible showing of the need for appellate attorney’s fees in the amount requested and the ability of the opposing spouse to meet that need, the trial court has authority by temporary orders to require payment of such fees. However, the party seeking to recover attorney’s fees has the burden of proving those fees are reasonable and necessary. Here, Wife’s motion did not request a specific amount of fees and at the hearing on the motion for temporary orders, there was neither testimony nor an affidavit to support the reasonableness of the fees awarded. Consequently, there is insufficient evidence to support the award of appellate attorney’s fees. Therefore, the portion of the trial court’s temporary order awarding appellate attorney’s fees is reversed.

PROVISIONS IN DIVORCE DECREE AWARDING WIFE MAINTENANCE IN EXCESS OF THE STATUTORY ALLOWANCE FOR SPOUSAL MAINTENANCE WERE NOT VOID, BUT WERE ONLY ENFORCEABLE AS A CONTRACTUAL DEBT AND NOT AS SPOUSAL MAINTENANCE. Tome v. Tome, No. 02-14-00037-CV, 2014 WL 3953638 (Tex. App.—Fort Worth 2014, no pet.) (mem. op.) (08-14-14). Facts: Husband and Wife signed an agreed decree of divorce, which was approved and signed by the trial court. In the decree, Wife was awarded two lump sum payments that were characterized as “maintenance” and were intended to pay off debts of the Parties relating to a vendors’ lien note and a promissory note to purchase the Parties’ home. Six years after the divorce, Wife filed a motion for enforcement to enforce the payment of the maintenance by contempt. At the hearing on her motion, Wife conceded that the court did not have the authority to order the maintenance “as it was ordered.” The trial court held that the provisions of the decree awarding “maintenance” were void, but it nevertheless awarded Wife a money judgment equaling the total of the two debts plus interest and attorney’s fees. Wife appealed, arguing that the trial court erred in finding the maintenance orders void. Holding: Affirmed Opinion: When a court has jurisdiction over the parties and the subject matter, a subsequent judgment is not void, but merely voidable. Such an error may be corrected through a direct appeal. If no appeal is made, the judgment cannot be subject to a collateral attack in a subsequent suit. Here, there was no question that the trial court had jurisdiction over the parties and the subject matter. Thus, the trial court had jurisdiction to award spousal maintenance, and its judgment for maintenance was not void. However, the amount and duration of the spousal maintenance payments in the decree were not authorized by the version of TFC 8.055(a) in effect at the time of the Parties’ divorce. Regardless, no appeal was taken, so the decree was no longer subject to collateral attack. Even though the awards could not be characterized as spousal maintenance, the amounts awarded in the divorce decree were enforceable as a contractual debt. Further, because debt cannot be enforced through contempt, the trial court did not err in not holding Husband in contempt.

34

WIFE REBUTTED PRESUMPTION AGAINST SPOUSAL MAINTENANCE BY SHOWING THAT SHE EXERCISED DILIGENCE IN EARNING SUFFICIENT INCOME DURING MARRIAGE AND AFTER THE PARTIES SEPARATED; ELIGIBILITY FOR MAINTENANCE WAS BASED ON WIFE’S CURRENT ABILITY TO PROVIDE FOR HER MINIMUM REASONABLE NEEDS, NOT WHETHER SHE COULD DO SO WITH ADDITIONAL TRAINING OR EDUCATION. Day v. Day, ___ S.W.3d ___, 2014 WL 6601655, 01-13-00839-CV (Tex. App.—Houston [1st Dist.] 2014, no pet. h.) (11-20-14). Facts: Husband and Wife separated, and Wife acted as the primary caregiver for their only Child. After a five-year separation, Wife filed for divorce. During the proceedings, the Child graduated from high school. In her petition for divorce, Wife alleged that Husband had wasted community funds and asked the trial court to award her a reconstitution of the estate through court-ordered maintenance. After a trial, the trial court ordered Husband to pay spousal maintenance for 75 months. Husband appealed and argued that although Wife did not currently earn sufficient income to meet her minimum reasonable needs, she presented no evidence that she lacked the ability to earn more. In addition, Husband argued that Wife had not exercised diligence in earning sufficient income or in developing the necessary skills to provide for her minimum reasonable needs. Holding: Affirmed Opinion: Under Texas Family Code Section 8.051(2), a spouse may be entitled to spousal maintenance if she lacks the ability to earn sufficient income to meet her reasonable needs and the marriage lasted at least ten years. This section of the TFC focuses on whether the spouse currently meets her minimum reasonable needs, not whether she may be able to do so in the future. Texas Family Code Section 8.053 provides the statutory presumptions against granting spousal maintenance. Unlike Texas Family Code Section 8.053(a)(2), Texas Family Code Section 8.053(a)(1) is not limited to the time during the spouses’ period of separation, thus efforts made during the marriage could be considered. Further, in 2011, the statute was amended to change the requirement from “diligence in seeking suitable employment” to “diligence in earning sufficient income.” Therefore, any efforts to increase income and decrease expenses could be considered under this subsection. Here, Wife was unable to meet her minimum reasonable needs because her income was about $1900 per month, and her expenses were about $3000 per month. Wife already worked full time plus some overtime. She had no assets from which she could earn rental income. While the parties were married, Wife was the primary caregiver for the Child and was frequently the only source of steady, regular income for the family. When the couple separated, Wife had been unemployed for a couple of months, but she was able to obtain and keep a job for over five years, and her annual pay increased from $30,000 to $34,000 during that time. She drastically limited her expenses, exhausted her savings, and sold separate property in order to care for the Child until the Child graduated from high school. To reduce expenses, Wife quit a substance abuse habit and negotiated reduced attorney’s fees. In addition, she did not buy furniture for her home or replace or repair her seven-year-old car. Wife sold separate real property acquired before marriage, took out personal loans, and used inherited money from her parents to support herself and the Child.

35

SAPCR

STANDING AND PROCEDURE SAPCR SUITS MUST BE TRANSFERRED TO A SUIT FOR DISSOLUTION OF THE MARRIAGE OF THE CHILD’S PARENTS IN ANOTHER COURT. In re Bigham, 10-13-00355-CV, 2014 WL 285667 (Tex. App.—Waco 2014, orig. proceeding) (mem. op.) (1/23/14). Facts: Father’s sister filed a petition in Limestone County seeking sole conservatorship of Father and Mother’s two children. Sister was granted temporary orders naming her SMC. Six days later, Father filed a petition for divorce from Mother in Dallas County and filed a motion in Limestone County to transfer and consolidate the SAPCR suit from Limestone County to Dallas County. Father’s motion to transfer was denied on the basis that Limestone County had continuing, exclusive jurisdiction of the case. Father petitioned for mandamus relief. Holding: Writ conditionally granted. Opinion: Father argued that his motion to transfer was erroneously denied. The Texas Family Code provides for the mandatory transfer of a SAPCR suit to a suit for dissolution of marriage of the child’s parent’s in another court.

GRANDPARENTS HAD STANDING TO INTERVENE AND BE APPOINTED MANAGING CONSEVATORS BECAUSE EVIDENCE ESTABLISHED SPECIFIC ACTIONS AND OMISSIONS THAT DEMONSTRATED THAT AWARDING MOTHER CUSTODY WOULD RESULT IN EMORTIONAL HARM TO CHILDREN Mauldin v. Clements, 428 S.W.3d 247 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (02-04-14) Facts: Following divorce decree appointing mother and father joint managing conservators of minor children, father filed petition for modification. Children’s paternal grandparents filed petition in intervention requesting to be appointed joint managing conservators. Trial court appointed grandparents as managing conservators and limited mother’s access to children to supervised visitation. Mother appealed. Holding: Affirmed Opinion: For a non-parent to establish standing they must offer evidence of specific actions or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child. The evidence must support a logical inference that the specific, identifiable behavior or conduct will probably result in the child being emotionally impaired or physically harmed,” and evidence that “merely raises a surmise or speculation of possible harm” is insufficient to establish that inference. Furthermore, the nonparent's burden is not met by evidence that she would be a better custodian of the child, that she has a strong and on-going relationship with the child, or that the parent would not have been a proper custodian in the past. Here, Amicus Attorney provided evidence regarding H.T.M.’s and C.T.M.’s poor school attendance and performance records and other evidence of the children’s extreme behavioral issues during the time

36 they were living with Mother. The record included evidence that the older child, C.T.M., had multiple absences in the semester immediately prior to the hearing and was failing several classes. There was also evidence that H.T.M. had shown behavioral problems at school that had led to lunch detentions and other disciplinary problems, that his grades were suffering, and that his bad behavior was escalating. When the trial court subsequently asked Mother about the reasons underlying the children’s poor school performance and poor behavior, Mother recited numerous problems relating to previous disputes with Father and PGPs, some of which resulted in reports to DFPS or to police, but she did not acknowledge any failure of her own that contributed to the boys’ attendance and school problems. She testified that she thought the boys had been doing better in the past month or two. The Amicus Attorney also stated that Mother had not fully complied with the trial court’s orders that the children attend counseling and was uncooperative in the investigation into the children’s medical and school records. Mother acknowledged at the hearing that she had not had the children in counseling following DFPS’s termination of their in-home services, but stated that she had attempted to set up more counseling. The Amicus Attorney also asserted that Mother involved the children in the on-going litigation to an unnecessary degree, and she gave the example that H.T.M. knew in advance that the Amicus Attorney would be meeting with people at his school and was very worried about what would happen. The Amicus Attorney stated that Mother’s actions involving the children in the litigation caused the children emotional distress. The Amicus Attorney and the DFPS caseworker both agreed that the children needed to be removed from Mother’s custody. The DFPS caseworker cited “17 allegations and referrals [that] CPS has had to investigate over the past few years with this family” as causing “emotional trauma” for the children. However, there was no evidence that any of those allegations had been substantiated. The Amicus Attorney informed the court that residential treatment would help the children, but no one involved in the case could afford it. In light of those financial constraints, The Amicus Attorney believed placement with PGPs was in the children’s best interest. Two days later, when the court convened another hearing to enter the order giving PGPs temporary managing conservatorship of the children, The Amicus Attorney informed the court that Mother had again involved the children in litigation by giving them unnecessary details about the prior hearing. PGPs’ attorney informed the court that Mother had concealed notes to the boys inside their stuffed animals, telling them that she loved them and to be good so that they could come back home, in spite of promising the court that she would not violate the court’s order not to contact the children. These letters were introduced into evidence and included in the record. Thus, the records of these hearings established specific actions and omissions that demonstrated that awarding Mother custody would result in emotional harm to C.T.M. and H.T.M. Therefore, a preponderance of the evidence supported the trial court’s implied finding that Mother was not, at the time of PGPs’ intervention, a suitable person to have custody of C.T.M. and H.T.M. and that appointing her as the children’s managing conservator would have significantly impaired their emotional development. Accordingly, PGPs had standing to intervene in the suit.

EVIDENCE OF A GRANDPARENT’S STANDING UNDER TEXAS FAMILY CODE 102.004(a)(1) MUST CONSTITUTE “SATISFACTORY PROOF TO THE COURT”—MEANING THAT THE COURT DOES NOT ACT AS A FACTFINDER, BUT ONLY DETERMINES WHETHER THE EVIDENCE RAISES A GENUINE FACT ISSUE ON THE REQUIRED ELEMENTS OF STANDING. In re K.D.H., 426 SW3d 879 (Tex. App.—Houston [14th Dist.] 2014, no. pet.) (04/03/2014). Facts: Mother tested positive for marijuana while pregnant with the Child. Thereafter, without suing Mother or Father, TDFPS placed the Child with Grandmother. Grandmother cared for the Child for the first three months of its life and then returned the Child to Mother. Afterward, Grandmother filed an

37 original SAPCR requesting the trial court to appoint her as the Child’s sole managing conservator. Grandmother invoked Texas Family Code § 102.004(a)(1) as her basis for standing and requested a jury trial on the conservatorship issue. To support her standing, Grandmother filed an affidavit in which she attested to Mother’s previous DWI and child endangerment convictions, that Father was incarcerated, and that both parents had previously neglected and abused the Child. Mother filed a plea to the jurisdiction challenging Grandmother’s standing, but did not submit any evidence in support of her plea. At a hearing on Mother’s plea to the jurisdiction, Grandmother testified to her standing whereas Mother and Father made arguments but did not testify or offer any evidence. Afterward, the trial court sustained the Mother’s plea to the jurisdiction and dismissed the Grandmother’s suit based on lack of standing. Grandmother appealed. Holding: Reversed and remanded. Opinion: Under Texas Family Code §102.004(a)(1), a grandparent, or another relative of the child related within the third degree by consanguinity, may file an original SAPCR requesting managing conservatorship if there is “satisfactory proof to the court” that the order requested is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development. At issue is what is necessary for there to be “satisfactory proof to the court” in the context of Texas Family Code § 102.004(a). The dissent suggests that “satisfactory proof to the court” means that standing under Texas Family Code § 102.004(a) requires the petitioner to prove standing at an evidentiary hearing in which the trial court acts as factfinder. Under this construction, if the trial court were to find the facts against the standing proposition and dismiss the case, the petitioner could then appeal and challenge the legal or factual sufficiency of the trial court’s factfindings on standing. This construction conflicts with the fundamental principle that appellate courts review a trial court’s rulings on standing de novo. Moreover, for Grandmother to succeed on the merits of her suit—to be appointed as the Child’s sole managing conservator—Grandmother must prove that appointment of Mother or Father as a managing conservator would not be in the Child’s best interest because such an appointment would significantly impair the Child’s physical health or emotional development. Therefore, Mother’s challenge to Grandmother’s standing under Texas Family Code §102.004(a) implicates not only Grandmother’s standing, but also the merits of the Grandmother’s suit. Thus, because Grandmother has invoked her right to a jury trial, construing Texas Family Code § 102.004(a)(1) in a manner that casts the trial court as the factfinder on standing deprives Grandmother of her right to have the jury, rather than the trial court, be the factfinder on the managing conservatorship issue. Accordingly, the Dissent’s construction of Texas Family Code § 102.004(a) is unreasonable. By contrast, the Texas Supreme Court has held that in this situation (when a jurisdictional challenge implicates the merits of the petitioner’s case), the trial court must review the relevant evidence to determine if a fact issue exists. If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder (in this case, the jury). But, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court is to rule on the plea to the jurisdiction as a matter of law. Based on the above principles, “satisfactory proof to the court” means that, to decide whether a petitioner has standing under Texas Family Code § 102.004(a)(1), the trial court must determine whether there is a genuine fact issue as to the proposition in question—i.e. whether the evidence submitted regarding the standing issue, considered in the light most favorable to the petitioner, would enable reasonable and fair-minded people to find that the order requested is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development. Appellate courts will then be able to review the trial court’s determination de novo. This construction also respects the trial court’s gatekeeper function over standing issues, and a petitioner’s right to a jury trial on issues regarding appointment of the petitioner as sole managing conservator.

38 Here, the record contained Grandmother’s extensive testimony regarding, among other things, Mother’s and Father’s drug and alcohol abuse, Mother’s DWI and child endangerment convictions, and that Mother tested positive for marijuana while pregnant with the Child. Although Mother and Father made legal arguments at the hearing on Mother’s plea to the jurisdiction, neither parent presented any evidence. Under a de novo review, considering the evidence in the light most favorable to Grandmother, the evidence would enable reasonable and fair-minded people to find that Grandmother’s request to be named as the Child’s sole managing conservator is necessary because the Child’s circumstances on the date Grandmother filed suit would significantly impair the Child’s physical health or emotional development. Thus, the trial court erred by sustaining Mother’s plea to the jurisdiction and dismissing the case. Dissent: “Satisfactory proof to the court” does not comport with any evidentiary standard elsewhere in the Family Code or other Texas statutes. Until the Legislature or the Texas Supreme Court clarifies whether Texas Family Code § 102.004(a)(1) creates a new evidentiary standard, this COA should follow its sister courts’ constructions of the statute. These courts have held that “satisfactory proof to the court” requires the petitioner to prove standing under Texas Family Code § 102.004(a) by a preponderance of the evidence. Moreover, the phrase “satisfactory proof to the court” indicates that on appeal, appellate courts should defer to the trial court’s assessment of whether a grandparents proof was satisfactory, considering the evidence in a light favorable to the trial court’s ruling and implying findings to support the judgment. Here, it is undisputed that when Grandmother filed suit, the Child was living with Mother and Father away from Grandmother’s residence. Additionally, the trial noted that Grandmother presented evidence only of the Child’s circumstances occurring prior to Grandmother’s suit rather than evidence that the Child’s then-present circumstances significantly impaired her health or emotional development. Moreover, the trial court noted that although TDFPS was involved in placing the Child temporarily with Grandmother, it had never filed suit against Mother or Father. In fact TDFPS issued a report to the trial court recommending continued placement with Mother. Accordingly, implying the findings necessary to support the trial court’s determination, the COA should have concluded that a reasonable fact-finder could have found that Grandmother failed to present by a preponderance of the evidence “proof satisfactory to the court” that the Child’s present circumstances on the date Grandmother filed suit would significantly impair the Child’s physical health or emotional development.

FATHER’S AFFIDAVIT SUPPORTING HIS PETITION SEEKING TO MODIFY THE DESIGNATION OF THE PERSON HAVING THE EXCLUSIVE RIGHT TO DESIGNATE CHILD’S PRIMARY RESIDENCE—THAT FATHER FILED LESS THAN ONE YEAR AFTER THE PRIOR ORDER—WAS SUFFICIENT FOR THE TRIAL COURT TO JUSTIFY A HEARING ON FATHER’S PETITION. In re A.D., 14-12-00914-CV, 2014, 2014 WL 1800082 (Tex. App.—Houston [14th Dist.] 2014, no. pet.) (05/06/2014). Facts: In a July 2010 divorce decree, the trial court appointed Mother and Father as JMCs, gave Mother the exclusive right to designate the Child’s primary residence, and awarded Father standard possession. Later that year, Mother reported to authorities a suspicion that Father had sexually abused the Child during his visitation. Mother also retained a personal-injury attorney, who took Father’s deposition, in which he denied the allegation. Mother then persisted for more than a year in accusing Father of sexually abusing the Child although authorities and professionals continued to determine the allegations were unfounded. Meanwhile, in February 2011, (less that one year after the trial court signed the divorce decree) Father filed a petition to modify the decree requesting the right to designate the Child’s primary

39 residence. Several months later, Father filed a supporting affidavit, alleging Mother was endangering the Child by perpetuating the false accusations. Mother filed a motion to dismiss Father’s petition, which the trial court denied. Following a jury trial, the trial court signed an order retaining both parents as joint managing conservators but giving Father the exclusive right to designate the Child’s primary residence and ordering Mother’s possession to be supervised. Mother appealed, arguing that trial court erred by refusing to dismiss Father’s petition to modify because Father’s supporting affidavit failed to state a proper allegation pursuant to Texas Family Code Section 156.102(b)(1). Holding: Affirmed Opinion: Texas Family Code Section 156.102(b)(1) provides that a party seeking to modify the designation of the person having the exclusive right to designate the primary residence of a child less than one year after the date of the rendition of the order shall execute and attach to the petition an affidavit containing supporting facts and must allege that “the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development.” Texas Family Code Section 156.102(c) provides that the trial court “shall deny the relief sought and refuse to schedule a hearing for modification under this section unless the court determines, on the basis of the affidavit, that facts adequate to support [the] allegation…are stated in the affidavit.” Here, in his affidavit, Father detailed Mother’s continued allegations of sexual abuse, reports to authorities, and the resulting investigations and sexual assault examinations of the Child. Father also averred: I feel that this continued harassment against me is causing stress and trauma to [the Child]. [Mother’s] actions present a clear and present danger to the [C]hild’s safety and welfare. According to Mother, Father’s averment that Mother reported her suspicions of abuse failed to allege that the child's present environment may endanger the child’s physical health or significantly impair the child’s emotional development. However, the crux of Father’s affidavit was not just that Mother reported her suspicions but that she continued to make false accusations that Father sexually abused the Child. The trial court could have found that Father sufficiently alleged Mother’s behavior may significantly impair the Child’s emotional development because (1) the two-year-old may be subjected to more sexual-assault examinations, and (2) there is a general harm inherent in the child being the subject of the false accusations and used as a weapon in a custody dispute. Accordingly, the trial court did not err by deciding that Father’s affidavit was sufficient to justify a hearing on his petition for permanent modification.

TRIAL COURT LACKED JURISDICTION TO RENDER AN AGREED DECREE ON CONSERVATORSHIP BECAUSE PETITIONER FILED THE SAPCR PETITION AFTER FATHER SIGNED A WAIVER OF CITATION. In re J.G.H., No. 04-13-00027-CV, 2014 WL 2002846 (Tex. App.—San Antonio, 2014, no. pet.) (mem. op.) (05/14/2014). Facts: After Mother gave birth to the Child, the Child left the hospital in the care of Mother’s Aunt (“Aunt”) who agreed to take care of the Child until Mother and Father were able to financially provide for the Child. Afterward, Aunt contacted an attorney about adopting the Child. Because Aunt could not afford the cost associated with an adoption, the attorney suggested the parties pursue a conservatorship by having the Child reside with Aunt for six months. On May 3, 2011, the attorney had Mother and Father sign a “Waiver of Citation and Consent to Appointment of Sole Managing Conservators” that recited among other things:

40 I hereby enter my appearance in this cause for all purposes and waive the issuance, service, and return of citation on me. I agree that the petition may be amended and that the cause may be taken up and considered by the Court without further notice to me. The attorney also prepared an agreed decree that Mother and Father signed. Although the waivers stated that Mother and Father were given a copy of the filed petition, Aunt did not actually file the petition or the waivers until November 15, 2011, six months after the Mother and Father signed the waivers. On that same day, the trial court rendered judgment appointing Aunt as the Child’s sole managing conservator and Mother and Father as joint possessory conservators. Ten months later, Father filed a petition for bill of review alleging that Aunt never served him with a filed copy of her original SAPCR petition. After an evidentiary hearing, the trial court denied Father’s bill of review. Father appealed arguing that the trial court erred in denying the bill of review because Aunt obtained the waiver of citation prior to the filing the SAPCR petition. Holding: Reversed and remanded Opinion: A bill of review plaintiff need not satisfy the formal requirements for a bill of review when the record reveals that the trial court lacked jurisdiction to render the judgment at issue. Texas Rule Civil Procedure 119 provides in relevant part that a defendant may: waive the issuance or service thereof by a written memorandum signed by him, or by his duly authorized agent or attorney, after suit is brought, sworn to before a proper officer other than an attorney in the case, and filed among the papers of the cause, and such waiver or acceptance shall have the same force and effect as if the citation had been issued and served as provided by law. Thus, the rule contemplates that waiver may not be effected until after suit has been filed. A waiver of issuance and service of citation executed prior to the filing of an action is void. Here, Father signed the waiver of citation on May 3, 2011. Aunt did not file the petition or Father’s waiver until November 15, 2011. Accordingly, because Aunt filed the petition after Father executed the waiver, the wavier was void, and the SAPCR decree was rendered in violation of Rule 119. Similarly, because there was no action pending at the time Father signed the agreed decree, it cannot constitute a general appearance such that citation and service on Father was not required. Consequently, the trial court lacked jurisdiction to render the SAPCR decree.

UNDER THE HAGUE CONVENTION, PANAMA WAS CHILDREN’S HABITUAL RESIDENCE BECAUSE, ALTHOUGH MOTHER MAY HAVE INITIALLY INTENDED TO RETURN TO THE U.S., THE TRIAL COURT COULD REASONABLY HAVE FOUND THAT MOTHER LATER CHANGED HER MIND SUCH THAT SHE SHARED AN INTENT WITH FATHER TO MAKE PANAMA THE CHILDREN’S HABITUAL RESIDENCE. In re S.H.V., 434 S.W.3d 792 (Tex. App.—Dallas 2014, no pet.) (06/04/14). Facts: Mother and Father married in 2000. Shortly thereafter, Father moved to and remained in Panama to conduct a business. Mother gave birth to the parties’ first child in 2002, after which she and the first child relocated to Panama to be with Father. In 2005, Mother and the first child relocated to the U.S. for nine months—returning to Panama to live with Father in 2006. Mother gave birth to the parties’ second child in Panama in 2008. Father and Mother separated in March 2010. Thereafter, Mother moved to different Panamanian town located on another island. Father filed a child-custody case in a Panamanian court and obtained a court order giving Mother custody of the children and giving Father possession of

41 the children every weekend. The order also prohibited the children from leaving Panama. In August 2012, Mother removed the Children from Panama to Texas. In January 2013, Father filed a petition in Texas under the Hague Convention (the “Convention”) seeking return of the Children to Panama. Following a hearing, the trial court, signed an order granting Father’s petition finding that Panama was the Children’s habitual residence. Mother appealed. Holding: Affirmed as modified Opinion: The Convention establishes the procedures whereby a parent can petition for the return of a child who has been wrongfully removed from the child’s habitual residence to the United States. A petitioner establishes wrongful removal by proving that the removal of the child was made in breach of the rights of custody of the petitioner under the law of the country in which the child habitually resided immediately before the removal. The habitual-residence determination requires a two-part inquiry: (1) the first consideration is the last shared intent of parents—usually the last shared intent is decisive; and (2) whether the evidence unequivocally shows that the children have acclimatized to a new location and thereby acquired a new habitual residence, despite any conflict with the parents’ last shared intent. Mother did not dispute that Father adequately proved his own intention to make Panama the children’s habitual residence. Rather, Mother contended that Father adduced no evidence that she ever shared that intention—contending that the only intention she ever shared with Father was their original intention to move the family back to the United States after they had established their business in Panama. Thus, the issue was whether the trial court could reasonably find that Mother’s intentions later changed such that she shared an intent with Father to make Panama the children's habitual residence. Here, Father testified that Mother told him before she and the first child returned to Panama in 2006 that it was better to live in Panama than the U.S. by herself; Mother lived in Panama continuously from 2006 to 2012; and that the parties second Child was born in 2008 in Panama and had lived their since its birth. Mother testified that she applied for and received a permanent residence card in Panama; she opened a business in Panama; lived in Panama for two years after the parties separated; and sent the older child to an international school in Panama. On this record, a trial court reasonably could have concluded that Mother agreed to make Panama the Children’s habitual residence at some point between 2006 and 2012. The next issue is whether the evidence unequivocally shows that the children have become so acclimatized to life in the U.S. that this fact should override the parents’ last shared intent. Here, the second child lived in Panama from his birth in 2008 until Mother removed him to Texas in August 2012. Mother presented no evidence that the child acclimatized to life in the U.S. in the roughly five months that passed before Father filed his petition. The first child, lived in the U.S. for much of the first four years of his life, but then he was moved to Panama in 2006 and lived there until August 2012. Again, Mother adduced no record evidence that the second acclimatized to life in the U.S. to such a strong degree, despite six years of residency in Panama, that he acquired a new habitual residence there. Accordingly, the trial court did not abuse its discretion by ruling that Panama was the children’s habitual residence. Mother next argued that the trial court erred by not denying Father’s petition based on her “age and maturity” affirmative defense. Under the Convention, a trial court may refuse to order the return of a child it finds by a preponderance of the evidence that: (1) the child objects to being returned; and (2) has attained an age and degree of maturity that make it appropriate to consider the child’s views. Here, the evidence pertinent to the age-and-maturity defense consisted of a Panamanian psychological report of the first child performed in August 2012, three weeks before the child’s tenth birthday. The report contained several statements allegedly made by the child, in essence, that he liked living with Mother, that Panama was not his favorite place to live because there were only three children living there (at the family resort business), and he preferred attending school in the U.S. Additionally, the psychologist opined that the child manifested “higher than average performance” with respect to growth,

42 development, and maturation. But the psychologist did not further explain or quantify this conclusion nor did Mother adduce any evidence of the psychologist’s education, training, or qualifications. A reasonable interpretation of the psychological report is that the older child preferred the U.S. over Panama because he perceived the U.S. to offer better educational and social opportunities, but he did not find life in Panama intolerable or even unpleasant. Thus, the trial court could have properly concluded that the older child did not object to return to Panama. Additionally, on this record, the trial court could have properly concluded that the child was not old enough and mature enough for his views to be taken into account under the age-and-maturity defense. Accordingly, Mother's arguments concerning the ageand-maturity defense are without merit.

BECAUSE ALLEGED FATHER OF ADOPTED INFANT CHILD FAILED TO REGISTER WITH THE PATERNITY REGISTRY BEFORE THE BIRTH OF THE CHILD OR BY THE 31ST DAY AFTER THE CHILD WAS BORN, HE HAD NO STANDING TO FILE SUIT TO ADJUDICATE PATERNITY. In re O.L.R.M., No. 04-13-00681-CV, 2014 WL 2548349 (Tex. App.—San Antonio 2014, no pet.) (mem. op.) (06/04/14). Facts: After the infant Child was adopted, Father filed a petition to adjudicate parentage. Adoption Agency, filed a plea to the jurisdiction and request for the trial court to dismiss Father’s suit on the grounds that he lacked standing. The trial court granted Adoption Agency’s motion and dismissed the case with prejudice. Father appealed. Holding: Affirmed Opinion: Father first argued that the Texas Paternity Registry did not require him to register his and the Child’s mother’s sexual encounter because he had no “reasonable belief” a child would be born of the encounter. The general standing provision for suits affecting the parent-child relationship states that a suit may be filed at any time by “a man alleging himself to be the father of a child filing in accordance with Chapter 160, subject to the limitations of that chapter.” TFC 160.402(a) provides that an alleged father who desires to be notified of a proceeding for the adoption of or the termination of parental rights regarding a child that he may have fathered may register with the registry of paternity: (1) before the birth of the child; or (2) not later than the 31st day after the date of the birth of the child. The parental rights of a man alleged to be the father of a child may be terminated without notice as provided by Section 161.002 if the man (1) did not timely register with the bureau of vital statistics; and (2) is not entitled to notice under Section 160.402 or 161.002. Importantly, the statute contains no “reasonable belief” exception or requirement. Therefore, if Father wanted notice of any adoption or termination proceeding as to the Child, he was required to register. Accordingly, Father had no standing to file suit to adjudicate parentage.

THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING FATHER’S WRIT OF HABEAS CORPUS PETITION SEEKING IMMEDIATE POSSESSION OF THE CHILD BECAUSE FATHER ESTABLISHED HIS RIGHT TO POSSESSION AND THERE WAS NO EVIDENCE THAT FATHER’S POSSESSION POSED A SERIOUS IMMEDIATE THREAT TO THE CHILD’S PHYSICAL OR EMOTIONAL WELFARE. In re Guerrero, 440 S.W.3d 917 (Tex. App.—Amarillo 2014, orig. proceeding) (06/13/14). Facts: A 2012 order named Mother and Father as joint managing conservators of the Child with Mother taking primary custody and Father routinely exercising visitation and paying child support. Because

43 Mother worked two jobs, often on overnight shifts, maternal Grandmother was the person who took the Child to and from school, helped him with homework, prepared meals, took care of his health, arranged social outings, and other general parenting tasks. Mother unexpectedly passes away in January 2014. Afterward, Grandmother filed a petition to modify the parent-child relationship seeking to be named the Child’s sole managing conservator and for Father to be named possessory conservator. Father filed his plea to the jurisdiction and a writ of habeas corpus seeking immediate possession of the Child. Following a hearing, the trial court determined that Grandmother had standing to sue, rendered temporary orders appointing Father and Grandmother as the Child’s temporary joint managing conservators, and denied Father’s petition for writ of habeas corpus. Father filed a petition for writ of mandamus in the COA arguing that the trial court abused its discretion by denying Father’s petition for writ of habeas corpus. Holding: Writ of mandamus conditionally granted Opinion: A trial court must hear an application for writ of habeas corpus concerning the proper legal custodian of a child and make its determination solely on the basis of who, at that time, has the bare legal right to custody. Absent evidence of a dire emergency, the trial court is required to issue a writ of habeas corpus once the relator has demonstrated the bare legal right to possession of the child; at that point, issuance of the writ should be automatic, immediate, and ministerial. The trial court has no discretion to deny the writ and issue any other temporary order unless the party opposing the return of the child to the one seeking it presents evidence raising a serious immediate question concerning the welfare of the child. Moreover, in a habeas corpus proceeding, the trial court is not permitted to consider the child’s best interest and may not go beyond the immediate welfare of the child. Generally, in a habeas corpus proceeding, if the right to possession of a child is governed by a court order, the trial court shall compel the return of a child if it finds that the party seeking relief is entitled to possession of the child under the court order. However, Texas case law precedent holds that, in conservatorship orders appointing a managing conservator and possessory conservator, the death of the managing conservator ends the conservatorship order and no longer constitutes a valid, subsisting court order in the context of a petition for writ of habeas corpus. The rationale is that because the managing conservator parent has died, someone must take immediate possession of the child, and the possessory conservator parent’s right of immediate possession is superior to others’ rights. Given that the prior order here appointed both Father and Mother as joint managing conservators—the applicability of the aforementioned precedent is questionable. Nevertheless, by rationale extension, a surviving joint managing conservator parent’s rights to possession of a child are superior to others’ rights. Thus, without regard to the survival of a prior order for habeas corpus purposes, in the event of the death of the managing conservator of the child, the surviving parent has a right to possession of the child, and a trial court should enforce this right by issuance of a writ of habeas corpus. Here, Father is both the Child’s surviving managing conservator and the Child’s surviving parent. As against all others, either status gives Father superior rights to possess the Child in light of Mother’s death. Thus, the record establishes Father’s bare legal right to possession of the Child unless the evidence before the trial court raised a serious, immediate question concerning the Child’s welfare in Father’s care. In that regard, the trial court heard that Father had provided financial support for Child since the parents’ separation, maintained regular visitation with the Child, and stayed involved with the Child’s school functions. Additionally, Father acted as the Child’s primary caregiver for several years before the parents’ separation, and no evidence suggested that any harm ever came to the Child as a result of Father’s care. Moreover, Father maintained a steady job and reported that he had an adequately stocked two-bedroom house where he and the Child could live comfortably. Although the trial court heard that the Child suffered from mild autism and may need time to adjust to Father as his primary caretaker and that Father may spend too much time playing video games, such evidence does not rise to the level of a “dire emergency” or an “imminent danger” to the Child’s physical or emotional well-being. That Grandmother may be a better choice as primary caretaker for the Child at this time is of no consequence to the habeas corpus analysis. Because Father established his superior legal right to possession of the Child, and in the

44 absence of evidence raising a serious, immediate question concerning the Child’s welfare, the trial court had a ministerial duty to order the return of the Child to Father and lacked any discretion to deny Father’s petition for writ of habeas corpus.

NOTHING IN TEXAS FAMILY CODE SECTION 155.033 PREVENTED COURT OF CONTINUING, EXCLUSIVE JURISDICTION FROM GRANTING PETITIONS TO CHANGE CHILDREN’S NAMES DESPITE THE FACT THAT THE CHILDREN AND THE PARTIES NO LONGER RESIDED IN TEXAS In re C.A.W.P., Nos. 13-13-00628-CV and 13-13-00629-CV, 2014 WL 3803148 (Tex. App.—Corpus Christi 2014, pet. filed 10/13) (mem. op.) (07-31-2014). Facts: The trial court rendered an order in the Mother’s and Father’s SAPCR, which established custody and child support obligations for the couple’s two Children. Subsequently, Mother and the Children moved to Utah. Mother filed two petitions with the Texas trial court to change the names of the Children to remove the hyphen between their two last names. Father responded to the petition, arguing that the trial court lacked continuing jurisdiction over the children because their home state was Utah. After a hearing, the trial court granted the petitions and ordered the Children’s names changed. Father appealed, and, citing Texas Family Code Section 155.033(b) and (c), he argued that the trial court erred in granting the name changes because none of the parties had resided in Texas for “over five years.” Holding: Affirmed Opinion: Per Texas Family Code Section 155.001(a), a court acquires continuing, exclusive jurisdiction over matters in connection with a child after the rendition of a final order. Texas Family Code Section 155.033(a) allows a court with continuing, exclusive jurisdiction to modify orders regarding conservatorship, possession, and support of that child. Section 155.033(b) states that a Texas court may not exercise its continuing, exclusive jurisdiction to modify managing conservatorship if a child’s home state is not Texas. Section 155.033(c) states that a Texas court may not exercise its continuing, exclusive jurisdiction to modify possessory conservatorship or possession of or access to a child if Texas is not the child’s home state and all parties have established residency outside of Texas. It was undisputed that the trial court rendered a final order in the parties’ SAPCR, which established the trial court was the court with continuing, exclusive jurisdiction. Nothing in Section 155.033(b) or (c) prevents the court with continuing, exclusive jurisdiction from granting a name change. Thus, the trial court did not abuse its discretion in granting Mother’s petitions.

FATHER FAILED TO SHOW DILIGENT ATTEMPT TO LOCATE MOTHER BEFORE SERVING HER BY PUBLICATION; FATHER’S CITATION FAILED TO SUBSTANTIALLY COMPLY WITH TFC 102.010(c) Curley v. Curley, ___ S.W.3d ___, 2014 WL 3867798 (Tex. App.—El Paso 2014, no pet.) (08-06-14). Facts: Father and Mother were married and had one Child. After Father was arrested for domestic violence, Mother moved to Wisconsin with the Child. Soon after Mother’s move, Father filed for a divorce, which included a SAPCR. Father made several unsuccessful attempts to serve Mother with the petition at Mother’s ex-husband’s address in Wisconsin. Father’s attorney then filed an affidavit in support of service by publication. The citation was published in the town in Wisconsin, where Father believed Mother to be. The citation used the IMOMO Father and Mother portion of the caption but did not include the ITIO Child portion. The citation referred to the pending divorce proceeding but made no

45 reference to either the child or the SAPCR. After a final hearing, the trial court entered a default decree of divorce, granting Father significant rights, including the right to designate the primary residence of the Child. Seventeen days after the order was entered, Father travelled to Wisconsin and took possession of the Child from Mother. Father located the Child by looking for Mother’s address on the internet. Mother appealed, arguing that the citation failed to provide notice of the SAPCR and that Father failed to diligently attempt to locate her prior to serving her by publication. Holding: Reversed and Remanded Opinion: TFC 102.010 provides the form by which a citation by publication should “substantially” follow. In order to provide effective notice through publication, the citation must include the correct caption of the case and provide notice of the relief sought. Here, Father did not include the portion of the caption referring to the Child, and the citation made no reference to the Child or to the fact that the suit was a SAPCR in addition to a divorce. Father’s citation did not substantially comply with TFC 102.010. Moreover, citation by publication is only appropriate after a diligent effort to locate the whereabouts of a party without success. Here, Father’s efforts included telephone calls, emails to Mother’s ex-husband in Wisconsin, and attempts to serve Mother at her ex-husband’s address. However, Father had other means of locating Mother that he failed to attempt. Father did not contact Mother’s family in Germany or her ex-mother-in-law in Wisconsin. Father was an authorized user on Mother’s telephone account, but he did not contact the phone company to obtain Mother’s information. Additionally, Mother easily located her own correct address through an internet search. Father’s last attempt to locate Mother through an internet search was more than three months before the citation was published. Father knew where the Child went to school and that the Child took the bus to and from school, but Father did not use that information to attempt to locate Mother. Finally, Father had no difficulty locating Mother seventeen days after the default judgment, in order to use the trial court’s order to take possession of the Child. Father was not sufficiently diligent in attempting to locate Mother prior to service by publication. Therefore, the service was improper, the trial court lacked personal jurisdiction over Mother, and the default judgment was void.

FATHER’S EXECUTION OF A WAIVER IN DIVORCE PROCEEDING DID NOT PRECLUDE HIM FROM LATER BRINGING A RESTRICTED APPEAL; TRIAL COURT ERRED IN DEVIATING FROM THE CHILD SUPPORT GUIDELINES WITHOUT MAKING THE REQUIRED FINDINGS OF TFC 154.130 In re Marriage of Butts, 444 S.W.3d 147 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (08-19-14). Facts: Mother and Father were married in Florida and had one Child. The Parties separated, and Mother moved to Texas with the Child. Mother filed a petition for divorce in Texas. Father signed a waiver, stating that Father entered an appearance as a substitute for going to court and that he agreed the court could make decisions in the case without further notice to him. At trial, Mother testified she and Father lived together until the Child was 8 years old. There was no evidence Father had any continuing relationship with the Child after the separation. Mother also testified that a few months after Mother moved, she discovered her car was missing. She was informed by the police that the car had been repossessed because Father had stopped making payments on it. Mother testified that she had net resources of $600 per month. After the final hearing, at which Father did not appear, the trial court signed a final decree of divorce that appointed Mother SMC and ordered Father to pay child support of $800 per month. Nearly six months later, Father filed a notice of restricted appeal. Father argued there was no evidence to support the trial court appointing Mother SMC or ordering Father to pay $800 per month in child support. Mother argued that Father was not entitled to a restricted appeal because he had participated in the trial proceedings by signing the waiver.

46

Holding: Affirmed in Part / Reversed and Remanded in Part Opinion: A restricted appeal is available to a party who (1) filed the restricted appeal within six months after the judgment of which he complains; (2) was a party to the underlying suit; (3) did not participate in the hearing that resulted in the judgment of which he complains; and (4) showed that error is apparent on the face of the record. Signing a waiver of service alone is not sufficient to constitute participation for the purposes of a restricted appeal. Here, the COA held that although the language of the waiver was broad, it was a waiver of service and nothing more. Father did not participate in the hearing and was able to bring a restricted appeal. Judicial estoppel does not apply to an appeal in the same case as an alleged prior inconsistent statement. Additionally, a party seeking a restricted appeal is not required to show diligence or lack of negligence before his complaints may be heard. Thus, Father’s execution of the waiver of service in this case did not preclude him from having his restricted appeal heard. Texas Family Code Section 154.125 provides the statutory guideline that that court shall presume that for one child, 20% of the obligor’s net resources is in the best interest of the child. Texas Family Code Section 154.068 provides that in the absence of evidence of a party’s resources, the court shall presume the party has an income equal to minimum wage for a 40-hour week. Texas Family Code Section 154.130 states that if a court deviates from the child support guidelines, the court must make specific findings regarding the net resources of the obligor, the percentage applied to those resources, and the reasons for the deviation. Here, there was no evidence of Father’s net resources. Thus, the minimum wage presumption should have been used in the calculation of Father’s child support obligation. Assuming the trial court determined that the evidence supported deviating from the guidelines, the trial court was required to make the specific findings per TFC 154.130. Because the trial court did not make the required findings, it erred in ordering Father to pay $800 per month in child support. When determining whether the appointment of one parent as SMC is in the best interest of a child, a court may consider all relevant factors. Here, there was little evidence specifically addressing the best interest of the child as it related to conservatorship; however, there was evidence that Father lived in a different state from Mother and the Child, that he was unconcerned about leaving Mother without transportation, and that he waived service to the divorce proceedings rather than participating in decisions relating to conservatorship, child support, and other matters significant to the child’s well-being. Thus, trial court did not abuse its discretion in appointing Mother SMC of the Child.

TRIAL COURT ERRED IN GRANTING GREAT-AUNT TEMPORARY POSSESSION OF THE CHILD, WHEN GREAT-AUNT INTERVENED WITHOUT FIRST SEEKING LEAVE OF COURT, AND TRIAL COURT FAILED TO FIRST DETERMINE WHETHER GREAT-AUNT HAD STANDING TO INTERVENE. In re H.R.L., ___ S.W.3d ___, 2014 WL 4259444 (Tex. App.—El Paso 2014, orig. proceeding) (08-2914). Facts: From the age of a toddler until she was about 6 years old, the Child lived primarily with GreatAunt, who was a licensed counselor and the Clinical Director of the Juvenile Justice Center in El Paso. Mother went to school in New Mexico and visited the Child most weekends. Father also visited the Child on weekends under the supervision of Great-Aunt. When in El Paso, Mother lived with her mother, in the same neighborhood as Great-Aunt and the Child. Mother and Great-Aunt had an argument because GreatAunt did not approve of Mother’s dating habits. Great-Aunt threatened to file suit to obtain custody of the Child. Soon afterwards, Mother moved the Child out of Great-Aunt’s home.

47 A few months later, the OAG initiated an action to establish the Child’s paternity and to enter an order for payment of current and retroactive child support. Great-Aunt filed a petition to intervene seeking to be named possessory conservator without first seeking leave of court to intervene. GreatAunt also filed a motion for temporary orders. Mother filed a plea in abatement and plea to the jurisdiction, asserting Great-Aunt lacked standing to intervene. The trial court set a hearing to hear both Mother’s pleas and Great-Aunt’s motion. At the hearing, Mother objected that Great-Aunt failed to seek leave of court, but the trial court overruled the objection. Great-Aunt was the only witness to testify at the hearing. The trial court recessed the hearing after granting Great-Aunt’s motion to confer with the Child and ordered a social worker to meet with the Child in the presence of Great-Aunt. At the conclusion of that meeting, the social worker determined that the Child had bonded to Great-Aunt. Approximately one month later, the hearing was set to continue, but the parties instead met at the courthouse to attempt to reach an agreement. After the negotiations, the hearing proceeded. Father and Great-Aunt indicated that an agreement had been reached, but Mother stated that she no longer agreed, Great-Aunt had not met her burden to establish standing, and Mother had five witnesses to present. The trial court, entered temporary orders giving Great-Aunt access and possession per the standard possession order. Mother filed a petition for writ of mandamus. Holding: Petition for Writ of Mandamus Conditionally Granted Opinion: A party seeking conservatorship of a child must have standing to seek such relief. A party’s lack of standing deprives a trial court of subject matter jurisdiction and renders any subsequent orders void. Texas Family Code Section 102.004(b) provides that a grandparent or other family member with leave to intervene may do so if there is proof that appointment of a parent as SMC or both parents as JMC would significantly impair the child’s physical health or emotional development. This burden is not established by evidence that a non-parent would be a better custodian of the child or that the non-parent has an ongoing relationship with the child. In addition, a judge may not infringe on a parent’s fundamental right to make decisions about a child merely because the judge believes a “better” decision could be made. The Texas Supreme Court held in Troxel that before relief can be granted, a non-parent must establish that the parent is unfit, the child’s health and well-being would suffer, and the parent intended to exclude the non-parent’s access entirely. Here, Great-Aunt did not seek leave of the trial court to intervene. The plain language of TFC 102.004(b) states that “the court may grant … leave to intervene” in a pending suit. Because Great-Aunt did not obtain leave to intervene, the trial court lacked authority to grant relief in favor of Great-Aunt before determining whether she had standing. Even if the trial court’s temporary order could be construed as an implicit determination that GreatAunt had standing, no evidence supported that ruling. Great-Aunt presented no evidence that the Child suffered any impairment due to Mother’s actions. Additionally, Great-Aunt admitted that even after removing the Child from Great-Aunt’s care, Mother continued to allow Great-Aunt contact with the Child. Thus, Great-Aunt did not establish standing under TFC 102.004(b) and did not satisfy the Troxel requirements.

48 COA STAYED ALL TRIAL PROCEEDINGS IN SAME-SEX DIVORCE, DESPITE THE INVOLVEMENT OF A CHILD, BECAUSE THE SAME ISSUES PRESENTED WERE PENDING BEFORE THE TEXAS SUPREME COURT. In re Marriage of A.L.F.L and K.L.L, 2014 WL 4357457, 04-14-00364-CV (Tex. App.—San Antonio 2014, no pet.) (08-29-14). Facts: This proceeding involved a same-sex divorce and a child born during the Parties’ legally recognized marriage. The trial court denied Appellant’s plea to the jurisdiction, which led to an interlocutory appeal. The State of Texas filed a “Motion to Stay or Abate Appeal” because the issues presented were similar to issues in two cases pending before the Texas Supreme Court. The COA abated the appeal pending further order of the court. However, because the trial court continued to conduct proceedings in the matter, Appellant filed an emergency motion to lift the abatement for the limited purpose of granting an emergency stay. Holding: Stay Granted Corrected Order (08-25-14): (J. Barnard and J. Alvarez) At issue in this appeal, among other things, was the trial court’s subject-matter jurisdiction. Therefore, the COA stayed all proceedings in this matter, including matters relating to this interlocutory appeal and trial on the merits. Dissenting Opinion (08-29-14): (J. Martinez) Texas Civil Practice and Remedies Code Section 51.014 provides that “[a]n interlocutory appeal …, other than an appeal … in a suit brought under the Family Code, stays the commencement of a trial in the trial court pending resolution of the appeal.” The Legislature likely intended to exempt interlocutory appeals in family cases from the stay provision because a child could be involved. Here, the case involved a child, who was born during the Parties’ legally recognized marriage. Because the length of the abatement was unknown, a stay of these proceedings could not be in the best interest of the Child.

CALIFORNIA JUDGMENT DECLARING TWO MEN BOTH FATHERS OF THE CHILD WAS PROPERLY REGISTERED IN TEXAS AND ESTABLISHED THEIR PATERNITY; JURY VERDICT GRANTING NON-BIOLOGICAL FATHER SMC AND BIOLOGICAL FATHER PC WAS PROPER WHEN CONSIDERING THE BEST INTEREST OF THE CHILD Berwick v. Wagner, ___ S.W.3d ___, 2014 WL 4493470, 01-12-00872-CV (Tex. App.—Houston [1st] 2014, no pet. h.) (09-11-14). Facts: Berwick and Wagner, two men, began a relationship in 1994. In 2003, they married in Canada, and in 2005, they registered in California as domestic partners. Formalizing the relationship was important to Berwick because he was a big advocate of gay marriage rights. The couple discussed starting a family and sought to understand what having same-sex parents could mean to their future children. In 2005, they entered a gestational surrogacy agreement with a married woman in California. The surrogate was impregnated with Berwick’s sperm and a donated ova. After the Child was born, a California court entered an order adjudicating the parentage of the Child. The California order declared that both Berwick and Wagner were the legal parents of the Child, and the surrogate and her husband were not the Child’s legal parents. The Child’s last name was the two men’s names hyphenated. When the Child was born, Berwick and Wagner each took 12-week leaves from work and hired a full-time nanny. Afterwards, Wagner returned to work, and Berwick became able to work from home. For three years, they lived as a happy, loving family.

49 In 2008, Berwick told Wagner that he was beginning to question his sexual orientation, and he could “no longer succumb to his homosexual tendencies.” In an undelivered letter, Berwick called Wagner his best friend and soul mate but also said that homosexuality was a mental illness. Berwick’s vernacular and vocabulary changed over the next few weeks and began saying that homosexuality was “sinful and evil and disgusting and vile and that homosexuals have Satan within them.” He also said that the Child should have a mother instead of a nanny and told Wagner that he was “not really [the Child’s] father.” Berwick went on a weekend retreat, and when he returned, he had decided that he was not really gay. Berwick told Wagner that Berwick’s mother and sister considered homosexuality to be a sin and had advised Berwick to accept nothing less than 100% custody and to kick Wagner out of the home. Berwick began researching how to divorce Wagner and told Wagner that he wanted to change the Child’s last name to remove Wagner’s name. Wagner filed a SAPCR seeking an order naming both Fathers JMCs. Wagner registered the California judgment as a foreign judgment under the Texas Family Code. Berwick counterclaimed, seeking SMC. The trial court concluded that confirmation of the California judgment was proper and that Wagner had standing to bring his SAPCR. The COA confirmed the trial court’s order regarding the California judgment and Wagner’s standing, and the Texas Supreme Court denied Berwick’s petition for review. The Parties entered a Rule 11 Agreement to preserve the status quo for the Child. Both Fathers and the Child stayed in the home together, but each Father would alternately spend a weekend away, giving the other exclusive parenting time. Subsequently, Berwick began dating a woman, and the two were married less than a year later. Because Berwick’s new wife’s house was close by, Wagner suggested that Berwick move in with her and come visit the Child at the family home. Instead, Berwick and his new wife moved into the family home with Wagner and the Child. This living arrangement was contentious. Berwick and his wife put padlocks on some interior doors, took pictures of the whole house, and filed a false police report against Wagner. Wagner became convinced that Berwick was attempting to build a false record against him, so he started carrying a tape recorder with him every day to record their interactions. Berwick was not cooperative in co-parenting. Berwick identified himself to the Child’s school as the Child’s only father. Berwick purchased secondary health insurance coverage for the Child, and then changed all of the Child’s healthcare providers and provided his wife’s contact information to the Child’s medical providers to keep Wagner from receiving communications. Berwick fired the nanny without notifying Wagner. Berwick told Wagner that if he “really loved” the Child, he would leave. The case went to trial before a jury. After the two-week trial, based on the jury’s findings, the trial court ordered appointed Wagner as SMC and Berwick as PC. The trial court denied Berwick’s request to change the Child’s name. Berwick filed an accelerated appeal. Holding: Affirmed Opinion: Berwick first argued that the California order was unenforceable because it was contrary to Texas law. The U.S Constitution requires states to give full faith and credit to judicial proceedings of other states. “The full faith and credit clause requires that a valid judgment from one state be enforced in other states regardless of the laws or public policy of other state. California had jurisdiction to adjudicate the parentage of the Child, the California judgment declared Wagner to be a legal parent, and this judgment was properly registered in Texas. Berwick next argued that the trial court abused its discretion by excluding evidence that he was the Child’s biological father. Although parents are favored over non-parents, Texas law does not distinguish biological parents from a parent who acquired “parent” status through other legal channels, such as adoption. In addition, Berwick failed to show that the exclusion of evidence that he was the biological father of the Child led to an improper judgment. Wagner’s counsel noted that “we are not naïve enough to think that some of these jurors haven’t figured it out.” For example, the jury had heard recordings of Berwick telling Wagner that he needed to “get his own family,” “his own little boy.”

50 Berwick further argued that the trial court improperly struck five potential jurors based on their religious beliefs. A challenge for cause is proper if a potential juror will base his decisions on previously formed feelings rather than the evidence and cannot be fair and impartial. During the individual questioning of each of the five struck jurors, they confided that they could not base their verdict on the evidence because of their strong feelings about homosexuality generally. Berwick additionally argued that the evidence was legally and factually insufficient to support the jury’s findings. Joint managing conservatorship generally provides the conservators with joint decision making authority. Here, Berwick’s actions showed that he was not amenable to working cooperatively with Wagner to make joint decisions about the Child’s residence, education, medical needs, or therapeutic needs. Berwick refused to encourage and accept a positive parent-child relationship between Wagner and the Child. While the jury agreed that both Berwick and Wagner were good parents, only Wagner showed the ability to co-parent the Child by accepting a positive parent-child relationship with the other parent and prioritizing the Child’s welfare. Finally, Berwick argued that the trial court erred in failing to submit the issue of changing the Child’s name to the jury. However, there was no disputed issue of fact to present to the jury. In addition, Berwick did not argue that changing the Child’s name was in the Child’s best interest.

KENTUCKY WAS THE CHILDREN’S HOME STATE BECAUSE THEY HAD LIVED THERE FOR MORE THAN SIX MONTHS, AND KENTUCKY HAD ISSUED A PROTECTIVE ORDER TO PROTECT MOTHER AND THE CHILDREN FROM FATHER’S DOMESTIC VIOLENCE. In re Busaleh, No. 06-14-00073-CV, 2014 WL 4978642 (Tex. App.—Texarkana 2014, orig. proceeding) (mem. op.) (10-07-14). Facts: Mother and Father moved to Saudi Arabia. Ten years later, Mother and the couples’ two Children travelled to Texas under the pretense of visiting Mother’s parents. Subsequently, Father moved to Texas, and Mother and the Children fled to Kentucky to escape Father’s domestic violence. The State of Kentucky issued an emergency protective order against Father, granted temporary possession of the Children to Mother, and prohibited Father from having contact with the Children. Before the protective order expired, Father filed for divorce in Texas. Less than a month later, Kentucky issued an order of protection preventing Father from coming within 500 feet of Mother or the Children. Mother filed a special appearance and a plea to the jurisdiction in the Texas divorce proceedings. Although it was uncontested that the Children had lived in Kentucky for the previous 8 months, the trial court denied Mother’s special appearance and plea to the jurisdiction. In addition, in spite of the protective order still in effect, the trial court issued temporary orders that appointed Mother and Father JMCs of the Children, provided a visitation schedule requiring Mother to deliver the Children to Father, and ordered Mother to move back to Texas or face contempt. Mother filed a petition for writ of mandamus, arguing that the finding that Texas was the Children’s home state was an abuse of discretion. Holding: Writ of Mandamus Conditionally Granted Opinion: The UCCJEA governs jurisdiction in child-custody proceedings. Texas Family Code Section 152.201 confers jurisdiction to the state that was the child’s home state on the date of the commencement of proceedings or within six months before the commencement. It was uncontested that the Children had resided with Mother for nearly eight months leading up to the commencement of the proceedings. The fact that the Children periodically visited their grandparents in Texas was not determinative. Further, Texas Family Code Section 152.102(4) defines “child custody proceeding” to include “protection from domestic violence.” Thus, Kentucky had already established continuing, exclusive jurisdiction by issuing the protective order. Moreover, Texas had not acquired continuing, exclusive jurisdiction because the only prior SAPCR filed in Texas had been dismissed for want of jurisdiction.

51

NEW YORK DECREE PROVIDING SUPPORT FOR ADULT DISABLED CHILD COULD NOT BE MODIFIED BY TEXAS COURT BECAUSE FATHER CONTINUED TO RESIDE IN NEW YORK AND THE PARTIES HAD NOT AGREED TO ALTER JURISDICTION In re Martinez, ___ S.W.3d ___, 2014 WL 5151282, 04-14-00536-CV (Tex. App.—San Antonio, orig. proceeding) (10-15-14). Facts: Mother and Father married in New York and had a Child. Subsequently, the Parties divorced in New York, and a judgment was rendered based on a settlement agreement. Father was obligated to provide child support until the Child was emancipated, which was defined as when the Child reached the age of 21 or completed 4 years of college, whichever came last, but in no event past the age of 22. A few years later, the Child was in a car accident that left her nearly quadriplegic. Mother asked Father to modify the agreement to allow her to move to Texas with the Child for the Child’s health and well-being. Father agreed, and Mother and the Child moved. The Child never went to college. Shortly before the Child’s 21st birthday, Mother filed a petition in New York to modify child support based on the Child’s disability. The New York trial court dismissed Mother’s motion with prejudice because New York law does not provide for support for adult disabled children, and Mother had failed to establish sufficient change in circumstances to warrant the relief requested. Mother then filed an “original” SAPCR in Texas seeking the same relief. Father filed a plea to the jurisdiction and special appearance arguing Texas lacked both subject matter and personal jurisdiction. Mother argued that the petition was “original” because (1) by the time she filed in Texas, Father’s obligation to provide support under the New York order had terminated, and thus no order was in effect; and (2) the New York order had never been registered in Texas, so Mother’s petition was the first suit filed. The trial court dismissed both Father’s plea to the jurisdiction and his special appearance and rendered temporary orders providing support for the Child. Father filed a petition for writ of mandamus and emergency stay. Holding: Writ of Mandamus Conditionally Granted Opinion: The Uniform Interstate Family Support Act (“UIFSA”), which has been adopted by all 50 states, governs modifications of a child support order rendered by another state and is codified in TFC Chapter 159. UIFSA was designed to “maintain a ‘one-order-at-a-time world,’” and to ensure that only one controlling order would be enforced consistently across the 50 states. Under UIFSA, a court that renders a support decree maintains continuing, exclusive jurisdiction until (1) the obligor, obligee, and child leave the rendering state, or (2) the parties consent “in a record or in open court” to alter the jurisdiction. There is no other means by which a state with continuing, exclusive jurisdiction can lose that jurisdiction. Moreover, Texas Family Code Section 159.611(c) provides that a Texas court may not modify any aspect of a child support order, including the duration of support, that may not modified under the law of the issuing state. Texas Family Code Section 159.611(e) provides that in a modification proceeding, the law of the state that issued the original order governs the duration of the child support obligation. TFC Chapter 4, Subchapter F governs obligations for support of minor or adult disabled children. Texas Family Code Section 154.309(c) provides that a court with continuing, exclusive jurisdiction of a SAPCR involving a disabled child retains that jurisdiction even after the child becomes an adult. Texas Family Code Section 154.305 only allows a party to file an original SAPCR if no other court has continuing, exclusive jurisdiction of the child. New York law does not provide support for adult disabled children. The original support order was rendered in New York. Father continued to reside in New York, and the Parties had not consented to alter the jurisdiction. Thus, the duration of the support order was governed by New York law, and New York

52 did not lose its continuing, exclusive jurisdiction over the Child after the Child became an adult. Mother was unable to file an “original” SAPCR because New York had continuing, exclusive jurisdiction, whether or not the foreign judgment was registered in Texas. To allow a party to circumvent UIFSA by failing to register a judgment would not comport with the purpose of UIFSA to “maintain a ‘one-order-ata-time world.’”

AGREED ORDER ADJUDICATING PARENTAGE ENTERED IN TEXAS VOID BECAUSE MEXICO WAS THE CHILD’S HOME STATE; VOID ORDER WAS SUBJECT TO COLLATERAL ATTACK. In re S.A.H., ___ S.W.3d ___, 2014 WL 6462580, 14-13-01063-CV (Tex. App.—Houston [14th Dist.] 2014, no pet. h.) (11-18-14). Facts: When the Child was 5-years-old, Mother filed an original petition in Houston to adjudicate parentage in Houston, Texas. Attached to her petition was an affidavit indicating that the Child had lived in Mexico since birth and that Father resided in, and could be served in, Houston. After genetic testing, the trial court entered an agreed order adjudicating Father as the Child’s father and providing orders for conservatorship, possession and access, child support, and health care expenses. The orders included a finding that the trial court had “jurisdiction of this case and of all the parties” and that the parties had waived making a record. Additionally, the order indicated that the Child’s county of residence was Mexico and included work and home addresses for each parent: Mother’s in Mexico, and Father’s in Houston. About 5 years later, Mother filed a SAPCR and a motion to enforce child support. Father answered and filed a petition to declare the original order void for lack of subject-matter jurisdiction. After an evidentiary hearing, the trial court entered an order declaring the original order void. Mother appealed. Holding: Affirmed Opinion: Subject-matter jurisdiction in child custody suits is governed by the UCCJEA. Texas has jurisdiction to make an initial child custody determination if Texas is the home state of the child, if no other state has jurisdiction, or if a court of the home state of the child has declined jurisdiction. Subjectmatter jurisdiction cannot be conferred by consent, estoppel, or waiver. Here, although there was no indication in the record that the trial court considered evidence relating to subject matter jurisdiction at the original hearing, it was clear from Mother’s petition and attached affidavit that the Child had only lived in Mexico since birth and had never lived in Texas. Therefore, Mexico was the Child’s home state at—and for more than six months prior to—the commencement of the proceedings. Further, Mother alleged in her original petition that there was no case in which a Mexican court had declined to exercise jurisdiction.

MOTHER’S EX-GIRLFRIEND UNABLE TO ESTABLISH THIRD-PARTY STANDING BECAUSE MOTHER HAD NEVER ABDICATED HER PARENTAL DUTIES TO EXGIRLFRIEND DURING THEIR RELATIONSHIP. In re S.D., No. 02-14-00102-CV, 2014 WL 6997169 (Tex. App.—Fort Worth 2014, no pet. h.) (mem. op.) (12-11-14). Facts: Girlfriend and Mother were in a same-sex relationship. During the relationship, Mother gave birth to the Child through artificial insemination. During the relationship Girlfriend was the sole provider for the family, and Mother stayed at home with the Child. Girlfriend testified that the couple had plans for Girlfriend to legally adopt the Child. After Mother and Girlfriend separated, Girlfriend filed a suit seeking

53 JMC of the Child and based her claim to standing on Texas Family Code Section 102.003(a)(9). The trial court granted Mother’s motion to dismiss the suit for lack of standing. Holding: Affirmed Opinion: This COA has held that grandparents lack standing under Texas Family Code Section if the actual parents had not abdicated their parental duties to the grandparents. For example, in one case, although the children had lived with the grandparents for an extended period, the children’s mother also lived there. Although there had been evidence that the grandparents had performed day-to-day caretaking duties, there was no evidence that the mother did not also care for the children. Here, although Girlfriend and Mother lived together up until a month before these proceedings, and Girlfriend provided care for the Child, there was no evidence that Mother ever relinquished or abdicated her permanent care, control and possession of the Child to Girlfriend.

TRIAL COURT ERRED IN MODIFYING EXISTING ORDERS FOR CONSERVATORSHIP, POSSESSION, AND CHILD SUPPORT, AND IN CHANGING THE PERSON WITH THE RIGHT TO DETERMINE THE CHILDREN’S RESIDENCE, WITHOUT PROPER NOTICE TO FATHER AND HOLDING A FULL EVIDENTIARY HEARING. In re Bustos, No. 04-14-00755-CV, 2014 WL 7339259 (Tex. App.—San Antonio 2014, orig. proceeding) (mem. op.) (12-23-14). Facts: Mother and Father divorced, and a final decree was entered providing for possession access and conservatorship of their two Children. Subsequently, a modification order was entered continuing the parents as JMCs and designating Father as the parent with the exclusive right to designate the Children’s primary residence. In addition, Mother was ordered to pay child support and was granted possession per a standard possession order. About three years later, Mother did not return the Children after one of her periods of possession. After unsuccessfully attempting to locate mother, Father filed an application for writ of attachment to have the Children returned and a motion to modify to appoint him SMC and to limit Mother’s access to the Children. The trial court signed an ex parte restraining order and an order directing the clerk to issue a writ of attachment, which also set a hearing on the writ of attachment and Father’s request for temporary orders. Mother appeared at the hearing with the Children, who were interviewed by the judge and an amicus attorney outside the presence of the parents. Over Father’s attorney’s objection that Mother had no pleadings on file, the trial court denied Father’s request for SMC, ordered the Children to be placed with Mother and granted her the exclusive right to designate the Children’s primary residence. The trial court also appointed an amicus attorney and ordered supervised visitation for Father. Finally, the trial court suspended Mother’s child support obligation and ordered Father to begin paying child support. Father filed a petition for writ of mandamus, arguing the trial court erred when it sua sponte modified the prior order when there were no pleadings on file requesting such relief. Holding: Writ of Mandamus Conditionally Granted Opinion: Temporary orders may not have the effect of changing the party with the right to designate the primary residence of a child, except in limited circumstances. Here, because the challenged order modified an existing order for conservatorship, access, and support, Father was entitled to notice and a full evidentiary hearing. The only matters set for hearing were Father’s application for writ of attachment and his motion for temporary orders seeking to limit Mother’s access and possession. Mother had not

54 filed or served any pleadings. Without proper notice, Father had no reason to be prepared to present evidence in his defense or to rebut Mother’s testimony. The COA noted that while Mother had claimed that she could not return the Children to Father because of fears of abuse, there must be pleadings to support such an order. Further, Mother could have contacted the proper authorities to report suspected abuse or neglect.

SAPCR

SPECIAL APPOINTMENTS APPOINTMENT OF AMICUS ATTORNEY WAS IMPROPER BECAUSE THE COST TO THE PARTIES OUTWEIGHED THE FUTURE BENEFIT TO THE CHILDREN’S BEST INTEREST; STRIKING MOTHER’S SOCIAL STUDY AS A SANCTION FOR FAILURE TO PAY FEES OF AMICUS ATTORNEY WAS IMPROPER BECAUSE AMICUS ATTORNEY SHOULD NOT HAVE BEEN APPOINTED Hutchins v. Donley, No. 11-12-00204-CV, 2014 WL 2767122 (Tex. App.—Eastland 2014, no pet.) (mem. op.) (06-12-14). Facts: Mother and Father filed cross-SAPCRs. The parties agreed to the appointment of an attorney ad litem and that if they could not choose a counselor for the children, the attorney ad litem would decide. Later, the parties signed a mediated settlement agreement, in which they agreed that the attorney ad litem would serve as an amicus attorney and would decide two specific issues: (1) the children’s counselor, and (2) the children’s school. The amicus made these two recommendations to the court but, afterwards, continued to be involved in the case. Prior to the temporary orders hearings, the amicus attorney recommended to the trial court that Mother’s rights and duties be limited and Father’s rights and duties be expanded. The trial court agreed with the amicus attorney’s recommendations and issued temporary orders reflecting the recommendation. Mother filed two separate motions to have the amicus attorney removed from the case, but the trial court denied both motions and ordered that both parties pay additional fees to the amicus attorney. Mother filed a motion for a social study, which the trial court granted with the condition that Mother pay for the social study in full. Mother paid for the social study, which was timely completed. However, Mother did not pay all of the amicus attorney’s fees. The trial court held a hearing on the amicus fees and the possibility of imposing sanctions on Mother for failure to pay fees. Mother pointed out that there had been no order entered appointing the amicus attorney and that the amicus and already completed her duties under the parties’ agreement. Mother testified about her financial status and that she had had to borrow money from family, friends, and her church in order to pay her legal fees and costs. Her family and friends did not want to pay any more money to the amicus attorney because they had already paid her $22,000. The trial court found that Mother had the ability to pay the amicus attorney and informed Mother that her social study would be struck if she did not pay the amicus attorney’s fees by the end of that week. Mother did not pay, and the social study was struck. The trial court noted that it did not believe striking the report would take that much away from the jury because it did not recommend a primary conservator. In her offer of proof, Mother established that the author of the social study would have recommended that the parties split their time with the children equally or that, “if push came to shove,” Mother should be appointed primary conservator. At the jury trial, the amicus attorney recommended that Father be appointed primary conservator. The jury found that Father should be granted exclusive right to designate the primary residence of the children. Mother appealed.

55 Holding: Reversed and Remanded Opinion: Texas Family Code Section 107.021(a)(1) gives a trial court the authority to appoint an amicus attorney in a suit in which the best interests of a child are at issue. Per TFC 107.021(b), a court shall give due consideration to the ability of the parties to pay reasonable fees to an amicus attorney and balance the child’s interest against the costs to the parties. Here, the trial court gave consideration to the parties’ ability to pay for an amicus attorney and determined that Mother had the ability to pay. However, the trial court failed to perform the balancing test required by TFC 107.021(b) prior to appointing the amicus attorney. At the time the trial court entered an order appointing her, the amicus attorney had already satisfied her duties under the initial agreement of the parties, which included informing the trial court of the amicus attorney’s opinion of what arrangement would be in the best interest of the Children. Therefore, at the time the trial court entered the order appointing the amicus attorney, the cost of the amicus attorney greatly outweighed any future benefit to the children’s best interest. The trial court abused its discretion by entering the order appointing the amicus attorney. The trial court also erred in ordering Mother to pay the amicus attorney’s fees because (1) at the time of the trial court’s order, the amicus had already completed her duties under the initial agreement (for which Mother had already paid); (2) Mother had revoked her consent to the amicus attorney’s appointment; and (3) there was no court order in place at the time the amicus attorney’s services had been rendered. Therefore, because the trial court erred in appointing the amicus attorney and in requiring Mother to pay the amicus attorney’s fees, the trial court also erred in sanctioning Mother by striking the social study. Furthermore, the trial court’s errors clearly led to an improper judgment. The author of the social study recommended that “if push came to shove,” Mother should be appointed the primary conservator of the children, and the amicus attorney recommended to the jury that Father be appointed the primary conservator. Without the amicus attorney’s recommendation and with the recommendation of the author of the social study, the jury could have designated Mother as the primary conservator. Therefore, the COA held that Mother was entitled to a new trial.

SAPCR

ALTERNATIVE DISPUTE RESOLUTION BECAUSE THE PARTIES’ MSA WAS ONLY A “PARTIAL” MSA, TRIAL COURT DID NOT ABUSE ITS DISCRETION IN ADDRESSING ISSUES NOT ADDRESSED BY THE MSA; Scruggs v. Lin, 443 S.W.3d 373 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (08-19-14). Facts: Father and Mother divorced. Both were doctors with sizable incomes. The final divorce decree appointed them JMCs of their three Children and ordered Father to pay child support. Later, Father filed a SAPCR, claiming that the Children lived with him most of the time. Father sought to be awarded the exclusive right to designate the Children’s primary residence and to terminate his child support obligation because Mother had voluntarily relinquished actual care, control, and possession of the children. Mother filed a counter-petition, seeking retroactive child support and an increase in Father’s child support. Father then filed an amended petition, seeking child support from Mother but no longer seeking to terminate his own child support obligation or alleging that Mother had voluntarily relinquished actual care, control, and possession. The Parents entered into an MSA that required Mother to pay child support and provided that the trial court would determine any retroactive child support that may have been due. The MSA also addressed the payment of fees due to the Children’s court-appointed counselor and the amicus attorney.

56 The trial court entered a final order in the SAPCR that incorporated the MSA and rendered judgment against Father for retroactive child support, as well as attorney’s fees and costs. Father appealed, arguing that the trial court’s order was contrary to the MSA, that TFC did not require an award of attorney’s fees against him and that the trial court erred in awarding Mother retroactive child support because the court should have terminated his child support obligation as of the date of his filing of the modification suit. Holding: Affirmed in part / Reversed and Remanded in Part Opinion: A trial court generally does not have discretion to decline to enter judgment on or deviate from an MSA. Here, per the Parties’ MSA, each was responsible for 50% of the counseling fees, Father would pay to Mother any fees she paid on his behalf, and Father would pay the counselor directly for any remaining fees he owed her. Mother testified that Father owed her $5,600. Thus, the trial court’s award of $5,230 to Mother for counseling fees was not contrary to the MSA. The MSA was labeled as a “partial” MSA. It specifically provided that the trial court would address the issue of child support arrears. However, it did not limit the court from considering other issues not expressly covered by the MSA. Because the MSA did not address coordinator fees, the trial court did not abuse its discretion in awarding those fees against Father. Texas Family Code Section 157.167 provides “If the court finds that the respondent has failed to make child support payments, the court shall order the respondent to pay the movant’s reasonable attorney’s fees and all court costs in addition to the arrearages.” TFC 156.167(c) gives a trial court the discretion to waive the requirement for the payment of attorney’s fees if it finds good cause to do so. Father claimed good cause existed because both parties had failed to make child support payments. However, Father admitted that after being ordered to pay child support, he only actually made one or two payments. He claimed to have received advice from his attorney telling him he did not have to pay, but he also admitted that on one of the child support checks, he had “maybe” written the word “unfair.” Trial court did not abuse its discretion in awarding attorney’s fees against Father under TFC 157.167, and even if “good cause” existed to waive the requirement, the trial court was not obligated to do so.

PARTIES COULD NOT CONTRACTUALLY FIX VENUE THROUGH AN MSA; TRIAL COURT WAS REQUIRED TO GRANT MOTHER’S MOTION TO TRANSFER PROCEEDINGS TO THE COUNTY WHERE THE CHILD RESIDED In re Lovell-Osburn, ___ S.W.3d ___, 2014 WL 4931302, 14-14-00486-CV (Tex. App.—Houston 2014, no pet. h.) (09-30-14). Facts: In their divorce, Mother and Father were named JMCs of their two Children. Mother was granted the exclusive right to designate the primary residence of the Children within Harris County or contiguous counties. Subsequently, Mother sought to modify the geographical restriction. While in mediation, Father claimed to be concerned that if the geographical restriction were modified, Mother could move outside of Harris County, and the trial court, which had the benefit of historic knowledge of the Parties’ litigation, would lose its jurisdiction over the Children. The Parties entered an MSA that expanded the geographical provision to include the three additional counties to which Mother was considering moving, but also included a provision that any related future legal proceedings would be heard in Harris County. The trial court entered a judgment on the MSA. Two years later, Mother filed a SAPCR in Harris County and concurrently filed a motion to transfer venue to Burleson County, where she and the Parties’ minor child had been living for at least six months. The trial court, after an evidentiary hearing, denied Mother’s motion to transfer. Mother filed a petition for writ of mandamus, claiming that transfer to Burleson County was mandatory and the trial court was required to grant her motion to transfer.

57 Holding: Writ of Mandamus Conditionally Granted Majority Opinion: (J. Christopher, J. McCally) This case involves two competing sections of the Texas Family Code. Texas Family Code Section 153.0071 entitles a party to a compliant MSA to “judgment on the [MSA] notwithstanding Rule 11, [TRCP], or another rule of law.” Texas Family Code section 155.201 provides that a court of continuing, exclusive jurisdiction “shall,” upon timely motion, transfer a proceeding to the county where the child has resided for at least six months. This TFC venue provision is mandatory, and transfer is a ministerial duty of the trial court. Venue selection cannot be contracted by parties unless otherwise provided by statute. The Parties did not dispute that the Child had lived in Burleson County for at least six months or that the Parties MSA included a venue provision agreeing that future disputes would be heard in Harris County. In In re Lee, the Texas Supreme Court addressed the question of whether a trial court may deny a motion to enter a judgment on a compliant MSA based on a best interest analysis. The Texas Supreme Court did not reach the question of whether Texas Family Code 153.0071 requires a court to enter judgment on a compliant MSA under any and all circumstances, even if the agreement was illegal. Thus, the holding in Lee does not require a trial court to enter judgment on an MSA containing a void venue provision or to enforce such a judgment. To hold otherwise would open the door to parties including other various provisions in MSAs that would otherwise be contrary to public policy. The fact that the Parties entered an MSA purporting to contractually agree to fix venue in Harris County was not itself sufficient to override the mandatory venue provision of the TFC. Dissenting Opinion: (J. Jamison) In Lee, the Texas Supreme Court concluded that the public policy that “the amicable resolution of child-related disputes should be promoted forcefully” trumped the TFC mandate that “[t]he best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” The dissent questioned, “[h]ow can the majority say that the policy at issue here, establishing venue in the county of a child’s primary residence, is more important that the policy trumped in Lee, the best interest of the child (specifically, in Lee, best interest concerns that were raised about the child residing with a registered sex offender)?” The dissent opined that the majority viewed the question in Lee too narrowly. Further, no rule of statutory construction could account for allowing Texas Family Code Section 153.0071 to be controlling over the best interest mandate of Texas Family Code Section 153.002 but not the venue mandate of Texas Family Code Section 155.201. Further, allowing parties to contractually restrict venue does not foreclose the possibility that a provision of an MSA could be deemed unenforceable for criminal illegality. Following the Texas Supreme Court’s holding in Lee, the venue provision in the Parties’ MSA trumped the venue rule of TFC 155.201(b).

58

SAPCR

PARENTAGE TRIAL COURT DID NOT ERR BY VACATING A GENETIC TESTING ORDER AND APPLYING PATERNITY BY ESTOPPEL EVEN THOUGH THE TEST WAS ALREADY PERFORMED AND VERIFIED PATERNITY BECAUSE THE TEST RESULTS WERE NOT ADMITTED BEFORE THE TRIAL COURT VACATED THE TESTING ORDER. In re C.M.H.G., No. 02-12-00074-CV, 2014 WL 1096011 (Tex. App.—Fort Worth, 2014, no. pet.) (per curiam) (mem. op.) (03/20/2014). Facts: Mother gave birth to child in 2008 and executed an acknowledgment of paternity identifying Father as the child’s father. Mother died in a car accident shortly thereafter. Afterward, Father had primary responsibility for the care and custody of the child for the first eighteen months of the child’s life. In 2009, the child’s maternal grandmother (“Grandmother”) took possession of the child, threatened Father with a gun, and demanded that Father pay her $10,000.00 for the return of the child. In 2010, the trial court issued a child support review order finding Father to be the child’s father with the duty to support the child. Thereafter, Father filed a petition to enforce the order and an emergency request to take physical custody of the child. In response, Grandmother denied that Father was the child’s father and asked for genetic testing to determine parentage. Initially, the trial court granted Grandmother’s request for genetic testing. However, the trial court subsequently determined under TFC 160.608 that Grandmother’s conduct estopped her from denying Father’s paternity and entered a final order vacating the prior genetic testing order and adjudicating Father as the child’s father. Although the court’s opinion does not say so directly, it appears that that genetic testing was performed and that the test excluded Father as the child’s biological father. Grandmother appealed arguing, among other things, that TFC 160.008 does not estop a party’s denial of paternity when genetic testing has already established paternity. Holding: Affirmed. Opinion: TFC 160.608 codifies paternity by estoppel and allows a court to deny a motion for genetic testing if the conduct of the mother [or in this case Grandmother] estops her from denying parentage. Here, because the order for genetic testing was an interlocutory order, the trial court retained authority to vacate the order at any time before rendering a final judgment. And although Grandmother argued that TFC 160.608 does not apply when genetic testing has already established paternity, the test results were not admitted into evidence before the trial court vacated the testing order. Therefore, the trial court did not abuse its discretion by vacating the genetic testing order.

TEXAS FAMILY CODE § 160.201(a)(1)’S RULE THAT A MOTHER-CHILD RELATIONSHIP IS ESTABLISHED BY A WOMAN GIVING BIRTH TO THE CHILD IS NOT REBUTTABLE BY GENETIC TESTING RESULTS. In re M.M.M., 428 SW3d 389 (Tex. App.—Houston [14th Dist.] 2014, pet. filed 07/02) (04/10/2014). Facts: Mother, an unmarried woman, conceived twin Children via assisted reproductive technology using Father’s sperm and an unknown donor’s eggs. Consequently, Mother was not the Children’s genetic mother. Mother and Father did not enter into a written agreement regarding their intentions regarding the assisted reproduction. After Mother gave birth to the Children, Father filed suit seeking a declaratory

59 judgment that he was the Children’s father and that Mother had no parental relationship with, or standing to pursue rights to, the Children because she was solely a gestational carrier. Both parties moved for summary judgment. Afterward, the trial court signed an order finding that Mother was the mother of the Children as a matter of law. Additionally, the trial court denied the portion of Father’s summary judgment motion as to Mother’s relationship to the Children, but granted the portion declaring Father to be the Children’s father. Father appealed, arguing that Texas Family Code Section 160.201(a)(1), the applicable statute establishing a mother-child relationship by a woman giving birth to the child, is not conclusive but merely creates a presumption of maternity that may be rebutted with genetic evidence. Holding: Affirmed Opinion: Texas Family Code Section 160.201 provides the methods by which the parent-child relationship can be established between the woman and a child (Texas Family Code § 160.201(a)), and a man and a child (Texas Family Code § 160.201(b)). Texas Family Code § 160.201(a)(1) provides that the mother-child relationship is established between a woman and a child by the woman giving birth to the child. The crux of Father’s argument is that because certain situations establishing paternity are rebuttable by genetic testing, the rule that maternity is established by giving birth is also rebuttable by genetic testing. Specifically, Texas Family Code § 160.201(b)(1) provides that the father-child relationship is established between a man and a child by an unrebutted presumption of the man’s paternity of the child under Texas Family Code § 160.204. Texas Family Code § 160.204, in turn, defines five situations in which a man is presumed to be a child’s father. Texas Family Code § 160.204 also provides that a presumption of paternity under these defined situations may be rebutted by (1) an adjudication of parentage; or (2) the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity. In contrast, nothing in the plain language of Texas Family Code § 160.201(a)(1) refers to a rebuttable presumption of maternity when a woman gives birth to a child. If the Legislature had intended that giving birth creates merely a rebuttable presumption, it could have included such language in the statute, as it did relative to the provisions for establishing paternity. There is only one exception when a woman who gives birth to a child conceived via assisted reproduction is considered only a “gestational mother” lacking parental rights. Texas Family Code Chapter 160, subchapter I provides that woman and “the intended parents” may enter into a written agreement whereby the woman will give birth to a child conceived via assisted reproduction, using the egg of the intended mother or another donor, and the woman relinquishes all parental rights. To be enforceable, the gestational agreement must satisfy certain requirements and be validated by a court. Here, there was no agreement satisfying those requirements. Texas Family Code Chapter 160, subchapter I demonstrates that when the Legislature chose to override Texas Family Code § 160.201(a)(1) and define a situation in which a woman who gives birth to a child is not the mother, it expressly did so. Accordingly, Texas Family Code § 160.201(a)(1)’s rule that the mother-child relationship is established by a woman giving birth is not rebuttable by genetic testing results.

ALTHOUGH FATHER FILED HIS SUIT TO ESTABLISH PATERNITY MORE THAN FOUR YEARS AFTER THE CHILD’S BIRTH, MOTHER AND PRESUMED FATHER ARE EQUITABLY ESTOPPED FROM RELYING ON TFC 160.607(a)’s STATUTE OF LIMITATIONS DEFENSE. Quiroz v. Gray, 441 SW3d 588 (Tex. App.— El Paso, 2014, no. pet.) (04/25/2014). Facts: In October 2002, Mother began dating and engaging in sexual relations with Father. Unbeknownst, to Father, Mother was married to Vernier. After Mother became pregnant, she informed Father that he

60 was the Child’s father. Following the Child’s birth on September 15, 2003, Mother, Father, and the Child lived together for three years during which time Father provided financial support for the Child. Afterward, Mother and Father separated, and Father lost contact with the Child. In March 2007, the OAG filed a petition seeking to establish Father’s paternity. Father requested genetic testing, which the trial court ordered and which conclusively proved Father’s paternity. Mother subsequently filed a petition to establish Father as the Child’s father. During the proceedings, the trial court granted Father access to the Child permitting Father and the Child to reestablish a parent-child relationship. Father also began supporting the Child financially. Thereafter, Mother filed a petition to terminate Father’s parental rights. In November 2010, Father responded by filing a petition to adjudicate his parentage of the Child. In February 2011, Mother moved to dismiss Father’s petition, alleging for the first time, that Father was not the Child’s father and that Vernier was the Child’s presumed father. Vernier then filed a petition to intervene and a plea to the jurisdiction arguing that he was the Child’s presumed father and therefore Father lacked standing to pursue his paternity suit under TFC 160.607. The trial court denied Vernier’s intervention and adjudicated Father as the Child’s Father. Mother and Vernier appealed arguing that the trial court erred in denying Vernier’s plea to the jurisdiction because Father filed his petition to adjudicate parentage more than four years after the Child’s fourth birthday. Holding: Affirmed Opinion: Under TFC 160.607(a), a proceeding to establish parentage on behalf of a child with a presumed father must be commenced no later than the child’s fourth birthday. However, a party in a paternity action may be equitably estopped from relying on an otherwise applicable statutory bar to recovery. The application of estoppel in paternity actions is aimed at achieving fairness as between the parents by holding both the mother and father to their prior conduct regarding the paternity of the child. Here, the record established, among other things, that:  Mother represented to Father that he was the Child’s father while concealing the material fact that she was married to Vernier and engaging in sexual intercourse with him;  during the time frame in which Mother became pregnant, she never raised the question of Father’s paternity;  Father attended prenatal care, and was present at the Child’s birth;  Father always believed he was the Child’s father;  Father and child maintained a recognized and operative parent-child relationship;  Father bonded with the Child, and provided financial support for the Child;  Father did not know that Mother had engaged in relations with another man;  Mother encouraged Father to participate in the Child’s life as his father; and  from the Child’s birth on September 15, 2003 until February 2011, Mother never disputed Father’s paternity and in fact consistently identified Father to be the Child’s father in her pleadings. Under these facts, and given the conclusive results of the 2007 paternity test, Father had no reason to seek adjudication of his parentage in a timely manner. Consequently, the trial court did not err in denying Vernier’s plea to the jurisdiction because the doctrine of equitable estoppel precluded Mother and Vernier from relying on limitations as a defense.

61

SAPCR

CONSERVATORSHIP STATUTE ALLOWS TRIAL COURT TO APPOINT GRANDMOTHER JOINT MANAGING CONSERVATOR WITH THE EXCLUSIVE RIGHT TO DETERMINE CHILDREN’S RESIDENCE ALONG WITH MOTHER AND FATHER AS NON-PRIMARY JOINT MANAGING CONSERVATORS. Compton v. Pfannenstiel, 428 S.W.3d 881 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (2/13/14). Facts: Grandmother sought conservatorship of Child 1 and Child 2. Grandmother testified that Mother used and sold drugs, placed children in dangerous situations, neglected children, failed to adequately feed or care for children, and did not meet children’s medical needs. Grandmother further testified that Mother had been arrested four times during the six months prior to trial, and this allegation was corroborated at trial by a police officer. Father testified that Mother was not a fit parent and that she did not adequately feed the children. Father and Mother shared a drug problem, and Father was incarcerated for burglary for four years. Father testified that he believed Grandmother’s conservatorship was necessary. Two school counselors also testified that they had concerns that Mother was not meeting the children’s nutritional needs and that the children had an excessive number of absences. Mother’s father and sister testified on her behalf, denying that she had a drug problem or neglected the children. Mother’s father and sister did, however, acknowledge that Mother did not have employment or housing. The trial court awarded joint conservatorship of the children to Grandmother, Mother, and Father. The trial court granted Grandmother the exclusive right to determine the children’s primary residence. Mother appealed. Holding: Affirmed. Opinion: Mother challenged the trial court’s appointment of Grandmother as a joint managing conservator of Mother’s children since parents are presumptively the managing conservators of their children. A trial court must appoint a child’s parents to be joint managing conservators, or one parent as the sole managing conservator, unless it concludes that appointment of the parent or parents would not be in the best interest of the child, because the appointment would significantly impair the child’s physical health or emotion development. The statue applies to the appointment of a non-parent in addition to both parents. The COA found that the evidence in this case satisfied the statutory threshold, including evidence of Mother’s drug use, recent criminal arrests, and extreme neglect of her children. The trial court reasonably could find that the record demonstrated significant impairment of the children’s health and emotional development. Father acceded to the necessity of the grandparent conservatorship in the children’s interest. Therefore, the COA held that the trial court was within its discretion in naming Grandmother as a joint managing conservator to protect the children’s physical health and emotional development.

62 TRIAL COURT HAD SUFFICIENT EVIDENCE TO FIND THAT IT WAS IN THE CHILDREN’S BEST INTEREST TO SPLIT CUSTODY. In re K.B.K., No. 11-12-00155-CV, 2014 WL 1285784 (Tex. App.—Eastland, 2014, no. pet.) (mem. op.) (03/27/2014). Facts: In 2010, the trial court signed a decree of divorce appointing Mother and Father as JMCs of the parties 3 children (2 older daughters and a younger son) and ordered that Mother would decide the children’s primary residence. Mother and the children initially remained in Texas, but moved to Colorado after Mother developed a relationship with and eventually married another man. Father filed a petition to modify the custody arrangement to have the Children returned to Texas. Following a trial, the trial court ordered that the 2 older daughters would reside with Father in Texas, but that the younger son would continue to reside with Mother in Colorado. Father appealed, arguing that the trial court erred because there was no evidence supporting split custody. Holding: Affirmed. Opinion: Texas’s policy favoring keeping children together during periods of possession is simply a factor the trial court considers in deciding what is in the child’s best interest. Here, during the proceeding, the trial court interviewed the two older daughters in chambers, and the daughters expressed their desire to live with Father in Texas in order to maintain strong ties with family and friends in Texas. The trial court also heard evidence that, among other things, the younger son had adjusted well to his new home and school in Colorado, had bonded with his step father, and was very attached to his new puppy. Accordingly, the trial court had sufficient evidence to find that in was in the Children’s best interest to split custody.

SAPCR

POSSESSION AND ACCESS IF POSSESSION ORDER DEVIATES FROM STANDARD POSSESSION ORDER, FINDINGS MUST BE REQUESTED WITHIN 10 DAYS OF HEARING AND PURSUANT TO TEXAS FAMILY CODE § 153.258. Pickens v. Pickens, 2014 WL 806358, 12-13-00235-CV (Tex. App.—Tyler 2014, no pet.) (02-28-14) Facts: In final divorce decree, trial court appointed Mother and Father joint managing conservators. The trial court also ordered that, failing mutual agreement, Father was to have possession of the child fourteen days out of every twenty-eight days, and must designate his days of possession at least two weeks in advance. Mother filed a request for findings of fact and conclusions law and a past due notice after the court failed to file findings of fact and conclusions of law. Mother appealed arguing that the trial court abused its discretion by entering a possession order that deviated from the standard possession order without a sufficient showing that such order was in the best interest of the child. Holding: Affirmed. Opinion: Mother’s request for findings of fact and conclusions of law was made pursuant to Rules 296 and 297 of the Texas Rules of Civil Procedure. And these rules do not apply here. Mother did not request the trial court to set forth the reasons for deviating from the standard possession order, and she did not cite

63 Section 153.258 of the Texas Family Code. Moreover, Mother’s request was filed on June 6, 2013, more than ten days after the April 23, 2013 final hearing. Accordingly, the trial court was not required to enter findings and conclusions under that section of the family code.

TRIAL COURT ERRED IN GRANTING PERMANENT INJUNCTION WHEN NEITHER PARTY HAD PLEADED FOR SUCH RELIEF, AND THE EVIDENCE DID NOT ESTABLISH IMMINENT HARM OR IRREPARABLE INJURY In re A.A.N., No. 02-13-00151-CV, 2014 WL 3778215 (Tex. App.—Fort Worth 2014, no pet.) (mem. op.) (07-31-14). Facts: In their divorce decree, Mother and Father were appointed JMCs of their three Children. Just over a year after the divorce, Mother filed a SAPCR and application for temporary restraining order and protective order. Father filed a counter-petition in the SAPCR. Mother testified that the oldest child found racy pictures of Father’s girlfriend on the internet. Mother was disgusted by the pictures and was concerned that Father’s girlfriend was a bad influence on the Children. The trial court issued temporary orders enjoining the parties from having unrelated members of the opposite sex stay the night during that party’s period of possession and enjoining the Children from having any contact with Father’s girlfriend. After a final hearing, the trial court denied both parties’ motions but ordered the two injunctions survive the finality of the judgment. Father appealed, arguing that the trial court abused its discretion by granting a permanent injunction for which Mother had not pleaded, that the evidence was legally and factually insufficient to support the injunctive relief, and that the injunction prohibiting overnight stays by members of the opposite sex was overly broad and not supported by the evidence. Holding: Reversed and Rendered; Affirmed as Modified Opinion: To be entitled to a permanent injunction, a party must show (1) a wrongful act, (2) imminent harm, (3) irreparable injury, and (4) the absence of an adequate remedy at law. A permanent injunction must not grant relief which is not requested or be more comprehensive or restrictive than justified by the pleadings, the evidence, and the usages of equity. Here, Mother did not request a permanent injunction. Further, even if Mother had pleaded for the permanent injunctions, Mother did not show that the Children suffered harm or that there was an imminent risk of harm. Mother’s concern that Father’s girlfriend was a bad influence on the Children was insufficient to support an injunction prohibiting Father’s girlfriend from having any contact with the Children. Neither party introduced evidence relating to the impact on the Children of having an overnight guest or that the Children would be imminently harmed or suffer irreparable injury if unrelated members of the opposite sex stayed overnight. The COA further noted that the injunction did not allow for an exception for the Children’s friends from school. Thus, there was insufficient evidence to support granting a permanent injunction forbidding overnight guests.

64 RESTRICTION THAT MOTHER BE “OFF WORK” AND “PRESENT” DURING HER PERIODS OF EXTENDED SUMMER VISITATION WAS UNDULY BURDENSOME AND UNNECESSARILY RESTRICTIVE. In re H.D.C., ___ S.W.3d ___, 2014 WL 6464331, 14-13-00976-CV (Tex. App.—Houston [14th Dist.] 2014, no pet. h.) (11-18-14). Facts: At the time of their divorce, Mother and Father had one teenage Daughter and one grade-schoolaged Son. Mother and Father signed an agreed order that appointed both parents as JMC, with Mother having the exclusive right to designate the primary residence of the Children. Father had a standard possession order and was ordered to pay child support. After the divorce, the Daughter began engaging in self-destructive behavior. About a year after the divorce, Father observed hygiene issues. A few months later, Father discovered that the Daughter had posted inappropriate photos of herself online. About a year after that, Father learned that the Daughter had begun cutting herself. Father discussed the problems with Mother, who did not think they needed to be addressed until after CPS recommended therapy. Both of the Children were struggling in school, and Mother’s solution was to do the Children’s homework for them. Mother was issued an arrest warrant as a result of the Children’s truancy while in her care. Mother denied many of the problematic behaviors, including a claim that the Daughter had taken 12 Benadryl pills at once while in Mother’s care. Father filed a SAPCR. The trial court issued temporary orders giving Father the exclusive right to designate the Children’s primary residence and ordering Mother to pay child support. A trial was held several months later, at which the Children’s therapist testified about the Children’s behavioral changes since residing primarily with Father. In its final order, the trial court granted Father the primary right to designate the Children’s primary residence, ordered Mother to pay Child support, and imposed a restriction that Mother be “off work” and “present” during her extended summer possession of the Children. Mother appealed arguing that that restriction was ambiguous and broader than necessary to serve the Children’s best interests. Holding: Reversed and Remanded in Part; Affirmed in Part Opinion: A possession order must be stated in clear and unambiguous language and must be specific enough to permit the court to enforce the judgment by contempt. Here, the requirement that Mother be “off work” and “present” during her extended period of possession was clear and unambiguous. Thus, the order was not vague. However, a restriction on possession should not exceed that which is required to protect the best interest of the child. Here, the trial court found that the Children had been left unsupervised many times while Mother was at work and that the Daughter engaged in self-destructive behavior while unsupervised. The evidence supported an order that the Children be supervised while in Mother’s possession. In addition, Mother’s brother had a marijuana conviction and abused prescription drugs. Mother’s mother lost her daycare license because of Mother’s brother’s activities, indicating Mother’s mother permitted those activities at the daycare while children were present. Therefore, evidence supported not allowing Mother’s mother or brother to supervise the Children. However, requiring Mother to be “off work” and “present” during her month of extended summer visitation was unduly burdensome and unnecessarily restrictive. A restriction that Mother arrange for a suitable adult to supervise the Children in her absence would have been sufficient to protect the best interests of the Children.

65

SAPCR

CHILD SUPPORT THE INCOME OF A PARENT’S SPOUSE IS NOT TO BE CONSIDERED WHEN CALCULATING A PARENT’S CHILD SUPPORT OBLIGATION. In re Bromberg, 03-13-00778-CV, 2014 WL 258998 (Tex. App.—Austin 2014, orig. proceeding) (mem. op.) (1/14/14). Facts: Mother and Father were the parent of Child. In 2009, the trial court signed an order giving each parent two consecutive weekdays of possession and alternating weekend possession and providing that during the time each parent had possession of Child, that parent had the right to designate Child’s primary residence within County. Mother got married in 2012, and in 2013 she filed a petition to modify the 2009 order. Neither Mother nor Father alleged that the present circumstances might significantly impair Child’s physical or emotional well-being. The trial court signed a temporary order naming Mother and Father as JMCs, ordering Mother to pay Father child support, and including the standard possession order set out in the family code. Furthermore, the temporary order stated that during each parent’s time of possession, that parent had the exclusive right to designate the child’s primary residence within County. Mother filed a petition for writ of mandamus relief. Holding: Conditionally granted in part and conditionally denied in part. Opinion: Mother argued that the trial court erred in ordering her to pay child support because there was no evidence of her available resources or that the order was necessary for the child’s safety and welfare. The court may provide for temporary support for the safety and welfare of the child. The income of a parent’s spouse is not to be considered when calculating a parent’s child support obligation. The COA held that in this case, there was no evidence that Mother had any net resources from which she could pay child support. There was evidence about her husband’s income, but that evidence could not be used in calculating her support obligation.

TRIAL COURT WAS WITHIN ITS DISCRETION IN ORDERING RETROACTIVE CHILD SUPPORT EFFECTIVE ANY DATE AFTER OBLIGOR WAS SERVED WITH CITATION IN MODIFICATION PROCEEDINGS In re B.R.F., ___ S.W.3d ___, 2014 WL 3943828 (Tex. App.—El Paso 2014, no pet.) (08-13-14). Facts: Mother and Father were divorced with two Children. In the original order, Mother was ordered to pay child support. A few years later, Father filed a SAPCR, seeking a modification of conservatorship and child support. Mother was served with the citation about a month later. The final order was signed about a year after Father had filed his petition, and it modified Mother’s child support obligation effective January 1 of that year—many months before the order was signed. Mother appealed, challenging the trial court’s jurisdiction to “back date” an order for child support. Holding: Affirmed Opinion: TFC 156.401(b) allows a court to award child support that is retroactive to the earlier of (1) the date of service of citation, or (2) the date of the obligor’s appearance. Here, Mother was served more than

66 a week before the date on which the court ordered the child support obligation to begin. The trial court was within its discretion in choosing this date.

BOYFRIEND’S PAYMENT OF MOTHER’S MONTHLY EXPENSES DID NOT OPEN UP BOYFRIEND’S FINANCIAL INFORMATION FOR DISCOVERY IN MODIFICATION PROCEEDING In re Jones, No. 03-14-00223-CV, 2014 WL 3562764 (Tex. App.—Austin 2014, orig. proceeding) (mem. op.) (09-24-14). Facts: Mother and Father divorced after having one Child. Subsequently, Father filed a SAPCR. Father served a request for disclosure and interrogatories on Mother. Mother responded and listed Boyfriend as a person with knowledge of relevant facts, identified Boyfriend as her boyfriend, and stated that Boyfriend paid her monthly expenses, which amounted to $4000 per month. Father then served a notice of intention to take Boyfriend’s oral deposition and included a request for the production of documents. Father requested that Boyfriend produce (1) any business records for any business entity owned by Boyfriend, including financial information and tax returns, (2) all personal banking and financial records, (3) wage and earnings records, and (4) all personal income tax returns since Mother’s and Father’s divorce. Boyfriend filed a motion to quash and a motion for protection. After a hearing on Boyfriend’s motions, the trial court announced that Boyfriend was required to appear for deposition and to produce all the requested documents, except for tax and bank records. Boyfriend filed a petition for writ of mandamus. Holding: Writ of Mandamus Conditionally Granted Opinion: The scope of discovery is within a trial court’s discretion; however, the trial court must make an effort to impose reasonable discovery limits. While Texas Family Code Section 154.062 provides that the court should include all of Mother’s income, including gifts, Texas Family Code section 154.069 provides that when calculating Mother’s net resources, the court cannot include the net resources of her Boyfriend. Therefore, the financial information requested by Father of Mother’s Boyfriend was not relevant to the proceedings.

MOTHER FAILED TO CARRY HER BURDEN TO SHOW THAT FATHER “CONSCIOUSLY CHOSE” TO REMAIN UNDEREMPLOYED In re Reddick, ___ S.W.3d ___, 2014 WL 5388162, 01-12-00576-CV (Tex. App.—Houston [1st Dist.] 2014, no pet. h.) (10-23-14). Facts: Mother and Father were divorced, and Father was ordered to pay $2000 a month child support for the couple’s three Children. Father was also awarded ownership of a business he owned with his brother that sold and serviced measurement equipment for the surveying and construction industry. Father paid child support for three years before he began missing payments or paying reduced amounts. Shortly after Father began falling behind on his payments, he sought to have the OAG review his child support obligation. The OAG recommended that his obligation be reduced to $300 per month. Mother contested the confirmation of the review order, and Father hired an attorney to amend his petition and request temporary orders reducing his support. The trial court denied the request for temporary orders and proceeded to a bench trial. At trial, Father testified that his business was closely tied to the construction industry and the housing market, and that after Hurricane Ike, “business started tapering off slowly but surely.” Father was having difficulty making payroll and paying vendors, and the landlord locked the business out of its

67 premises for failure to pay rent. Father stopped doing business and negotiated a sale of most of his assets to a competitor. At least one vendor had filed a collection suit. In 2009, Father’s net income was $18,949, and in 2010, it was $10,219. Father attempted to get a job with the company who purchased his business, but that company did not have an opening suitable for Father’s skills. Father continued to look for a job in his industry, but was unsuccessful. He began working for his wife’s landscaping company for minimum wage and had plans to go to truck-driving school. Mother testified that it was her opinion that Father could make “upwards of $75,000 to $100,000 a year at least” because that is what he made during marriage. On cross-examination, Mother admitted that she had not worked for Father’s company since about 2006, three years before the “business started tapering off” per Father’s testimony. Mother testified that she knew what Father was “capable of” but offered no further explanation of how Father could improve his financial situation. Mother produced no evidence of Father’s education or work experience. Ultimately, the trial court found Father was intentionally underemployed and signed an order lowering the child support to $1875 per month. Father appealed, arguing that the trial court erred in finding him to be intentionally underemployed and that even if Mother established he was intentionally underemployed, Father presented sufficient rebuttal evidence to preclude the trial court from using his potential income, rather than his actual income in calculating child support. Holding: Reversed and Remanded Opinion: A court may apply the child support guidelines to an obligor’s earning potential, rather than actual earnings, if it established the obligor consciously chose to be un- or underemployed. When an obligor offers proof of his or current wages, the obligee then bears the burden of showing the obligor is intentionally un- or underemployed. Then, the burden shifts to the obligor to offer evidence in rebuttal. The court must also consider reasons for an obligor’s un- or underemployment, such as an active but unfruitful pursuit of employment, economic conditions, or intentional un- or underemployment to gain further education. Here, Father introduced evidence that he sold his business only after it was deeply in debt, was pursued legally by creditors, and was locked out of its premises for failure to pay its lease. Mother produced no evidence of Father’s educational background or work experience. Father’s resume, which he introduced into evidence, showed he had a high school education and several years in sales experience before starting his business, which ultimately failed. Father tried to get a job with the company that bought his business and with at least a dozen other companies. He finally began working for his wife’s landscaping business making minimum wage. In addition, Father had plans to go to truck driving school and was planning to start a job as a truck driver three months after the trial. Mother’s testimony that Father was capable of “more than mowing yards” was insufficient to carry her burden to show that Father consciously chose to be underemployed.

REGISTRATION OF ISRAELI CHILD-SUPPORT ORDER VACATED BECAUSE FATHER ESTABLISHED THAT HE HAD NOT BEEN PROPERLY SERVED WITH PROCESS AND THAT THE ISRAELI COURT LACKED PERSONAL JURISDICTION OVER HIM. In re E.H., ___ S.W.3d ___, 2014 WL 5380088, 14-13-00622-CV (Tex. App.—Galveston 2014, no pet. h.) (10-23-14). Facts: Mother and Father married in Israel and had three Children, who were all born in Israel. Father left Mother and the Children and moved to South Carolina and, later, to Galveston, Texas. About a year after Father left, Mother obtained a judgment for child support in Israel after serving him by registered mail to South Carolina. A few years later, Father obtained a rabbinical divorce in Galveston through proceedings initiated by Mother. Father was eventually granted conservatorship of one of their Children.

68 The National Insurance Institute of Israel paid Mother a portion of the child support payments through a program with the Israeli government allowing spouses to obtain a portion of unpaid support from the government and to file suit against the non-paying spouse for the difference. Mother obtained permission from the Israeli courts to seek arrearages from Father for around $150,000 in unpaid support. The OAG filed in Galveston a notice of registration of the Israeli order and a motion to confirm the arrearages. Father contested the registration, arguing that he had never been served with process for any child support action. After a hearing, the trial court denied registration of the Israeli order, finding that Father was denied due process, was never served with process, and had no notice of the suit. The OAG appealed, arguing that the trial court was required to register the judgment under the full faith and credit clause of the U.S. Constitution and the principle of comity. In addition, the OAG argued that the trial court should have deferred to the Israeli court’s personal-jurisdiction determination, and that Father’s bald assertion that he was not served was insufficient to support that claim. Holding: Affirmed Majority Opinion: (J. Wise and J. Jamison) The Uniform Interstate Foreign Support Act (“UIFSA”) is codified in Texas Family Code Chapter 159 and provides that a party may register a child support or income-withholding order of another state or a foreign country. While the U.S. Constitution requires Texas to give full faith and credit to judgments of other states, no clear language in the statute implies that this clause extends to foreign countries. Comity is a principle under which Texas gives effect to the laws and judicial decisions of another state or jurisdiction. However, the U.S. Supreme Court has held that “due process requires that no other jurisdiction shall give effect, even as a matter of comity, to a judgment elsewhere acquired without due process.” Here, the OAG failed to present sufficient evidence that Father received proper service as required under Israeli court rules or that he received sufficient notice to comport with due process. Additionally, Texas Family Code Section 159.607(a) allows an obligor to challenge the registration or enforcement of another state’s child support or income-withholding order. The COA noted that none of the permitted defenses included a best-interest analysis. Under TFC 159.607(a)(1), a court may vacate the judgment if “the issuing tribunal lacked personal jurisdiction over the contesting party.” Under Israeli rules of civil procedure, personal jurisdiction can be established by proof of delivery by registered mail that is recorded in the court’s file. Here, the Israeli court authorized service by mail. At the final hearing, Mother’s attorney stated that summons was sent, and Mother testified that Father told her by telephone that he had received the documents. In addition, Mother confirmed that she recognized Father’s signature on the confirmation of delivery. However, no confirmation of delivery was attached to the court’s file. The certificate of service was directed to a similar but incorrect name and was sent to an address of which Father was aware but at which he did not reside. The certificate of service did not clearly identify what documents were delivered. Further, Father denied that the signature on the confirmation of delivery was his. Concurring Opinion: (C.J. Frost) The UIFSA provides eight exclusive defenses to contest the validity or enforcement of a registered judgment. If a party fails to establish one of these eight defenses, the court must issue an order confirming the judgment. The exclusive list does not include a defense on the grounds that the issuing tribunal lacked subject-matter jurisdiction or that the contesting party did not receive notice. However, a court may vacate the judgment if “the issuing tribunal lacked personal jurisdiction over the contesting party,” TFC 159.607(a)(1), or “there is a defense under the law of this state to the remedy sought,” TFC 159.607(a)(5). Under Israeli law, similar to Texas law, for the Israeli court to have had personal jurisdiction over Father, he would have had to have received proper service, waived service, or appeared in the Israeli lawsuit. In addition, federal due process requires that a defending party receive “Reasonable Notice,” which is notice that is reasonably calculated to apprise the defendant of the pendency of the action and afford the defendant an opportunity to be heard. Thus, Father would have been able to raise a defense

69 under both TFC 159.607(a)(1) and 159.607(a)(5). However, because there was sufficient evidence to establish that Father did not receive Reasonable Notice—providing him a defense under TFC 159.607(a)(5)—there was no need to address whether he received proper service of process under Israeli law.

TRIAL COURT’S PLENARY POWER IN PARENTS’ DIVORCE PROCEEDING DID NOT DETERMINE THE TRIAL COURT’S JURISDICTION TO ADDRESS THE PARENTS’ ALLEGEDLY DISABLED ADULT CHILD’S SUIT FOR CHILD SUPPORT. In re Sisk, No. 14-13-00785-CV, 2014 WL 5492804 (Tex. App.—Houston [14th Dist.] 2014, no pet. h.) (mem. op.) (10-30-14). Facts: The Parents divorced when their Child was 25 years old. The agreed final divorce decree stated that there was no child of the marriage entitled to support. Four years later, the Child filed a petition for child support, alleging that he was disabled and unable to support himself. The Parents each filed a separate answer, asserting that the Child lacked standing and asserting the affirmative defenses of statute of limitations, laches, and estoppel. Subsequently, the Parents filed a joint motion to dismiss, which was one sentence long and asked the trial court to dismiss the suit based on the pleadings. The trial court held a hearing and determined that it lacked jurisdiction because its plenary power to alter the divorce decree had expired and because the decree included a finding that there was no child entitled to support. The trial court issued findings of fact and conclusions of law and signed an order dismissing the Child’s suit. The Child appealed. Holding: Reversed and Remanded Opinion: A SAPCR is a suit affecting conservatorship, access to, support of, or the establishment or termination of a parent-child relationship and must be styled “In the interest of ____, a child.” A final order in a SAPCR must include the social security numbers and driver’s license numbers of the parties and the child. A petition for divorce must include a SAPCR if the parties are the parents of a child; however, the SAPCR and divorce are actually two separate lawsuits. A trial court obtains continuing exclusive jurisdiction over a child in connection with a SAPCR after rendering a final order. Here, nothing in the divorce decree indicated that it included a SAPCR or that the trial court considered whether the Child was a “child entitled to support.” The proceedings was not styled “In the interest of [the Child], a child.” The divorce decree did not include the social security numbers or driver’s license numbers of the Parents or the Child. The divorce decree was “agreed” and signed by the Parents but not by the Child. Thus, the divorce proceeding did not include a SAPCR, and the trial court did not consider during the divorce proceeding whether the Child was entitled to support. Further, the trial court did not obtain continuing, exclusive jurisdiction over the Child. Therefore, the Child properly filed a freestanding lawsuit under TFC 154.305, which allows him to do so because there was no court with continuing exclusive jurisdiction. Additionally, the only grounds for a defendant’s motion to dismiss are want of prosecution or lack of jurisdiction. Affirmative defenses should be raised through a motion for summary judgment, not a motion to dismiss or plea to the jurisdiction. A trial court should not issue findings of fact and conclusions of law in a summary judgment proceeding. Here, the Parents did not attach any exhibits or affidavits to their joint motion to dismiss, and the trial court issued findings of fact and conclusions of law. Thus, the motion was not a misnamed motion for summary judgment. As stated above, the trial court had subject matter jurisdiction over the suit. The Parents had no basis under TRCP or the TFC to file a motion to dismiss.

70 MOTHER FAILED TO ESTABLISH WITH ANY SPECIFICITY WHAT PORTION OF THE TRIAL COURT’S DISPROPORTIONATE DIVISION OF THE COMMUNITY ESTATE CONSTITUTED A LUMP PAYMENT OF CHILD SUPPORT OR THAT SHE WAS ENTITLED TO RECOVER FOR OVERPAYMENT WHEN THE CHILDREN LATER BEGAN RESIDING WITH HER. In re Moschopoulos, ___ S.W.3d ___, 2014 WL 5798278, 08-13-00026-CV (Tex. App.—El Paso 2014, no pet. h.) (10-31-14). Facts: At the time of Mother and Father’s divorce, they had two Children. One child was 17, and the older child was 19. The older child was disabled, requiring full supervision and assistance, and was the subject of this suit. Mother and Father’s divorce was tried to the bench in piecemeal fashion over six days. After the hearings were completed, the trial court issued a letter ruling to the parties appointing them as JMCs, with Father being granted the exclusive right to designate the primary residence of the Children. The letter ruling also divided the community estate, taking into consideration child support, house payments, and future child support all owed by Mother to Father. In addition, the trial court divided the community estate based on Father’s retirement age, the disparity of the parties’ separate estates, the disabled Child, and the fact that Father was the primary caregiver of the Children. Further, the trial court listed the assets and liabilities awarded to each spouse. No values were listed, but two exhibits identifying household furniture and furnishings of the parties were attached. The trial court confirmed separate property of the parties but did not value it. The divorce decree divided the property in conformity with the letter ruling and included a provision that Mother’s child support obligation was fully satisfied. Sixteen months after the divorce, both Children moved into Mother’s home. Mother filed suit seeking to recover excess child support. Mother contended that the division of the community estate was disproportionate in lieu of her being ordered to pay child support and that what was envisioned as a life-time support obligation ended up lasting only 16 months. Mother calculated that Father received about $87,000 more than half of the community estate, and that under the child support guidelines, she would have been obligated to pay roughly $13,000 in child support. Thus, she sought a money judgment for around $76,000. Father argued that Mother paid no child support payment at all and that her estimation of the community estate was inaccurate. The trial court denied Mother’s motion, and she appealed. Holding: Affirmed Opinion: A party who has overpaid child support may seek reimbursement; however, the obligor must prove the amount of support ordered and the amount overpaid. To prove a trial court abused its discretion in making a just and right division of the community estate, a party must establish the size of the community and what portion of the community was awarded to each party. Here, Mother did not introduce values during the divorce proceedings, yet introduced valuation evidence during these child support repayment proceedings. Additionally, in her calculations, Mother failed to take into account the mortgage on the community homestead because she did not believe it should be considered. The trial court’s letter ruling included exhibits listing assets awarded to each party but no valuations. The final decree included no values except for certain debts assessed against Mother. The trial court’s letter ruling indicated that child support was one of several factors it took into consideration in dividing the community estate. Even if the court were to accept Mother’s values presented during the child support repayment proceedings, neither the trial court nor the COA would be able to determine the size of the community estate or how disproportionate the division was. Mother failed to prove the amount of the child support award or by what amount she overpaid it.

71

SAPCR

CHILD SUPPORT ENFORCEMENT TRIAL COURT ABUSED ITS DISCRETION BY ELIMINATING FATHER’S CHILD SUPPORT ARREARAGE BASED ON MOTHER AND FATHER’S PRIOR ACCORD AND SATISFACTION AGREEMENT INCLUDING VOLUNTARY RELINQUISHMENT OF FATHER’S PARENTAL RIGHTS WHEN THE PARTIES FAILED TO OBTAIN AN ORDER ON THE AGREEMENT. In re R.K.S., No. 10-11-00403-CV, 2014 WL 1681891 (Tex. App.—Waco, 2014, no pet.) (mem. op.) (04/24/2014). Facts: In 1995, the trial court ordered Father to pay child support to Mother for the support of the couple’s two Children. By January 2001, Father had accrued a $37,529.70 child-support arrearage. On January 29, 2001, Mother and Father entered into an agreement wherein Father agreed to make a $10,000 lump-sum payment to Mother and sign a relinquishment of his parental rights in exchange for not paying past child support or future child support. After Father paid Mother the $10,000 and signed an affidavit of relinquishment of his parental rights, Mother and her husband filed a termination and adoption petition. However, Mother and her husband decided not to proceed with the termination/adoption and the trial court ultimately dismissed the case for want of prosecution. Father received no notice of the dismissal and paid no further child support. In January 2010, the OAG filed a motion to enforce child support alleging Father had a $114,747.82 child-support arrearage. Father answered and affirmatively pleaded accord and satisfaction based on the parties’ agreement. At a hearing, Mother admitted to the agreement and Father’s $10,000 payment. Following the hearing, the trial court found that the parties had entered into a valid agreement and concluded that such agreement was in the nature of an accord and satisfaction. Consequently, the trial court confirmed Father’s child support arrearage at $0 entered a judgment for that amount. The OAG appealed. Holding: Reversed and remanded Opinion: In OAG v. Scholer, 403 S.W.3d 859 (Tex.2013), the Texas Supreme Court recently held that, except for a very narrow exception not applicable here, the obligor parent may not rely on the obligee parent’s actions to extinguish his child support duty. The Family Code characterizes child support as a duty rather than a debt. A parent who owes that duty must diligently satisfy it. If he is unable to pay, he may seek a modification of the support order. If he believes his rights and his support obligations have been terminated, he should ensure a court order reflects that. But the parents’ actions, either collectively or alone, cannot affect the support duty, except as provided by statute. Here, the equities weigh in Father’s favor—Mother agreed to zero out Father’s child-support arrearage as of January 29, 2001 in exchange Father’s $10,000 lump-sum payment, which Father made and relinquishment of his parental rights. However, under Scholer, Father’s duty to support his children is not extinguished by the parties’ agreement, especially considering that the parties did not seek court approval of the agreement until approximately ten years later. Therefore, the parties’ agreement did not eliminate Father’s child support obligation accruing after January 29, 2001. The trial court abused its discretion by eliminating Father’s child-support obligation accruing after that date.

72 TRIAL COURT DID NOT ERR BY DETERMINING FATHER’S CHILD SUPPORT OBLIGATION EXTENDED THROUGH HIS EIGHTEEN-YEAR-OLD CHILD’S ACADEMIC SCHOOL YEAR EVEN THOUGH CHILD HAD THIRTY-SIX ABSENCES FROM SCHOOL DURING THE YEAR. Roberts v. Swain, No. 01-13-00801-CV, 2014 WL 1912678 (Tex. App.—Houston [1st Dist.], 2014, no. pet.) (mem. op.) (05/13/2014). Facts: The OAG filed suit seeking to modify Father’s child support obligation and a motion to confirm Father’s child support arrearage for his two children. The trial court conducted a hearing on the OAG’s motion to confirm child support arrearage and to determine whether the child support obligation had been fulfilled. At the hearing, Father contended that his oldest Child had turned eighteen years old in October 2012 and had failed to comply with minimum high school attendance requirements entitling her to continued child support. To support his argument, Father tendered two of the Child’s report cards for the 2012-2013 school year reflecting that the Child had a total of thirty-six absences for the entire school year. At the conclusion of the hearing, the trial court determined that (1) the evidence did not demonstrate that the Child had failed to comply with minimum attendance requirements and (2) Father’s child support obligation had therefore terminated at the end of the school year on May 31, 2013. Father appealed, arguing that the trial court disregarded Texas Family Code Section 154.002(a)(2) and Texas Educational Code Section 25.085(e). Holding: Affirmed Opinion: Texas Family Code Section 154.002(a)(1)-(2) provides, in pertinent part, that a trial court may modify an existing order, providing child support past the 18th birthday of the child if the child is enrolled in an accredited high school and complies with the minimum attendance requirements under the Education Code. Texas Educational Code Section 28.085 in turn provides that “[a] person who voluntarily enrolls in school or voluntarily attends school after the person’s 18th birthday shall attend school each school day for the entire period the program of instruction is offered. A school district may revoke for the remainder of the school year the enrollment of a person who has more than five absences in a semester that are not excused…” Here, relying on the Child’s 2012-2013 report cards reflecting the child had thirty-six absences for the entire school year, Father argued that number exceeded the five unexcused absences permitted under section Texas Educational Code Section 25.085(e). However, the report cards are not evidence that the Child did not meet the minimum attendance requirements. The report cards show only the number of the Child’s absences during the school year but do not indicate which, if any, were unexcused. Further, the report cards reflect that the Child received credit and grades in each grading period of the 2012-13 school year, undermining Father’s contention that the Child did not meet minimum attendance requirements. Accordingly, the trial court’s determination that Father’s child support obligation terminated on May 31, 2013 does not conflict with Texas Family Code Section 154.002(a)(2) or Texas Educational Code Section 25.085.

73 ALTHOUGH THE TRIAL ORDERED FATHER CONFINED FOR FAILURE TO MAKE A CHILD SUPPORT PAYMENT THAT FATHER IN FACT MADE, THE ENTIRE COMMITMENT ORDER WAS NOT VOID BECAUSE THE ERRONEOUS PROVISION WAS SEVERABLE FROM THE REMAINDER OF THE CONTEMPT/COMMITMENT ORDER; THE REPEAL OF TFC’S “PURGING PROVISION” DURING THE CONTEMPT PROCEEDINGS DID NOT OPERATE AS AN EX POST FACTO LAW AS TO FATHER BECAUSE HE HAD SIX WEEKS TO BECOME CURRENT ON HIS CHILD SUPPORT OBLIGATION BEFORE THE REPEAL BUT HE FAILED TO DO SO. In re Hall, 433 SW3d 203 (Tex. App.—Houston [14th Dist.], orig. proceeding) (05/28/2014). Facts: In July 2012, the trial court ordered Father to pay child support to Mother. On April 19, 2013, Mother filed a motion to enforce by contempt asserting that Father had failed to make seven payments due between August 1, 2012 and April 1, 2013, but not including the September 1, 2012 payment. The motion was originally set for June 10, 2013, however, it was reset to November 18, 2013 by which time Father made sufficient payments to become current on his child support obligation. Following the hearing, the trial court found Father guilty of five separate counts of criminal contempt by failing to make child support payments on August 1, 2012, September 1, 2012, October 1, 2012, November 1, 2012, and December 1, 2012. As punishment for the criminal contempt, the trial court ordered Father confined for 180 days for each of the five counts of contempt, sentences to run concurrently. Father filed a petition for habeas corpus. Holding: Petition for writ of habeas corpus granted in part, and denied Opinion: Father argued that the trial court’s entire commitment order was void because the trial court ordered Father confined for failing to make a full payment on September 1, 2012, when Father had in fact paid his child support obligation on that date. If one punishment is assessed for more than one act of contempt, and one act is not punishable by contempt, the entire judgment is void. However, where the trial court lists each failure separately and assesses a separate punishment for each failure, only the invalid portion is void; the invalid portion may be severed, and the valid portion retained. Here, in its order, the trial court listed five separate violations for not paying child support: including September 1, 2012. Additionally, the order directs that Father is to be confined for a period of 180 days for each count, the sentences to run concurrently. Therefore, because a separate punishment has been assessed for each of the listed violations, only the punishment for the September 1, 2012 violation is void, and it may be severed from the remainder of the contempt order. Consequently, the COA struck the trial court’s commitment order holding Father in contempt and confining him for 180 days for failing to make the September 1, 2012 support payment but left the remainder of the commitment order intact. Father argued further that the trial court’s commitment order violated his procedural due process rights because the Legislature’s repeal of Texas Family Code Section 157.162(d) during the pendency of the proceedings allowed the trial court to sentence him to six months in jail even though he was current on his child support payments at the time of the November 18, 2013 contempt hearing. The COA analyzed Father’s complaint as an unconstitutional ex post facto law as to Father. Former Texas Family Code Section 157.162(d), was known as a “purging provision” because it allowed a child support obligor to escape a valid finding of contempt if the obligor demonstrated at the enforcement hearing that he or she was current in the payment of child support as ordered by the court as of the date of the enforcement hearing. However, the Legislature repealed Texas Family Code Section 157.162(d) effective June 14, 2013, and such repeal expressly applies to a hearing to enforce that commences on or after that date. Here, Although Mother filed her enforcement motion on April 26, 2013, the hearing was not held until November 18, 2013. Therefore, Father was not able to take advantage of the section 157.162(d) purging provision at the November 18, 2013 hearing. Thus, the issue is whether the repeal of Texas Family Code Section 157.162(d) is an ex post facto law when Father’s violations of

74 the July 2012 order arose during the time period in which section 157.162(d) was effective, but was no longer available to Father at the November 18, 2013 hearing. Family law contempt proceedings are considered quasi-criminal in nature, and their proceedings should conform as nearly as practicable to those in criminal cases. The Texas Constitution prohibits ex post facto laws. Generally, an ex post facto law is any law that retroactively inflicts or increases criminal punishment. Although remedial or procedural laws are not usually within the ex post facto prohibition, if a procedural change is retroactive and results in a deprivation of a substantive protection, it is unconstitutional. Here, the repeal of Texas Family Code Section 157.162(d) did not amend substantive law regarding what acts constitute contempt or provide the available penalties for contempt; therefore, it is procedural in nature. However, the statute provided substantive protection to a party charged with contempt. Although a party could still have been guilty of contempt (failing to obey a court order), the court could not make a finding of contempt. The repeal of Texas Family Code Section 157.162(d) also applied retroactively as to Father because at the time he committed the acts of contempt (failing to pay the child support timely), he had the “affirmative defense” of payment. The repeal took away that defense as of June 14, 2013. Thus, the repeal of Texas Family Code Section 157.162(d) is an ex post facto law as to Father. Nevertheless, the repeal did not violate Father’s substantive protections in this case because he had the ability to take advantage of that affirmative defense before its repeal. Mother served Father with the motion for enforcement on April 30, 2013. Father had until June 13, 2013—about six weeks—to become completely current on his child support obligations under the July 2012 support order. If Father had done so, he could not have been held in contempt. Accordingly, the repeal of section 157.162(d) did not violate Father’s substantive protections.

TRIAL COURT ABUSED ITS DISCRETION IN CONCLUDING FATHER WAS NOT IN CHILD SUPPORT ARREARS EVEN THOUGH MOTHER AND FATHER INFORMALLY AGREED THAT FATHER WOULD PAY FOR CHILD’S DAY CARE AND TUITION IN EXCESS OF FATHER’S CHILD SUPPORT OBLIGATION. Ochsner v. Ochsner, 436 SW3d 378 (Tex. App.—Houston [14th Dist.], pet. filed 09/24) (05/29/2014). Facts: A 2001 divorce decree ordered Father to pay $240 per month in child support to Mother until the Child no longer attended Enron’s Kid’s Center day care and that Father’s child support obligation would increase to $800 per month thereafter. The Child stopped attending Enron’s Kid’s Center in September 2002. Afterward, Mother and Father orally agreed that instead of paying increased monthly child support, Father would continue to pay $240 per month in child support as well as the Child’s daycare and tuition. Pursuant to the parties’ informal agreement, Father paid $240 per month in child support, but also paid for the Child to attend various day cares and private schools through January 1, 2011. That same month, Mother filed a motion to enforce Child support order alleging Father failed to pay $800 per month in child support that was due beginning October 1, 2002 and ending January 1, 2011, for a total arrearage of $55,569.40. Following a hearing, the trial court denied Mother’s motion for enforcement concluding that the divorce decree did not contain language ordering Father to make periodic child support payments after the Child stopped attending Enron’s Kid’s Center. Mother appealed. The COA determined that the trial court’s conclusion was erroneous and remanded the case back to the trial court. On remand, the trial court concluded that Father was not in arrears because Father paid daycare and private school tuition in excess of what he owed in child support and again denied Mother’s motion for enforcement. Holding: Reversed and remanded

75 Opinion: A trial court may not reduce or modify the amount of child support arrearages except as specifically provided in the Family Code. The trial court’s child support calculations must be based on the payment evidence presented, not the trial court’s assessment of what is fair or reasonable. Nevertheless, under Texas Family Code Sections 157.008(d) and TFC 157.009, a counterclaim or offset may be given for an obligor’s provision of actual support to a child during periods when a child support obligee voluntarily relinquished to the obligor actual possession and control of a child, and for and lump-sum monies received by the obligee from an obligor’s disability payments. The TFC’s child support arrearage scheme reflects important public policy goals—child support is not a debt; rather, it is a duty owed to the child that cannot be affected by the “quarrels, iniquities, or mutual agreements” of the parents. Private agreements that alter child support obligations violate public policy and are unenforceable. Instead, parents must obtain court approval, conditioned on the best interest of the child, before they can agree to modify child support. Here, neither party asked the trial court to modify the child support obligations found in the original divorce decree to allow Father’s payments to a daycare and private schools to constitute child support. Thus, even if the trial court found that the parties agreed that Father’s payment to a daycare and private school constituted child support, such an agreement is unenforceable and is not a proper basis for reducing child support arrearages. Moreover, Father’s daycare and tuition payments do not constitute a counterclaim or offset because this case does not involve voluntary relinquishment of actual possession and control of the child; nor does it involve disability payments. Therefore, Texas Family Code Sections 157.008(d) and 157.009 are not implicated. Accordingly, the trial court abused its discretion in concluding that Father was not in arrears Dissent: The divorce decree ordered Father to pay $240 a month to Mother and it also ordered him to pay $563 a month to Enron Kid’s day care. After the Child stopped going to Enron Kid’s day care, Father continued to pay $240 a month to Mother and initially paid for another day care and then private schools with after school day care. Thus, the evidence at trial supports an implied finding by the trial court that Mother was financially responsible for the day care and school payments and that Father paid the day care and schools instead of paying Mother. Although parents must get court approval to modify child support obligations, the COA should have concluded that this is not a reduction or a modification of Father’s child support obligations but instead is merely a finding by the trial court that Father complied with his child support obligations.

THE OAG IS IMMUNE FROM SUIT FOR DAMAGES RESULTING FROM NEGLIGENTLY FAILING TO COLLECT PAST DUE CHILD SUPPORT OAG v. Parks-Cornelius, No. 12-13-00385-CV, 2014 WL 3662552 (Tex. App.—Tyler 2014, no pet.) (mem. op.) (07-23-14). Facts: Father was nearly $100,000 in arrears for past-due, court-ordered child support. Mother enlisted the OAG for assistance in collecting the past-due child support. When the OAG was unsuccessful, Mother sued the OAG for negligence and served the OAG by certified mail. The petition was received in the OAG mail room, but the OAG did not file an answer. The trial court rendered an interlocutory default judgment against the OAG and awarded Mother damages, which consisted of the past due child support and attorney’s fees. The OAG filed a notice of restricted appeal. Holding: Reversed and Rendered Opinion: The doctrine of sovereign immunity protects the State from lawsuits for damages in all instances where the State has not waived immunity by a constitutional or legislative provision. A waiver of immunity must be clear and unambiguous. Immunity deprives a trial court of jurisdiction. When a

76 political subdivision performs governmental functions, the subdivision derives governmental immunity from the State’s sovereign immunity. The OAG is entitled to collect and distribute court-ordered child support for the benefit of the child. There is no statutory provision allowing a court to order the OAG to pay child support when the obligor does not. There is no constitutional or legislative provision waiving immunity for the tort Mother alleged. The trial court had no jurisdiction over Mother’s suit. Therefore, the trial court erred in rendering a judgment in favor of Mother.

TRIAL COURT SEPARATELY DENIED MOTHER’S MOTION FOR ENFORCEMENT, SO IT LACKED AUTHORITY AT FINAL TRIAL IN THE MODIFICATION PROCEEDINGS TO AWARD FATHER ATTORNEY’S FEES AS ADDITIONAL CHILD SUPPORT Guillory v. Boykins, 442 S.W.3d 682 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (08-05-14). Facts: Mother and Father were never married. Approximately one year after the Child’s birth, the parties entered an “Agreed Child Support Review Order (Establishing the Parent-Child Relationship).” In that order, the parents were appointed JMCs, Mother was granted the exclusive right to designate the primary residence of the child, and Father was ordered to pay child support. The Child was enrolled in kindergarten at a local elementary school near Father’s home because the location was convenient for the parties. After the Child had been in school for a few years, the parties began to dispute custody, child support, and which parent had been exercising actual care, control, and possession of the child since the Child had begun school. Father asserted that Mother had relinquished custody to him, and Mother alleged that she exercised regular custody at all relevant times. Father filed a SPACR, seeking to modify the prior order to name him as the conservator with the exclusive right to designate the primary residence of the Child. Father also asked the trial court to order Mother to pay child support. Mother filed a counterpetition for modification and a motion to enforce the prior child support order, claiming Father was in arrears. Father answered the motion to enforce, disputing the amounts claimed by Mother and claiming that he was entitled to an offset. The trial court entered an enforcement order finding that Father was not in violation of the prior order and denying all of Mother’s requested relief. Separately, the trial court entered temporary orders in the modification proceedings. After a final trial, the trial court entered a final order appointing Father as SMC and ordering Mother to pay child support. In addition, the trial court awarded Father his attorney’s fees and ordered Mother to pay those fees as additional child support, which would be garnished from her paycheck. Mother appealed, arguing that the trial court erred in awarding attorney’s fees as child support. Mother argued that although she had filed a motion for enforcement, the only issues before the trial court at the final hearing were related to the modification. Holding: Reversed in Part Opinion: In a proceeding to modify child support, a trial court may award attorney’s fees that may be enforced as a debt. Contrarily, per TFC 157.167, in child support enforcement proceedings, attorney’s fees are permissibly taxed as child support. When attorney’s fees are awarded as child support, they may be enforced through contempt proceedings and may result in garnishment of the obligor’s wages. In nonenforcement proceedings, a trial court lacks the authority to deem attorney’s fees as necessaries or award attorney’s fees as additional child support. Here, Mother filed a motion for enforcement, which the trial court denied in a separate order. The only issue before the trial court at the time of trial was the modification sought by Father. Thus, the proceeding was not an enforcement proceeding, but rather a modification proceeding. Therefore, the trial court lacked the authority to deem Father’s attorney’s fees as additional child support and to withhold them from Mother’s earnings.

77

FATHER WAS NOT OBLIGATED TO REIMBURSE MOTHER FOR 50% OF UNREIMBURSED MEDICAL EXPENSES BECAUSE MOTHER FAILED TO PROVIDE FATHER WITH ANY DOCUMENTS RELATED TO THE EXPENSES WITHIN 30 DAYS OF THEIR RECEIPT. In re I.O.K., No. 05-13-01201-CV, 2014 WL 3939379 (Tex. App.—Dallas 2014, no pet.) (mem. op.) (0813-14). Facts: Mother and Father divorced and an agreed final decree was entered pursuant to an MSA. The agreement provided that each Party would be responsible for 50% of the Children’s unreimbursed medical expenses, unless the medical provider was out-of-network. In that case, the Party incurring the expenses would be fully responsible for those expenses, unless both Parties agreed otherwise in writing. The Party incurring reimbursable medical expenses was responsible for providing receipts, etc. to the other Party, and the other Party would then reimbursed the first Party as necessary. Also in the Decree, the Parties agreed that the Children would continue seeing their psychologist, Dr. Beckloff. Mother filed a motion for enforcement, seeking repayment of medical expenses related to the Children’s treatment by Dr. Beckloff. Mother testified that she had not turned over to Father any forms related to the expenses, but Father was aware of the charges. Father testified that he did not know about any expenses until receiving a $5000 bill directly from Dr. Beckloff. The trial court held Father in contempt for 59 claims for unreimbursed expenses but suspended any jail time. Father appealed, arguing that he was not responsible for the expenses because Dr. Beckloff was an out-of-network provider, and because Mother failed to turn over the required forms within 30 days. Holding: Reversed and Rendered Opinion: The final decree provided that each party would be responsible for 50% of the Children’s unreimbursed medical expenses, with an exception if the Parties agreed otherwise in writing. Here, although Father did not sign the final decree, the final decree was based on a MSA. A MSA must be in writing and signed by each party. Thus, the provision in the decree that provided that the Children would continue therapy with Dr. Beckloff, an out-of-network provider, was an agreement between the Parties in writing. Therefore, under the terms of the decree, both Parties were equally responsible for payment of Dr. Beckloff’s fees. In addition, the final decree required that Mother provide all forms, receipts, etc. to Father within 30 days of receiving them and required Father to reimburse Mother for his portion of the expenses within 30 days of receiving the forms from Mother. At trial, Mother admitted that she had not provided Father with any forms related to Dr. Beckloff’s expenses. Mother testified that Father knew about the expenses through email communications with Mother, responses to discovery requests, and EOB forms received from the insurance company. However, the COA held that the final decree explicitly required Mother to provide the necessary documents to Father. Father was not required to seek out the information. Because Mother did not comply with her obligation, Father’s obligation was never triggered.

78 ORDER TO CONFINE MOTHER FOR FAILURE TO PAY CHILD SUPPORT WAS A CRIMINAL CONTEMPT JUDGMENT AND DID NOT NEED TO INCLUDE LANGUAGE SPECIFYING HOW MOTHER COULD PURGE HERSELF OF CONTEMPT IF CONFINED; FINES FOR CONTEMPT COULD NOT EXCEED $500. In re Thompson, No. 01-14-00235-CV, 2014 WL 6792031 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding) (mem. op.) (12-02-14). Facts: Mother was ordered to pay child support and medical support for her and Father’s two Children. Subsequently, Father filed a motion to enforce the support payments and asked the trial court to hold Mother in contempt. After a hearing, the trial court held Mother in contempt for 4 failures to pay, found her in arrears for $1809.35, and ordered her confined for 90 days for each violation, with the periods to run concurrently. However, the trial court suspended her confinement on condition of monthly payments as detailed in the order. In addition, the trial court assessed a fine of $1809.35 for each violation. Mother filed a petition for writ of mandamus, contending the contempt order was void because (1) it did not specify an amount to pay to purge herself of confinement; and (2) it assessed fines greater than the maximum allowed by statute. Father argued that because Mother was never actually confined, the order did not need to specify how Mother could get out of jail, and that the $1809.35 was for arrearages, not fines. Holding: Writ of Mandamus Conditionally Granted in Part Opinion: A contempt judgment may be either civil or criminal. A civil contempt judgment provides that a contemnor is committed unless or until she performs an affirmative act, while a criminal contempt judgment is punitive and not conditioned on future performance. Here, the contempt order found Mother in contempt for four separate violations, and a punishment was assessed for each violation. Therefore, the order was not required to include any language specifying how Mother was to purge herself of contempt if confined. Tex. Gov’t Code 21.002(b) provides a maximum fine for contempt of $500. Here, the order provided “that punishment for each separate violation is assessed at a fine of $1,809.35….” Thus, the portion of the order assessing fines was void.

WIFE COULD NOT CIRCUMVENT THE TEXAS FAMILY CODE BY FILING PETITION UNDER THE UNIFORM DECLARATORY JUDGMENTS ACT TO OBTAIN AN AWARD FOR ATTORNEY’S FEES AGAINST OAG. OAG v. De Leon, No. 04-13-00501-CV, 2014 WL 7441464 (Tex. App.—San Antonio 2014, no pet. h.) (mem. op.) (12-31-14). Facts: Husband had child support obligations from a previous relationship. After Husband and Wife married, Wife used proceeds from a personal injury settlement to purchase several pieces of real property. Because the property was listed in both Husband’s and Wife’s name, the OAG put liens on the properties. Wife insisted the properties were her separate property, so she filed a petition under the Uniform Declaratory Judgments Act (UDJA). In addition to seeking a declaration that the property was her separate and the liens should be released, Wife sought attorney’s fees under the UDJA. The trial court granted Wife’s requested relief, including attorney’s fees. The OAG appealed, arguing the trial court was not permitted to award attorney’s fees. Holding: Reversed and Rendered

79 Opinion: Texas Family Code § 157.326 permits an obligor’s spouse to have a court determine the extent of the obligor’s interest in property subject to a child support lien. Texas Family Code § 231.211 provides that in a Title IV-D case, a court may not assess attorney’s fees against the Title IV-D agency. A party cannot use the UDJA to circumvent the TFC to obtain otherwise impermissible attorney’s fees. Here’s Wife’s UDJA claims for relief were incidental to her claims under the TFC, and thus, she was not entitled to attorney’s fees.

SAPCR

ADOPTION TFC 153.434 SPECIFICALLY PROHIBITED PATERNAL GRANDPARENTS FROM REQUESTING ACCESS TO THE CHILD PENDING MATERNAL GRANDPARENTS’ PENDING ADOPTION PROCEEDING; TRIAL COURT’S DENIAL OF MATERNAL GRANDPARENTS’ ADOPTION PETITION DID NOT RETROACTIVELY CONFER STANDING ON PATERNAL GRANDPARENTS. ¶14-5-19. In re Gonzalez, No. 04-14-00485-CV, 2014 WL 4922933 (Tex. App.—San Antonio 2014, orig. proceeding) (mem. op.) (10-01-14). Facts: Mother and Father died in a car accident, and Maternal Grandmother was appointed the permanent guardian of the Child. A few years later, Maternal Grandparents filed a petition for adoption of the Child. Paternal Grandparents, who did not live together, each filed a separate general denial in response to the petition. One week before the adoption was scheduled for final hearing, Paternal Grandmother, for the first time, filed an intervention requesting possession of and access to the Child. Three days later, Paternal Grandfather filed a motion for grandparent access. The trial court postponed the final hearing and issued temporary orders granting Paternal Grandparents some access to the Child. The trial court signed an “Amended Order Denying Adoption,” although it was unclear what prior order was being amended. In the Amended Order, the trial court denied Maternal Grandparents’ petition for adoption and stated that all relief not expressly granted was denied and included a handwritten notation, “This order is appealable.” Nevertheless, the trial court retained on its docket a final hearing scheduled for about a month later. Maternal Grandparents filed their appeal before the final hearing and notified the trial court via letter that the final hearing was not needed because “all relief not expressly granted was denied.” The trial court convened for the final hearing. Counsel for Paternal Grandparents appeared, but counsel for Maternal Grandparents did not. Paternal Grandparents re-urged request for access and asserted that their intervention and motion for grandparent access were still “live pleadings” and requested rulings because the trial court had “already denied the adoption.” Without hearing any evidence, the trial court signed an order granting the Paternal Grandparents shared standard possession. Maternal Grandparents filed a petition for writ of mandamus. Holding: Writ of Mandamus Conditionally Granted Opinion: Texas Family Code Section 153.434 provides that a grandparent may not request possession of or access to a child if each of the biological parents has died and the grandchild is the subject of a pending suit for adoption by a person other than the child’s stepparent. Here, it was undisputed that the Child’s parents were dead and an adoption proceeding was pending. Additionally, the adoption proceeding would not be considered final until the conclusion of the pending appeal or until dismissed by the trial court. TFC 153.434 clearly denied Paternal Grandparent’s standing to file a request for possession or access.

80 The trial court’s order denying Maternal Grandparent’s petition for adoption could not retroactively confer standing on Paternal Grandparents.

SAPCR

MODIFICATION § 155.201(b) DOES NOT INCLUDE A REQUIREMENT THAT, AFTER THE FILING OF THE LAWSUIT, THE CHILD IN A SAPCR MODIFICATION CONTINUE TO RESIDE IN THE COUNTY TO WHICH TRANSFER IS SOUGHT OR THAT AN ORIGINAL SAPCR COULD BE BROUGHT IN THAT COUNTY. In re Foreman, 05-13-01618-CV, 2014 WL 72483 (Tex. App.—Dallas 2014, orig. proceeding) (mem. op.) (1/9/14). Facts: Father and Mother were married from 1998 to 2009. Their final decree of divorce was signed on December 11, 2009 in Dallas County, Texas, at which time Father, Mother, and their children resided in Dallas County. On July 19, 2013, Father filed a petition to modify the parent-child relationship, and he concurrently filed a motion to transfer venue from Dallas County to Collin County. Mother filed an affidavit in response. On November 12, 2013, the trial court held an evidentiary hearing on Father’s motion to transfer venue. The affidavits of the parties and undisputed evidence adduced at the hearing showed that both parties currently resided in Dallas County, the children resided and attended school in Dallas County, the children's lifelong pediatrician was located in Dallas County, Mother had sold her house in Collin County and did not intend to move back to Collin County. The undisputed evidence also showed that the children resided in Collin County from June 2011 through July 23, 2013—up to and including the date that Father filed his petition to modify the parent child relationship and to transfer venue, the children’s school records for the previous two years were located in Collin County, the site of the children’s extracurricular activities for the two years that the children lived there was Collin County, and the children retained a few friends in Collin County. Neither party evidenced any intention of returning the children to Collin County. The trial court denied Father’s motion to transfer venue. Father filed a petition for writ of mandamus. Holding: Conditionally Granted. Opinion: Family Code Section 155.201(b) provides that the court of continuing, exclusive jurisdiction shall “transfer the proceeding to another county in this state if the child has resided in the other county for six months or longer.” This provision is mandatory, straightforward, and clear. It does not include a requirement that, after the filing of the lawsuit with a concurrently filed motion to transfer venue, the child currently reside in the county to which transfer is sought or that an original suit affecting parent child relationship could be brought in that county. In this case, the undisputed evidence showed that the children moved to Dallas County after the petition to modify and motion to transfer venue was filed. On the date that Father’s petition and motion to transfer venue was filed, the children’s principal residence on the date and during the six month period preceding the commencement of Father’s suit was Collin County. Thus, the trial court was required to grant Father’s motion to transfer venue under the plain language of Section 155.201(b) of the Texas Family Code.

81 CHILD MUST TAKE OATH WHEN GIVING OUT OF COURT TESTIMONY TO BE USED LATER IN SAPCR PROCEEDINGS; THE BEST INTEREST OF THE CHILD (NOT THE CHILD’S PREFERENCE) IS CONTROLLING Nichol v. Nichol, 07-12-00035-CV, 2014 WL 199652 (Tex. App.—Amarillo 2014, no pet.) (mem. op.) (1/15/14). Facts: On September 13, 2007, a trial court signed a final decree of divorce appointing Mother and Father JMCs of Child. In May 2009, Father sought to modify the order and filed a motion to pre-record testimony of Child, which the trial court granted. However, Child’s recorded statement was excluded at trial because no oath was administered and no preliminary questions were asked of Child which would indicate that Child understood that his testimony needed to be truthful. The trial court denied Father the exclusive right to designate Child’s primary residence, increased his child support obligation, and ordered $20,000 in attorney’s fees to Mother. The trial court also awarded Father additional possession time and ordered the Child continue to be enrolled at the private school he was already attending. Father appealed. Holding: Affirmed. Opinion: Father argued that the trial court erred by excluding Child’s recorded statement. Before a child’s recorded statement may be admitted into evidence, there must be a showing of competence at the time the testimony is given and a showing that an oath was given or some discussion had with the child about the issue of truthfulness. The transcript of Child’s recorded statement reflected that Father’s attorney began questioning Child without any oath or admonishment being given. Father also asserted that the trial court erred in denying his request to modify the right to designate the primary residence of Child. COA found that even though Child signed an affidavit expressing his preference to have Father designate his primary residence, the modification was not in Child’s best interest. Child suffered from dyslexia, anxiety, asthma, allergies, and hearing loss. However, Father wanted to remove Child from private school and enroll him in public school where his dyslexia might have gone untreated. Father also wanted to terminate Child’s treatment for anxiety, and disagreed with having Child repeat 5th grade even though that was the recommendation of educators, language therapists, and Mother. Finally, Mother and Father did not have an amicable relationship, which exacerbated Child’s anxiety. ALONG WITH A BEST INTEREST FINDING, A FINDING OF ONLY ONE GROUND ALLEGED UNDER SECTION 161.001(1) IS SUFFICIENT TO SUPPORT A JUDGMENT OF TERMINATION. In re D.D.G., 423 S.W.3d 468 (Tex. App.—Fort Worth 2014, no pet.) (1/23/14). Facts: Mother had four children and was eight months pregnant with her fifth child. Child 1 lived with her grandparents because of Mother’s alcohol abuse, and Child 2 and Child 3 had been placed in foster care because of Mother’s methamphetamine use. Child 4, the child at issue in this case, tested positive for methamphetamine when he was born due to the fact that Mother smoked methamphetamine throughout her entire pregnancy. The Department filed a petition to terminate Mother’s parental rights. Mother was unable to stop using methamphetamine completely, but stated that she had been clean for 5 months and therefore believed that she did not need drug treatment. Father was incarcerated at the time of trial, but evidence was introduced that he also smoked methamphetamine and obtained methamphetamine for Mother. Neither Mother nor Father completed the drug and alcohol assessment, individual counseling, family counseling, domestic violence counseling, or anger management counseling required by the plan. They also failed to provide documentation regarding their employment, and Mother missed at least 40% of her visits with Child 4. At the time of trial, Child 4 was in a foster home with Child 2 and Child 3, and

82 the foster parents wanted to adopt all three children. The trial court terminated Mother’s parental rights to Child 4 under 161.001(1)(D), (E), (M), and (R) of the Texas Family Code. Mother appealed. Holding: Affirmed. Opinion: Mother argued in first issue that the evidence was legally and factually insufficient to support the trial court’s findings under 161.001(1)(D), (E), and (R) of the Texas Family Code. Along with a best interest finding, a finding of only one ground alleged under Section 161.001(1) is sufficient to support a judgment of termination. A parent’s rights can be terminated upon a finding that the parent has been the cause of the child being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription, as defined by Section 261.001. A child is born addicted to a controlled substance if that child is born to a mother who used a controlled substance during her pregnancy and exhibits the demonstrable presence of a controlled substance in the child’s bodily fluids after his birth. At trial, Mother admitted that she smoked methamphetamine during all nine months of her pregnancy with Child 4, and that she was aware that Child 4 tested positive for methamphetamine at birth (which she attributed to her own drug use). Medical records relating to Child 4’s birth were introduced at trial to establish that both Mother and Child 4 had tested positive for methamphetamine at Child 4’s birth. The COA concluded that the evidence was legally and factually sufficient to support the trial court’s finding that Mother was the cause of Child 4 being born addicted to a controlled substance and overruled Mother’s issue.

EVIDENCE SUPPORTS INJUNCTION PROHIBITING PARTIES FROM ALLOWING CHILD IN PRESENCE OF AN UNRELATED PERSON OF OPPOSITE SEX. ADMISSION OF EXPERT EVIDENCE NOT DETERMINED BY ADMINISTRATIVE CODE. In re S.A.H., 420 S.W.3d 911 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (1/28/14). Facts: Mother and Father were divorced on October 23, 2006 and named JMCs for Child. Three years later, Mother arranged for Great Aunt (who had only met Child one time) to take Child because Mother had recently broken up with her boyfriend and had no place to live. It was understood between them that Great Aunt would keep Child until Mother “got her life together.” Mother also signed a Durable Power of Attorney for Great Aunt so that she could care for Child. Great Aunt and her husband provided Child with a high quality of life, and when Mother only visited Child a handful of times and did not ask for Child’s return after fourteen months, Great Aunt believed she would have Child forever. On January 1, 2011, without having made prior arrangements with Great Aunt, Mother arrived at Great Aunt’s house to take Child back. However, Child was at a local restaurant celebrating his birthday. On January 3, 2011, Great Aunt filed a petition to modify the parent-child relationship and requested to be named SMC. The trial court found that Mother had voluntarily relinquished the primary care, custody, and possession of Child to Great Aunt for at least six months and named Mother, Father, and Great Aunt as JMCs, giving Great Aunt the exclusive right to designate Child’s primary residence. Mother appealed. Holding: Affirmed. Opinion: Mother also asserted that the trial court abused its discretion in imposing an injunction prohibiting the parties from allowing Child to be in the presence of an unrelated person of the opposite sex with whom the party has a dating or intimate relationship with. A parent’s living with a boyfriend or girlfriend, after having exposed a child to several different people in dating relationships, can support a finding that it is in a child’s best interest not to visit with a parent while a non-relative boyfriend or girlfriend is present. Evidence was presented at trial that Mother had a history of serial relationships with live-in boyfriends, some of who had criminal backgrounds. Also, there was testimony from multiple

83 sources regarding an incident in which Mother and a boyfriend forced soap into Child’s mouth. Therefore, the COA held that the trial court did not abuse its discretion in imposing this prohibition. Mother also complained that the trial court abused its discretion in permitting a licensed professional counselor to testify as an expert witness because his testimony violated the rules promulgated by the State Board of Examiners and Psychologists. The admission of expert testimony is not determined by an administrative code, but by principles governing the admissibility of evidence. Therefore, the COA overruled Mother on this issue.

MATERIAL CHANGE IN CIRCUMSTANCES MAY INCLUDE (1) REMARRIAGE BY A PARTY, (2) POISONING OF THE CHILD’S MIND BY A PARTY, (3) CHANGE IN THE HOME SURROUNDINGS, (4) MISTREATMENT OF THE CHILD BY A PARENT OR STEP-PARENT, AND (5) A PARENT’S BECOMING AN IMPROPER PERSON TO EXERCISE CUSTODY In re S.N.Z., 421 S.W.3d 899 (Tex. App.—Dallas 2014, pet. denied) (1/28/14). Facts: In 2007, Mother and Child’s Paternal Aunt and Uncle signed a MSA concerning conservatorship of Child. Mother was named a possessory conservator and granted 5 hours of supervised visitation with Child on the first, third, and fifth Sunday of each month. Mother’s eldest daughter was selected as the visitation supervisor. In 2009, Aunt and Uncle sought to modify the agreement to (1) remove the prohibition on them from traveling outside the state with Child without Mother’s consent, (2) remove the fifth Sunday of each month from Mother’s periods of possession, and (3) remove the requirement for telephone access between Mother and Child. Mother filed a counter-petition and sought to be named SMC. At trial, Mother filed an objection to the assigned judge, but her objection was overruled. Mother then presented evidence that she a was a loving and caring mother and wanted to be the SMC so that she could develop a normal parent-child relationship with Child. Mother also testified that Aunt and Uncle were “poisoning [Child’s] mind against” her. However, conflicting evidence was presented on this point by Child, Aunt, Uncle, Mother’s eldest daughter, and numerous other people. The trial court denied Mother’s counter-petition and substantively gave her the same possessory rights to Child. Mother appealed. Holding: Affirmed. Opinion: Mother also argued that the trial judge’s refusal to modify the 2007 final order to allow her standard visitation was an abuse of discretion because there was no evidence or insufficient evidence to support the continuation of the requirement that her visits with S.N.Z. be supervised. A parent must show that modification would be in the best interest of the child and that the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the date of rendition of the prior order. Material changes may include (1) remarriage by a party, (2) poisoning of the child’s mind by a party, (3) change in the home surroundings, (4) mistreatment of the child by a parent or step-parent, and (5) a parent’s becoming an improper person to exercise custody. In addition, a course of conduct pursued by a managing conservator that hampers a child’s opportunity to favorably associate with the other parent may suffice as grounds for redesignating managing conservators. Mother’s evidence focused on the fact that she cared about Child and wanted more unsupervised access to her so that she could develop a normal, parent-child relationship. Mother alleged that circumstances had materially changed because she believed that appellees were “poisoning the child’s mind against her.” However, at best, there was only conflicting evidence concerning Child’s permission to send text messages or call Mother. There is no abuse of discretion when a trial judge bases his decision on conflicting evidence and chooses to believe one party over another. Therefore, the COA held that the trial court did not abuse its discretion and overruled Mother’s second issue.

84

ALTHOUGH FATHER HAD ALREADY MADE A LUMP SUM CHILD SUPPPORT PAYMENT FOR HIS CHILD PURSUANT TO THE PARTIES AGREEMENT, WHEN THE PARTIES LATER CONCEDED THAT THERE HAD BEEN A MATERIAL AND SUBSTANTIAL CHANGE IN CIRCUMSTANCES THE TRIAL COURT HAD THE AUTHORITY TO MODIFY THE PARTIES PRIOR AGREEMENT. Luckman v. Zamora, 01-13-00001-CV, 2014 WL 554630 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (mem. op.) (2/11/14). Facts: Mother gave birth to Child 1 in January 2005. On July 28, 2005, the trial court signed an “Agreed Child Support Review Order” adjudicating Father as the father of Child 1 and ordering him to pay a lump-sum child support payment of $30,000. The 2005 order stated that the payment would fully satisfy all present and future child support obligations. In 2007, Mother gave birth to Child 2, and on November 17, 2009, the trial court signed an “Agreed Order in Suit Establishing the Parent-Child Relationship and in Suit for Modification.” The 2009 order adjudicated Father as the father of Child 2 and found that Father had a duty of support. However, the order found that Mother and Father were living together as a family unit and that it was in the best interest of the children that no regular on-going child support be ordered. In September 2010, and after Mother and Father were no longer living together, Mother filed a motion to modify the 2009 order. On August 17, 2012, Father was ordered to pay $1,114.41 per month for the support of Child 1 and Child 2. Father appealed. Holding: Affirmed. Opinion: Father first argued that the trial court abused its discretion in ordering him to pay child support for Child 1 because the trial court found in 2005, based on Mother and Father’s agreement, that a single lump-sum payment of $30,000 was in Child 1’s best interest. The Family Code provides that to promote the amicable settlement of disputes between the parties to a suit, the parties may enter into a written agreement containing provisions for support of the child and for modification of the agreement, including variation from the child support guidelines. If the parties agree to an order under which the amount of child support differs from the amount that would be awarded in accordance with the child support guidelines, the court may modify the order only if (1) the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order’s rendition and (2) the modification is in the best interest of the child. The COA found that both parties conceded that the circumstances had materially and substantially changed since Father and Mother were no longer living together. Therefore, the COA held that the trial court did not abuse its discretion by requiring Father to make child support payments for Child 1 beyond the agreed upon lump sum payment he made in 2005.

TRIAL COURT ABUSED ITS DISCRETION BY DENYING FATHER’S MOTION TO TRANSFER SAPCR WITHOUT HOLDING A HEARING ON THE MOTION OR MOTHER’S CONTROVERTING AFFIDAVIT. In re Claiborne, No. 10-14-00076-CV, 2014 WL 1886052 (Tex. App.—Waco, 2014, orig. proceeding) (mem. op.) (05/08/2014). Facts: In 2008, the Johnson County trial court entered a final divorce decree between Mother and Father. In 2013, Father filed a motion to modify and a motion to transfer venue pursuant to Texas Family Code Section 155.201 in which Father alleged the Child had resided in Tarrant County during the six-month period preceding the commencement of the suit. Mother filed a controverting affidavit contesting Father’s motion to transfer venue stating that her residence was on the border of Tarrant and Johnson counties. The

85 trial court denied Father’s motion to transfer venue without conducting a hearing. Father then petitioned the appellate court for mandamus relief. Holding: Writ of mandamus conditionally granted Opinion: Texas Family Code Section 155.201(b) provides that if a party modification or enforcement suit, in the court having continuing, exclusive jurisdiction over the SAPCR, “on the timely motion of a party the court shall…transfer the proceeding to another county in this state if the child has resided in the other county for six months or longer.” Under Texas Family Code Section 155.204(e), if an opposing party files a controverting affidavit contesting the motion to transfer, the trial court is required to hold hearing on the motion.

TRIAL COURT DID NOT ABUSE ITS DISCRETION BY LIFTING DIVORCE DECREE’S GEOGRAPHIC RESTRICTION BECAUSE SUCH MODIFICATION WAS IN THE CHILD’S BEST INTEREST AND DID NOT VIOLATE TEXAS’S PUBLIC POLICY ENCOURAGING DIVORCED PARENTS TO SHARE IN THE RIGHTS AND DUTIES OF RAISING A CHILD. In re C.M., No. 04-12-00395-CV, 2014 WL 2002843 (Tex. App.—San Antonio, 2014, no. pet.) (mem. op.) (05/14/2014). Facts: A 2005 divorce decree appointed Mother and Father as joint managing conservators with Mother having the exclusive right to establish the primary residence of the Child subject to a geographic restriction within Bexar County. In 2011, Mother remarried, and began making arrangements to move to Georgia with the Child where she and the Child could be with Mother’s new husband and where Mother had extended family including the Child’s maternal grandparents. Afterward, Father filed a petition to modify the parent-child relationship seeking to be appointed as the parent with the exclusive right to designate the Child’s the primary residence, or alternatively that the terms and conditions of his access to the Child be modified to an expanded standard possession order and for Mother to be enjoined from removing the Child from Bexar County. Mother filed a counter-petition seeking to have the geographic restriction lifted in order to allow her to move with the Child to Georgia. Following a hearing, the trial court ordered the geographic restriction lifted finding among other things that lifting the restriction would positively affect the Child and enhance the Child’s emotional and mental well-being. Father appealed. Holding: Affirmed Opinion: Among the Texas Supreme Court’s “Lenz” factors relevant to the determination of whether a geographic restriction is in the best interest of the child, a trial court may consider the degree of economic, emotional, and educational enhancement for the custodial parent and child. Relying on 2002 case law, Father argued that Mother failed to prove that lifting the geographic restriction would have a positive impact on the child educationally, emotionally, or financially. However, the Legislature amended TFC 156.101 in 2001—the current version no longer includes the requirement of a “positive improvement.” Rather, TFC 156.101 now provides in pertinent part that a trial court may “modify an order ... that provides for the possession of or access to a child if modification would be in the best interest of the child.” Thus, a proper Lenz application is conducted under a best interest analysis. Here, the trial court heard testimony from both parents and the psychologist assigned to perform a social study. In her social study, the psychologist concluded that the Child’s best interest would be served by Mother remaining the parent with the exclusive right to designate the child’s residence and the geographic restriction being modified to include the Augusta, Georgia area. At a hearing, the psychologist testified and:

86  

described Father as controlling and manipulative; expressed concern regarding Father’s behavior toward Mother in the presence of the Child, Father’s failure to consistently exercise his visitation, and the communication between Father and Mother, which on at least one occasion resulted in the Child being left at school when Father did not pick her up for visitation;  opined that a strong bond could be maintained between the Child and Father based on the Child’s verbal capability and her belief that the Child could communicate well via Skype or other videoconferencing methods;  confirmed that Mother was from Georgia, her family lived there, and her new spouse and his extended family lived there;  opined that the move would be more stable for Mother and, thus, a better situation for the Child; and  recommended that a “co-parenting facilitator” would be beneficial for the parents. On this record, trial court did not abuse its discretion in determining the Lenz factors weighed in favor of lifting the geographic restriction. Father argued further that Texas public policy dictated against allowing Mother to move the Child one-thousand miles away. In Texas, public policy highly recommends encouraging separated and divorced parents to share in both the rights and duties of raising a child. TFC 153.001(a) provides factors for the court to use in evaluating whether lifting the geographic restriction violates Texas public policy by requiring the court to: (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable, and nonviolent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage. Here, the record detailed above supported the trial court’s conclusion that in the absence of a geographic restriction, the Child could maintain frequent contact with Father, Mother would be able to provide the Child a stable environment in Georgia, and both parents could continue to exercise their rights and duties in the Child. Therefore, the trial court did not abuse its discretion in determining that public policy supported lifting the geographic restriction.

AN AFFIDAVIT COMPLYING WITH TFC 156.102 MUST INCLUDE FACTS TO SUPPORT AN ALLEGATION THAT THE CHILD’S PRESENT ENVIRONMENT MAY ENDANGER THE CHILD’S PHYSICAL HEALTH OR SIGNIFICANTLY IMPAIR THE CHILD’S EMOTIONAL DEVELOPMENT; A CONCLUSORY STATEMENT BY ITSELF IS INSUFFICIENT In re C.G., No. 04-13-00749-CV, 2014 WL 3928612 (Tex. App.—San Antonio 2014, no pet.) (mem. op.) (08-13-14) (op. on rhrng.). Facts: During their divorce proceedings, Mother and Father entered into a settlement agreement that appointed both parents JMC and granted Mother the right to designate the primary residence of their two Children with a geographical restriction requiring them to live in Bexar County, Texas or within 100 miles of Delaware County, New York, where the Children’s paternal grandparents resided. After entering this agreement, but before the divorce was finalized, Mother moved to Philadelphia, which she had calculated to be 96 miles from Delaware County. Subsequently, Father filed a motion to modify the geographical restriction to 75 miles of Delaware County, which was the restriction ultimately imposed by the final decree. Five months later, Father filed a SAPCR, seeking to be designated as the conservator with the right to designate the primary residence of the Children and seeking to modify child support. Father attached a

87 supporting affidavit stating that Mother had excluded Father “from active participation in the lives of the children and from access to and possession of them.” He alleged that Mother had alienated the Children from him and “failed to facilitate, encourage, nurture, or support a relationship between the children and [him].” Father also claimed that “the children’s present environment with [Mother] may endanger their physical health or substantially impair their emotional development, especially if allowed to continue.” In addition, Father filed a motion for enforcement, alleging several violations of the decree by Mother, including her move to Philadelphia. During a two-day bench trial, Father entered evidence that Mother failed to provide him with copies of school records and progress reports as required by the decree. Mother also failed to deliver the children to Father for all of his allowed periods of visitation, and she did not always allow the Children to come to the phone when Father called. However, Father also testified that the Children were great, happy kids and that they had done well in school while in their Mother’s possession. At the conclusion of the trial, the trial court granted Father’s SAPCR and held Mother in contempt for, among other violations, moving to Philadelphia in violation of the 75-mile geographical restriction imposed by the final decree. Holding: Reversed and Rendered in Part / Affirmed in Part Opinion: TFC 156.102 applies when a SAPCR is filed less than a year after a prior order and seeks to modify the designation of the person with the right to designate the primary residence of a child. TFC 156.102(b)(1) requires the movant to attach to the SAPCR an affidavit with facts to support an “allegation that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development[.]” Per TFC 156.102(c), a trial court shall set a hearing only after determining that the supporting affidavit is sufficient. Here, Father’s supporting affidavit merely contained a conclusory statement regarding the Children’s physical and emotional well-being. Rather than addressing effects on the Children, the facts presented in Father’s affidavit focused on how Mother’s actions and omissions affected him. Thus, Father’s affidavit was insufficient to support an allegation that the Children’s present environment may endanger their physical health or significantly impair their emotional development. The trial court erred in not refusing to set a hearing. The trial court noted that such an error would have been harmless if the testimony admitted during the hearing supported an allegation that the Children’s present environment may endanger their physical health or significantly impair their emotional development. However, during the hearing, no evidence was presented to support such an allegation. Therefore, Father failed to meet his burden under TFC 156.102, and the trial court erred in granting Father’s SAPCR. A party can only be held in contempt for a failure to comply with a decree or order that existed at the time of the alleged contemptuous act or omission. Here, the final decree with the 75-mile geographical restriction did not exist at the time of Mother’s move. However, the Children did not join Mother at her new home until after the entry of the final decree and after the 75-mile geographical restriction was in effect. Thus, the trial court did not err in finding Mother in contempt for violating the geographical restriction.

88 BECAUSE THE GEORGIA DIVORCE DECREE DID NOT DESIGNATE A PERSON WITH THE EXCLUSIVE RIGHT TO DETERMINE THE CHILDREN’S PRIMARY RESIDENCE, FATHER WAS NOT REQUIRED TO ATTACH A SUPPORTING AFFIDAVIT TO HIS SAPCR SEEKING TO DESIGNATE SUCH A PERSON LESS THAN ONE YEAR AFTER THE RENDITION OF THE GEORGIA DECREE. In re C.R.A., ___ S.W.3d ___, 2014 WL xxxxxxx, 02-12-00498-CV (Tex. App.—Fort Worth 2014, no pet. h.) (12-31-14). Facts: Mother and Father had two Children. When the Parents separated, they were living in Georgia. Father returned to his home town in Hood County, while Mother and the Children remained in Georgia. Mother filed for divorce in Georgia. However, after temporary orders gave Father primary custody, Mother moved to Texas. The divorce was finalized in Georgia, and the final decree provided that the Parents were to share joint legal custody of the Children. In addition, the decree required the Children to remain in their current school for the 2010–2011 school year and to be enrolled in the school district where they resided for 2011–2012. However, the decree was silent as to residency after the 2011–2012 school year. Soon after the divorce, Mother married a man who lived in North Carolina, and the couple maintained a long-distance relationship. Mother notified Father that she intended to move after the 2011– 2012 school year to North Carolina to live with her new husband. Mother planned to look for a job after the move. Father filed a SAPCR, seeking the exclusive right to designate the Children’s primary residence, or in the alternative, to restrict the Children’s residence to Hood County. Mother filed a motion to dismiss because Father’s motion had been filed within one year of the Georgia decree, and he had not attached an affidavit as required by Texas Family Code § 156.102. Father argued that because the Georgia decree did not comply with Texas law, Texas Family Code § 156.102 did not apply. The trial court denied Mother’s motion to dismiss, and after a bench trial, it designated Mother as the parent with the exclusive right to designate the Children’s primary residence within Hood County. Mother appealed. Holding: Affirmed Opinion: Texas Family Code § 156.102 applies to suits that modify the designation of the person with the exclusive right to determine the primary residence of a child. Further, Texas Family Code § 153.134 requires a decree to either apply a geographical restriction to the child’s residence or explicitly determine that a geographical restriction is unnecessary. Here, the Georgia decree did not grant either Parent the exclusive right to determine the Children’s primary residence. Further, the Georgia decree only restricted the Children’s residence through the end of the 2011–2012 school year. Texas law does not provide for a geographical restriction’s automatic expiration; under the TFC, a geographical restriction can only be modified by court order. Therefore, Father’s suit sought the first designation of a person with the right to determine the primary residence of the Children, and Texas Family Code § 156.102 did not apply.

89

SAPCR

CHANGE OF NAME—CHILD EXISTENCE OF HALF-SIBLING WITH FATHER’S LAST NAME WAS INSUFFICIENT REASON TO CHANGE CHILD’S LAST NAME FROM MOTHER’S. In re A.E.M., ___ S.W.3d ___, 2014 WL 7182562, 2014 WL 7183222, 01-14-00123-CV (Tex. App.— Houston [1st Dist.] 2014, no pet. h.) (12-16-14). Facts: Mother and Father had a Child and met with the OAG to reach an agreement for a child support and custody order. The parents were able to agree on all issues except the name of the Child. Mother wanted the Child’s last name to remain the same as hers, while Father wanted to change the Child’s last name to his. Father testified that he had another child with his last name, and he wanted the two children to share a last name. Mother testified that her name was respected in the community because her father had run a business there for 33 years. The issue was presented to the trial court, which ordered the name be changed to include Father’s surname. Mother appealed, arguing that the evidence was legally and factually insufficient to change the Child’s name. Holding: Reversed and Rendered Majority Opinion: (J. Higley, J. Sharp) Tex. Fam. Code Section 45.004 provides that a child’s name may be changed if the change is in the child’s best interest. Once a child is named, the name should only be changed when the substantial welfare of the child requires it. The interests of the parents are not relevant. The factors to consider include: (1) the name that would best avoid anxiety, embarrassment, inconvenience, confusion, or disruption for the child, which may include consideration of parental misconduct and the degree of community respect (or disrespect) associated with the name; (2) the name that would best help the child’s associational identity within a family unit, which may include whether a change in name would positively or negatively affect the bond between the child and either parent or the parents’ families; (3) assurances by the parent whose surname the child will bear that the parent will not change his or her surname at a later time; (4) the length of time the child has used one surname and the level of identity the child has with the surname; (5) the child’s preference, along with the age and maturity of the child; and (6) whether either parent is motivated by concerns other than the child’s best interest—for example, an attempt to alienate the child from the other parent. Here, while most of the factors were neutral, in that, they did not favor Mother or Father, one factor weighed slightly in Father’s favor. Father had another child who shared his last name. However, Father only had periodic visitation of both children, and no evidence was presented regarding how often either child visited Father or even whether those periods would overlap. Mother and Father did not live in the same town or in surrounding towns. Father presented no evidence as to where his other child lived or the age of the other child. The dissent’s criticism was misplaced because the majority did not place any reliance on Mother’s testimony. Rather, it considered the evidentiary significance of Father’s testimony. Father provided little or no information about the other sibling, and a name change should be granted reluctantly and only where the substantial welfare of the child requires it. Dissenting Opinion: (J. Bland) The relative importance factors listed in the majority opinion depend on the unique facts and circumstances of each case. The number of factors favoring the trial court’s ruling should not control, rather, the logical force of each should. All but one of the factors in this case were subjective in nature and thus, were uniquely within the trial court’s purview. The one subjective piece of

90 evidence was the Child’s sibling relationship with Father’s other child. Father testified that he wanted the children to get to know each other and develop a relationship. The majority rejected this testimony in favor of Mother’s, where such a determination was within the trial court’s discretion. Further, the majority dismissed the notion of the importance of a child’s sibling relationship with another child.

MISCELLANEOUS AG DOES NOT HAVE TO RELEASE PRIVILEGED DOCUMENTS AND DOES NOT WAIVE PRIVILEGE WHEN IT CHOOSES TO RELEASE SOME, BUT NOT ALL, OF THE REQUESTED DOCUMENTS In re O.A.G., 2014 WL 491684, 02-13-00455-CV (Tex. App.—Fort Worth, 2014, orig. proceeding) (0206-14) (mem. op.) Facts: In February 2013, the AG filed suit to establish Rogers as the father of B.R. Rogers sent a request for disclosures, a request for production, and interrogatories to the AG. Rogers also requested that the AG produce B.R.’s mother’s application for services submitted to the AG and all related documents. The AG provided some information but withheld the address and phone number of the mother and B.R.’s presumed father. The AG objected to the requests for production on the grounds of privilege and confidentiality. Rogers filed a motion to compel, which the district court granted. The trial court’s order stated, according to Tex. Fam. Code § 231.108(c), the [AG] has the discretion to release communications it may receive from Mother in this case; therefore, the court may compel the [AG] to produce this information in discovery. The order compelled the AG to respond to Rogers’s requests and interrogatories with the information that Mother provided the AG but not information the AG received from other government agencies. The AG then sought mandamus relief. Holding: Mandamus granted Opinion: Under the Family Code, “all files and records of services provided [to the AG] under this chapter, including information concerning a custodial parent, noncustodial parent, child, and an alleged or presumed father, are confidential.” Tex. Fam. Code Ann. § 231.108(a). Subsection (b) states, “Except as provided by Subsection (c), all communications made by ... an applicant for or recipient of services under this chapter are privileged.” Id. § 231.108(b). Subsection (c) provides that the AG “may” release the privileged or confidential information “for purposes directly connected with the administration of the child support [or] paternity determination.” Id. § 231.108(c). Nothing in the statute requires it to release the information. Further, just because the AG released some information, the release did not preclude it from later claiming privilege as to other documents.

PURSUANT TO SHARMA V. ROUTH, BECAUSE THE TRUST WAS IRREVOCABLE AND HUSBAND HAD NO PRESENT POSSESSORY RIGHTS TO THE CORPUS BECAUSE THE TRUST ENTITLED HIM TO ONLY INCOME DISTRIBUTIONS, THOSE DISTRIBUTIONS WERE HIS SEPARATE PROPERTY Benavides v. Mathis, 433 S.W.3d 59 (Tex. App.—San Antonio 2014, pet. denied) (02-12-14) Facts: Husband and Wife have no children from their marriage; however, Husband has three adult children from his first marriage. Years before Husband and Wife’s marriage, the Benavides Family Mineral Trust was created, in

91 1990, to hold in trust, manage, and control approximately 126,000 acres of mineral estate for its beneficiaries. Husband, who is one of several participating beneficiaries under the trust, receives monthly payments of the net balance (after payment of certain expenses) of revenues from the trust estate. On October 14, 2011, Mathis was appointed as temporary guardian of Husband’s person and estate and notified the trust’s co-trustees of her appointment and demanded that all funds distributable to Husband be distributed to her. In February 2012, Wife asked the co-trustees to deliver to her one-half of all distributions owed to Husband on the grounds that all trust distributions during the marriage were community property; thus, one-half of the distributions were owed to her. The co-trustees refused. About a month later, Wife made the same demand of Mathis, who also refused. Wife filed the underlying lawsuit. Mathis subsequently filed an MSJ on Wife’s tortious interference and money had and received claims, which the trial court granted without stating its grounds, and this appeal followed.

Holding: Affirmed Opinion: Primary issue was whether income distributions paid to Husband from a family trust are his separate property or are community property. The COA agreed with the decision in Sharma v. Routh (302 S.W.3d 355) that trust distributions to a married beneficiary are separate property if the beneficiary has no present, possessory right to the trust corpus. Here, the Family Mineral Trust was irrevocable and the terms that allowed for its amendment did not in fact then make it revocable. Further, Husband had no present, possessory rights to the corpus because the terms of the trust entitled him only to income distributions. The COA rejected Wife’s argument that Husband’s ability to transfer his interest to others gave Husband a present, possessory right to the corpus and agreed that Husband was one of the “settlors” of the trust but he was not a current trustee. The COA noted that the fact that an income beneficiary might also hold title to the corpus as a trustee is not a controlling factor to determine marital property character of the income.

THERE IS NO RATIONAL RELATIONSHIP BETWEEN TEXAS CONSTITUTION SECTION 32 (BANNING SAME SEX MARRIAGE) AND A LEGITIMATE STATE INTEREST. De Leon v. Perry, 975 F.Supp. 2d 635 (W.D. Tex. 2014) (injunction) (02-26-14) Facts: Two homosexual couples, one wishing to marry in Texas and another seeking to have their Massachusetts marriage recognized under Texas law, brought action to challenge prohibition of same-sex marriage under Texas constitutional amendment. Couples moved for preliminary injunction to bar enforcement of prohibition. Holding: Injunction granted. Opinion: Applying the US Supreme Court’s recent decision in United States v. Windsor, 133 S.Ct. 2675 (2013), Hon. Orlando L. Garcia ruled that Texas’s prohibition on same-sex marriage conflicts with the US Constitutional guarantees of equal protection and due process, finding the Texas constitution and related family code statutes to be unconstitutional and granting a preliminary injunction prohibiting the named officials from enforcing those laws. Judge Garcia held that there is no rational relationship between Section 32 (banning same sex marriage) and a legitimate state interest, rejecting claims that the ban promotes responsible child-rearing; encourages procreation within marriage and upholds tradition. There was no evidence to support the notion that a gay parent is not as responsible as a heterosexual parent or that banning gay marriage promotes procreation, noting that such an idea would likewise prevent infertile persons and elderly persons from marrying because they too cannot bear their own children. Texas law violates a person’s fundamental right to marry, a right of due process, holding that Texas law cannot define marriage in a way that denies its citizens the freedom of personal choice in deciding whom to marry or deny the same status and dignity to the decision they make. Additionally, the refusal to recognize a same-sex marriage sanctioned in another state is likewise improper and although DOMA

92 gives each state the right to decide if they will recognize same sex marriage, this does not serve as a barrier to the equal protection and due process claims raised in this case. The court stayed execution of the injunction pending review by the 5th Circuit.

DIVORCE DECREE’S INJUNCTION PERMANENTLY ENJOINING HUSBAND FROM ACCESS TO HIS ONE-HALF SEPARATE PROPERTY INTEREST IN MARITAL RESIDENCE IMPERMISSIBLY DIVESTED HUSBAND OF HIS SEPARATE PROPERTY. Heard v. Heard, No. 02-12-00406-CV, 2014 WL 1257262 (Tex. App.—Fort Worth, 2014, pet. denied) (mem. op.) (03/27/2014). Facts: Husband and Wife purchased their residence before marriage with each party taking a one-half undivided separate property interest in the property. The trial court rendered a divorce decree that, among other things, confirmed Husband’s and Wife’s one-half interest in the residence. The decree made Wife’s interest a present possessory interest in the entire property including Husband’s separate property interest until the children were emancipated, the children’s disabilities were otherwise removed, or Wife ceased to use the residence as her primary residence. Additionally, the decree enjoined Husband from entering the property without Wife’s knowledge or consent. Husband appealed arguing that the trial court divested him of his separate-property interest in the residence. Holding: Reversed and rendered. Opinion: Unlike Wife’s possessory interest, which ceases upon the occurrence of one of three conditions, Husband’s injunction does not terminate upon the occurrence of anything, including when Wife’s possessory interest ceases. Therefore, the injunction effectively divested Husband of his separate property interest in the residence. The injunction is reformed so that it terminates when Wife’s possessory interest terminates.

TRIAL COURT ABUSED ITS DISCRETION BY ORDERING TRUSTEE OF A SPENDTHRIFT TRUST TO WITHHOLD MANDATORY AND DISCRETIONARY DISTRIBUTIONS AND TO PAY MANDATORY DISTRIBUTIONS TO WIFE AS TEMPORARY SPOUSAL SUPPORT. In re BancorpSouth Bank, No. 05-14-00294-CV, 2014 WL 1477746 (Tex. App.—Dallas, 2014, orig. proceeding) (mem. op.) (04/14/2014). Facts: Relator (“Trustee Bank”) is the trustee of a spendthrift trust in which Husband is the beneficiary. In a divorce proceeding, the trial court ordered Trustee Bank to withhold mandatory and discretionary distributions that would otherwise be payable to Husband and to pay the mandatory distributions to Wife as spousal support according to the trial court’s temporary support order and to pay the discretionary distributions to the trial court’s registry. Trustee Bank then petitioned the appellate court for mandamus relief. Holding: Writ of mandamus conditionally granted Opinion: Spendthrift trusts are trusts with language prohibiting the voluntary or involuntary alienation of the beneficial interest. A spendthrift trust protects the beneficiary from his creditors by expressly forbidding alienation of the beneficiary’s interest in the trust. Wife analogized the trial court’s order to an income withholding order directed to an employer for child support or court-ordered spousal support under Texas Family Code Sections 154.007 and 8.101.

93 However, Texas Family Code Sections 154.007 and 8.101 are creatures of specific statutes that create an exception to the general limitation on garnishment of current wages. There is no similar statute permitting a trial court to redirect payments from a spendthrift trust to a spouse or former spouse. Wife also analogized the trial court’s order to an order under Texas Family Code Section 154.005, which provides that a trial court “may order the trustees of a spendthrift or other trust to make disbursements for the support of a child to the extent the trustees are required to make payments to a beneficiary who is required to make child support payments.” However, there is no similar statutory provision exempting spousal support from the spendthrift provisions of a trust. Accordingly, trial court abused its discretion by entering a withholding order attempting to circumvent the spendthrift provisions of the trust.

AFTER THE JURY RENDERED A VERDICT FINDING THAT FATHER SHOULD NOT BE CHILD’S CONSERVATOR, TRIAL COURT ABUSED ITS DISCRETION BY GRANTING FATHER’S MOTION FOR A NEW TRIAL UNDER A THEORY THAT THE JURY VERDICT AMOUNTED TO A DE FACTO TERMINATION OF HIS PARENTAL RIGHTS. In re Stearns, No. 02-14-00079-CV, 2014 WL 1510059 (Tex. App.—Fort Worth, 2014, orig. proceeding) (mem. op.) (04/17/2014). Facts: Mother sued Father for divorce and sought sole custody of the parties’ Child. The jury found that Mother should be the sole-managing conservator and that Father should not be a possessory conservator because such appointment was not in Child’s best interest and possession or access by Father would endanger the Child’s physical or emotional welfare. The trial court signed a judgment in accordance with the verdict. Afterward, Father filed a motion for new trial arguing that his due process rights were violated when the jury did not appoint him as a possessory conservator thereby creating a de facto termination under a preponderance of the evidence standard, rather than a clear and convincing standard for conservatorship determinations. The trial court granted Father a new trial as well as access to the Child. Mother petitioned for mandamus relief. Holding: Writ of mandamus conditionally granted Opinion: The trial court’s order granting a new trial based on Father's “de facto” termination argument violates TFC 105.002(c)(1)(C), which provides that a trial court may not “contravene a jury verdict” on the issue of the appointment of a possessory conservator. The trial court’s order also overlooks the Family Code’s provisions (TFC 102.003(a)(1), 156.001–.002, 156.101) allowing a parent, even a nonconservator like Father, to seek modification of a conservatorship order and that gives a trial court discretion to grant modification if it is in the child’s best interest and the parent’s or child’s circumstances have materially and substantially changed since the order was rendered. It is this law that differentiates Father from parents whose relationships with their children have been permanently severed, and it is this law that provides Father and other similarly situated parents due process. Accordingly, the trial court abused its discretion by contravening the jury’s verdict. The trial court is ordered to vacate its order granting Father’s motion for new trial. Although Mother could appeal the granting of Father’s motion for new trial after the trial court enters a final judgment, whether that appeal would be an adequate remedy depends on a careful analysis of the costs and benefits of interlocutory review. Here, the jury determined that Father should not be a conservator of his two-year-old Child. With the trial court’s granting of Father’s motion for new trial, Father retained court-ordered visitation despite a jury’s decision that possession or access by Father would endanger the child’s physical or emotional welfare. Under these circumstances, mandamus relief is appropriate.

94 TRIAL COURT ERRED BY CONFIRMING AN ARBITRATION AWARD THAT THE ARBITRATOR RENDERED AFTER THE DEADLINE SET IN THE ARBITRATION AGREEMENT. Sims v. Building Tomorrow’s Talent, No. 07-12-00170-CV, 2014 WL 1800839 (Tex. App.—Amarillo, 2014, pet. 06/16) (mem. op.) (04/30/2014). Facts: Sims and Gay entered into a partnership related to human resources consultation with each owning a 50% interest. Thereafter, Gay sued Sims on various claims related to the partnership after which the parties entered into a mediated settlement agreement containing an arbitration clause for resolving future issues. Afterward, the parties invoked the arbitration provisions to resolve a dispute regarding ownership of copyrighted materials. Sims and Gay selected an arbitrator and executed proposed arbitration guidelines requiring the arbitrator to issue a written ruling within fourteen days of both parties’ written submissions. Gay submitted his final brief on December 22, 2008. Therefore, under the arbitration terms, the arbitrator’s ruling was due no later than January 6, 2009. By January 6, 2009, the arbitrator had not filed his written ruling. On April 3, 2009, Sims’s sent a letter to Gay and the arbitrator objecting to the arbitrator’s failure to render an award. The arbitrator did not respond. Thereafter, the parties engaged in a protracted battle over whether and when the arbitrator was to submit a written ruling. On June 18, 2010, the trial court entered a written order directing the arbitrator to render a written award within sixty days. Sims objected to the written order on the basis the court was replacing agreements and deadlines entered into by the parties in the proposed arbitration guidelines. On August 10, 2010, approximately nineteen months after the initial, agreed-to deadline, the arbitrator issued his award in favor of Gay and against Sims. But not until August 25, 2011, did the arbitrator issue a final judgment awarding Gay $195,000 in damages and $92,135.32 in attorney's fees. The trial court confirmed the arbitrator’s award on October 26, 2011. Sims appealed, arguing that the trial court erred in confirming the arbitrator's award after the deadline set by the parties had passed. Holding: Reversed and remanded Opinion: Arbitration is a contractual proceeding by which the parties to an agree to submit their controversy or dispute to arbitrations in order to obtain a speedy and inexpensive final disposition. Texas Civil Practices and Remedies Code 171.053(c)(1), (2) clearly and unambiguously provides that an arbitrator shall make an award within the time established by the agreement to arbitrate, or if a deadline is not established by agreement, within the time ordered by the court. Section 171.053(e) provides that complaints concerning the tardiness of an arbitration award are waived “unless the party notifies the arbitrators of the objection before the delivery of the award to that party.” Here, the parties executed proposed arbitration guidelines requiring the arbitrator to issue a written ruling within fourteen days of both parties’ written submissions—January 6, 2009. Regardless, on June 18, 2010, the trial court set new deadlines for discovery, testimony and briefing and sixty days to render a written award. Even assuming the parties abandoned the original deadline as argued by Gay, the arbitrator’s award was still outside the later deadline set by the trial court. The arbitrator’s conduct defeated the intent of arbitration—a contractual arrangement by parties to obtain a speedy and inexpensive final disposition. Accordingly, the trial court erred by confirming the arbitrator’s award.

95 TRIAL COURT VIOLATED HUSBAND’S DUE PROCESS RIGHTS BY INCARCERATING HUSBAND FOR DIRECT CONTEMPT WITHOUT SIGNING A WRITTEN COMMITMENT ORDER—THE TRIAL COURT’S DOCKET SHEET NOTATION FAILED TO SATISFY DUE PROCESS. In re Griffith, 434 SW3d 643 (Tex. App.—Houston [1st Dist.], 2014, orig. proceeding) (05/01/14). Facts: During a divorce trial, the trial court admonished Husband for proffering nonresponsive answers while being questioned by Wife’s attorney. The trial court warned Husband that if he failed to answer subsequent questions, the trial court would hold Husband in direct contempt and jail Husband for each occasion. Following additional testimony, the trial court held Husband in direct contempt for failing to answer the questions asked by his own counsel and ordered Husband immediately jailed for 30 days. The trial court made a docket entry reflecting the contempt finding, but the court did not sign a written contempt or commitment order. Holding: Writ of habeas corpus granted Opinion: It is well settled in Texas that a person may not be imprisoned for contempt without a written order of commitment. This is true in cases of both direct contempt and constructive contempt. In cases of direct contempt, the trial court may cause the contemnor to be detained for a short and reasonable time while the trial court prepares and signs the judgment of contempt and order of commitment. Thereafter, if no written order is signed, the contemnor must be released in compliance with due process. A docket sheet notation is not sufficient to satisfy due process requirements; a written order of commitment is required.

TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REOPENING THE EVIDENCE EVEN THOUGH WIFE FAILED TO EXERCISE DUE DILIGENCE IN OBTAINING ADDITIONAL EVIDENCE. Brazell v. Brazell, No. 04-13-00491-CV, 2014 WL 1871361 (Tex. App.—San Antonio, 2014, pet. denied) (mem. op.) (05/08/2014). Facts: Husband and Wife divorced in 2001. The divorce decree awarded Wife a 42% interest in Husband’s Civil Service retirement plan with a $17,500 offset. Husband retired in 2010 and began receiving his monthly annuity payments. After Husband failed to make payments to Wife, Wife brought suit to compel payment for past due and future payments owed to her. The trial court held a hearing in which Husband argued his retirement plan was a defined benefit plan whereas Wife argued the plan was a defined contribution plan. Husband introduced a letter, from the U.S. Office of Personnel Management (“OPM”) stating that for Husband to be eligible for the benefits under the plan, he would have to reach a minimum age of fifty-five with thirty years of service. As of the 2001 divorce, Bruce had not yet reached the age of fifty-five. Therefore, OPM concluded that, at the time of divorce, Husband would only have been able to make an application for a refund of the contributions made—then totaling $89,594.61. Based on the length of the marriage, OPM calculated Wife’s share of the contributions as of the date of the divorce at $21,914.84. But the parties disputed whether Wife was entitled simply to a one-time payment of $21,914.84 representing her portion of a defined contribution plan, or whether Wife was entitled to a continuous share of Husband’s monthly annuity payment as her share of a defined benefit plan totaling $21,914.84 annually. At the conclusion of the hearing, the trial court informed the parties it would review the law and contact them once it made a ruling. Several days later, the trial court recalled the parties and requested the parties contact OPM to calculate what Husband’s monthly annuity payment would have been as of the

96 date of the divorce, assuming Husband was eligible to receive his retirement benefits at that time. Subsequently, Husband submitted a second letter from OPM stating that had Husband been eligible to receive his retirement benefits as of the date of the divorce, his monthly annuity payment would have been $3,884 per month. Based on OPM’s new calculation, the trial court awarded Wife a $1,631.28 monthly annuity payment, calculated by multiplying Wife’s 42% interest awarded in the divorce decree by the $3,884 monthly annuity payment. Husband appealed arguing the trial court erred by reopening the evidence because Wife failed to exercise due diligence in obtaining the evidence contained in OPM’s second letter. Holding: Affirmed Opinion: Texas Rule of Civil Procedure 270 provides that “[w]hen it clearly appears to be necessary to the due administration of justice, the court may permit additional evidence to be offered at any time…” In determining whether to permit additional evidence, a court should consider whether (1) the moving party showed due diligence in obtaining evidence; (2) the proffered evidence is decisive; (3) reception of such evidence will cause undue delay; and (4) granting the motion will cause injustice. Here, the record is devoid of any evidence that Wife exercised due diligence in obtaining the additional evidence. However, the lack of due diligence is but one factor appellate courts consider in determining whether the trial court abused its discretion. By requesting OPM to calculate the value of Husband’s annuity payment assuming he would have been eligible to retire as of the date of the divorce, the trial court agreed with Wife’s assertion that Husband’s retirement plan should be classified as a defined benefit plan rather than a defined contribution plan. The additional evidence was decisive and did not cause injustice because without it, the trial court could not have correctly calculated Wife’s interest in Husband’s monthly annuity payment. Accordingly, the trial court did not abuse its discretion by reopening the evidence.

ALTHOUGH MOTHER ALLEGEDLY COULD NOT READ/WRITE/UNDERSTAND ENGLISH, THE TRIAL COURT DID NOT ERR BY REQUIRING MOTHER TO PROVE UP THE TRADITIONAL ELEMENTS FOR A BILL OF REVIEW BECAUSE MOTHER FAILED TO ESTABLISH A DUE PROCESS VIOLATION AND OTHERWISE NEGLIGENTLY SIGNED AN AGREED ORDER WITHOUT MAKING THE OTHER PARTIES OR THE COURT AWARE THAT SHE REQUIRED TRANSLATION SERVICES. Castro v. Ayala, __SW3d__, No. 08-12-00142-CV, 2014 WL 1938837 (Tex. App.—El Paso May, no pet.) (05/14/2014). Facts: Mother and Father divorced in 1997. The divorce decree awarded Mother custody of the parties’ three minor children and ordered Father to pay child support. In 2010, at Mother’s request, the OAG filed a suit against Father for, among other things, failure to pay child support, totaling $15,685.44 in arrearages. Father answered by claiming Mother had voluntarily relinquished the actual possession and control of the children. Immediately before commencement of a hearing on the matter, in which Mother appeared pro se, Mother and Father reached an agreement to release Father from $12,079.44 of the alleged arrearage and to pay the remaining $3,606. As the hearing commenced, the trial court severed the contempt action and then heard other issues raised by the pleadings. After the hearing, the OAG drew up an order reflecting the parties’ agreement and reviewed the order with Mother, who signed the order along with the other parties and counsel, after which the trial court approved the order. Mother’s communications with the OAG were conducted in English. At no point in the proceedings did Mother request an interpreter, request a translation of the written agreed order, request that the order be read to her in Spanish, or otherwise indicate that she did not understand the agreement between the parties.

97 Subsequently, Mother filed a petition for bill of review claiming that she did not agree to release Father from any child support arrearage and that the OAG had engaged in extrinsic fraud by taking advantage of her inability to speak or read English and denied her an opportunity to present a meritorious claim or defense. At the hearing, Mother testified that she speaks English with sixty percent proficiency, but does not understand English and cannot read or write English. The trial court denied Mother’s petition, concluding that Mother understood English very well and in any event, was negligent in signing the order if she did not understand it, and failing to make the other parties or the court aware that she required translation services. Holding: Affirmed Opinion: Mother appealed arguing the trial court applied the wrong standard in considering whether to grant her petition for bill of review because she allegedly established a due process violation. Ordinarily, under the Texas Supreme Court’s Baker v. Goldsmith standard, a party seeking relief under a bill of review must plead and prove: (1) a meritorious defense to the underlying cause of action, (2) which they were prevented from making by the fraud, accident, or wrongful act of the opposing party or by official mistake, (3) unmixed with any fault or negligence on their part. However, under the Court’s Caldwell v. Barnes standard, if the petitioner is claiming constitutional due process, such as non-service or notice of proceedings resulting in default judgment, then the party is relieved from showing the first two elements and need only prove there was no fault or negligence on their part. Mother argued that the entering of the agreed order violated her right to have the order accurately interpreted in a language she understands. In support, Mother relied on: (1) criminal law precedent that a defendant’s right to have trial court proceedings interpreted into a language he understands is part of his constitutional right to confrontation; and (2) the due process protections in parental rights termination proceedings including a parent’s right to have the affidavit interpreted into a language he understands. However, there is no constitutional right to confrontation in a civil case and this is not a parental rights termination case. Moreover, the trial court determined that Mother speaks and understands English very well, did not request an interpreter or that the order be read to her or translated into Spanish before she signed it. Mother also testified at the enforcement hearing that she signed the order so she would receive the $3,606 payment quickly, and that the written order comported with the terms of the agreement she understood at the time she signed it. Thus, the trial court determined that Mother understood the terms of the order when she signed it, regardless of whether or not she could read English. Because Mother failed to establish a due process violation, the trial court did not err in applying the Baker standard in denying Mother’s bill of review.

BECAUSE FATHER FAILED TO ESTABLISH A RECOGNIZED EXCEPTION TO THE FULL FAITH AND CREDIT CLAUSE, THE TRIAL COURT DID NOT ERR BY CONFIRMING A FOREIGN WAGE GARNISHMENT ORDER REQUIRING FATHER’S TEXAS EMPLOYER TO WITHHOLD FATHER’S EARNINGS FOR HIS FAILURE TO PAY CONTRACTUAL SPOUSAL AND CHILD SUPPORT. Daus v. Daus, No. 05-13-00060-CV, 2014 WL 2109379 (Tex. App.—Dallas, 2014, pet. denied) (mem. op.) (05/14/2014). Facts: In 2001, Father and Mother entered into a separation and property settlement agreement under North Carolina law in which Father would pay child support and spousal support to Mother, who intended to move to Nevada with the Children. The parties agreed the terms of the agreement would not be modified and that each party was subject to or would consent to the personal jurisdiction of any jurisdiction where Mother and the Children resided. Thereafter, Mother and the Children moved to

98 Nevada, and Father moved to Texas. When Father failed to pay spousal and child support, Mother filed suit in Nevada. Following several hearings, the Nevada court reduced Father’s outstanding spousal support arrearages to judgment. Additionally, the Nevada court found that, because the 2001 agreement provided for specific enforcement, and Father had repeatedly failed to pay child and spousal support, Mother was entitled to a wage assignment order for both child and spousal support. Accordingly, the Nevada court signed a wage garnishment order requiring Father’s Texas employer to send a total of $6,938.00 each month to Mother at her Nevada address. Subsequently, Father filed in Texas a petition to register and contest the Nevada order. Mother answered, asking only that Texas give full faith and credit to the Nevada order. Following trial, the trial court concluded Father failed to establish a defense to the validity or enforcement of the Nevada order and ordered it confirmed as registered. Father appealed, arguing the trial court erred by confirming the Nevada order because the Texas Constitution forbids the garnishment of wages for debts other than court-ordered child support and spousal maintenance. Holding: Affirmed Opinion: The Full Faith and Credit Clause requires that a valid judgment or final order from one state be enforced in other states regardless of the laws or public policy of the other states. An opposing party has the burden of collaterally attacking the judgment by establishing a recognized exception to the full faith and credit requirements. Those exceptions are when a decree is interlocutory or subject to modification under the law of the rendering state, when the rendering state lacks jurisdiction, when the judgment was procured by fraud or is penal in nature, or when limitations have expired under section Texas Civil Practice and Remedies Code Section 16.066. Here, Father did not challenge the validity of the Nevada order and failed to raise a recognized full faith and credit exception. In fact, Father conceded that the Nevada court “conclusively adjudicated [Mother’s] entitlement to spousal maintenance.” His only argument is that the order cannot be enforced in Texas because the Texas Constitution prohibits the garnishment of wages except for court-ordered child support payments and spousal maintenance. However, under Full Faith and Credit, the confirmation of foreign court order may result in the garnishment of a Texas resident’s wages even though a Texas court would be limited or precluded from issuing the same substantive order against a Texas resident. Further, this is not a case wherein a party is seeking a Texas court order garnishing wages for the enforcement of a valid foreign judgment. That situation is clearly a different matter because Texas courts would then be asked to do an act that violates the Texas Constitution. Here, Mother did not request a Texas court to enforce the Nevada order; rather, she asked only that Texas give full faith and credit to the order. Because Texas courts need do nothing to enforce the valid Nevada order, the trial court did not err by confirming it.

TRIAL COURT’S AWARD OF ATTORNEY’S FEES IN ENFORCEMENT ACTION NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE UNDER THE LOADSTAR METHOD (OR ANY OTHER METHOD) BECAUSE THERE WAS NO EVIDENCE OF THE REASONABLENESS OF THE FEES; TRIAL COURT DID NOT ABUSE ITS DISCRETION BY AWARDING ATTORNEY’S FEES IN THE UNDERLYING FORECLOSURE ACTION IN THE ABSENCE OF EVIDENCE OF THE REASONABLENESS OF THOSE ATTORNEY’S FEES BECAUSE WIFE CLAIMED THEM AS AN ELEMENT OF DAMAGES. IMOMO Pyrtle, 433 SW3d 152 (Tex. App.—Dallas, pet. denied) (05/19/2014). Facts: An April 2009 Texas divorce decree provided procedures for the sale of Husband and Wife’s marital residence in Florida, a division of the sale proceeds, that Husband would retain the right to live in the residence until sale, and ordered Husband to pay the mortgage on the property until it was sold. In

99 July 2009, Wife discovered that Husband was not making mortgage payments on the residence and that although potential buyers made purchase offers on the residence, Husband would not agree to the purchase terms. Subsequently, the mortgagee initiated a foreclosure action. Attempting to avoid foreclosure, Husband hired a Florida attorney. However, the mortgagee eventually foreclosed on the property and a Florida Court rendered a judgment of foreclosure against the parties for the entire $334,830.19 mortgage balance. In November 2011, Wife filed in the Texas trial court a petition for enforcement of the divorce decree alleging Husband had failed to sign documents to effectuate a sale of the Florida property, failed to pay the mortgage as ordered in the divorce decree, and that Husband’s actions harmed Wife by causing a loss in equity on the Florida property, damaging Wife’s credit, and causing Wife to incur $1,294.00 in attorney’s fees she paid to the Florida attorney. Wife requested equitable relief to “make her whole” for the damage done in Florida and for attorney’s fees related to her enforcement suit. Following a hearing, the trial court rendered judgment against Husband for, among other things, $1,294.00 in attorney’s fees “for services rendered in Florida in connection with the foreclosure of the mortgage on the parties’ marital residence.” Additionally, the trial court awarded Wife’s Texas counsel a judgment against Husband for $7,000 in attorney’s fees. Husband appealed. Holding: Reversed and remanded Opinion: Husband argued that the evidence was legally insufficient to support the $7,000 attorney’s fees awarded to Wife’s counsel because although Wife’s counsel testified as to the number of hours spent on the case, the record contained no testimony or evidence that the time spent was reasonable and/or necessary. Both parties relied on the Texas Supreme opinion in El Apple, which involved the calculation of attorney’s fees using the lodestar method. Generally under the lodestar method for calculating attorney’s fees, the court must determine the reasonable hours spent by counsel in the case and a reasonable hourly rate for such work. To establish the number of hours reasonably spent on the case, the fee application and record must include proof documenting the performance of specific tasks, the time required for those tasks, the person who performed the work, and his or her specific rate. Here, Wife’s attorney testified that (1) she had been a licensed attorney in Texas since 1982; (2) she incurred a total of $6,008.98 in fees prior to the final hearing; (3) she incurred an additional eight hours for service on the day of the hearing hearing”; (4) she was “asking the Court for a total of $8,000.00 in attorney’s fees…”; and (5) her “total attorney’s hours” were “twenty-four total attorney’s hours” plus “ten hours of paralegal time at $100.00 an hour” and “another four hours of doing research and that type of thing.” Additionally, Wife testified that she agreed to pay her attorney $250 per hour. However, the record contained no evidence of the reasonableness of the hourly rate, the performance of specific tasks, the time required for those tasks, or the person who performed the work. Therefore, the evidence in the record was not legally sufficient to calculate a reasonable fee award using the lodestar method. Moreover, unlike in El Apple, this case did not involve a statute specifically requiring attorney’s fees to be calculated by the lodestar method. Other COAs addressing the sufficiency of the evidence to support attorney’s fees awards since El Apple have concluded that El Apple has no bearing on non-lodestar awards of fees. Here, there was no expert testimony regarding the hourly rate of Wife’s attorney or the reasonableness of those fees. Accordingly, assuming arguendo that the lodestar method did not apply, the record evidence was legally insufficient to support the trial court’s award of $7,000 in attorney's fees to Wife’s counsel. Husband argued further that the trial court abused its discretion by awarding Wife a judgment for attorney’s fees she paid to her Florida counsel because the record contained no supporting evidence of the time, reasonableness and/or necessity for the fees. The Texas Supreme Court has held that if a lawsuit contains an underlying suit that concerns a claim for attorney’s fees as an element of damages, then those fees may properly be included in a judge or jury’s compensatory damages award. Here, Wife claimed her Florida attorney’s fees as an element of her damages in the underlying foreclosure action in Florida. Therefore, Wife was not required to establish the reasonableness and

100 necessity of the Florida attorney’s fees in in order to recover them. Instead, Wife’s uncontroverted testimony that she paid $1,294 to the Florida attorney due to Husband’s failure to pay the mortgage on the Florida property was sufficient to support her claim for the Florida attorney’s fees. Accordingly the trial court did not abuse its discretion by awarding Wife a judgment for the Florida attorney’s fees.

IF A DEBTOR SPOUSE INCURS A DEBT, EVEN BEFORE HE MARRIES, THE CREDITOR MAY FILE AN ABSTRACT OF JUDGMENT AND REACH THE DEBTOR SPOUSE’S MARITAL PROPERTY IN SATISFACTION OF THE DEBT, EVEN IF THAT PROPERTY IS JOINTLY MANAGED BY HIS NON-DEBTOR WIFE. Drake Interiors, L.L.C. v. Thomas, 433 SW3d 841 (Tex. App.—Houston [14th Dist.], 2014, no pet.) (05/29/2014). Facts: In February 2000, Drake Interiors “Creditor” sold building materials to a partnership solely managed and controlled by Husband. In June 2002, Creditor filed a lawsuit against Husband and several of Husband’s business entities (collectively “Husband”) alleging that Husband had breached a promissory note covering the building materials. In October 2002, during the pendency of the lawsuit, Husband married Wife. In 2003, Husband and Wife acquired a townhome (“Asbury Property”), which they held as their joint management community property. In 2004, Creditor obtained a $44,856.95 judgment against Husband, which was made subject to a settlement agreement for a lessor amount and for installment payments, but permitted Creditor to collect the full judgment if Husband defaulted. Husband defaulted under the settlement agreement shortly thereafter. In 2006, Wife purchased and held as her sole management community property a second property (“Queenswood Property”) where Husband and Wife intended to build a new home. On January 18, 2008, Creditor abstracted and recorded the judgment from its suit against Husband in Harris County, where both the Asbury and the Queenswood properties were located. The abstract did not name Wife because she did not participate in the underlying suit against Husband. Shortly thereafter, Husband and Wife separated. Husband and Wife completely vacated the Asbury Property by August 1, 2008 and rented the property to a third party. The December 2008 divorce decree awarded Wife the Queenswood Property, which she designated as her homestead on January 1, 2009. The divorce decree also awarded Wife the Asbury Property. In April 2009, Creditor filed a declaratory action against Husband and Wife seeking a declaration that it was entitled to execute against the Asbury Property. Wife filed a counter-claim for declaratory relief. By May 2011, the time of her live pleading, Wife returned to the Asbury Property and claimed it as her homestead. Subsequently, Wife filed a motion for partial summary judgment arguing that the Asbury Property was not liable for Husband’s premarital debt. Creditor filed a cross-motion for summary judgment. The trial court granted Wife’s motion for partial summary judgment and issued an order declaring that Creditor had no lien or claim to the Asbury Property. Creditor appealed. Holding: Reversed and remanded Opinion: In her summary judgment motion, Wife argued that the Creditor’s judgment lien was invalid because there was no “community debt” for which the Asbury Property might be liable. The COA rejected this argument, observing that Texas Family Code Section 3.202(c) provides that “[t]he community property subject to a spouse’s sole or joint management, control, and disposition is subject to the liabilities incurred by the spouse before or during marriage.” This language is clear and unambiguous. Thus, if a husband incurs a debt before he marries, the creditor may reach his marital property in satisfaction of the debt, even if that property is jointly managed by his non-debtor wife.

101 Here, there is no dispute that the Asbury Property was Husband and Wife’s joint management community property. Accordingly, if Creditor’s judgment lien attached during marriage, then Creditor can reach any nonexempt community interest in the Asbury Property. Wife cannot invalidate the lien simply because the debt was not hers. Wife argued further that the judgment lien was invalid because she was not named in Creditor’s lawsuit against Husband or the final judgment. However, in construing Texas Family Code Section 3.202(c)’s predecessor statute, the Texas Supreme Court has held that for a creditor to reach joint management community property there is no requirement for the joinder of both spouses in the lawsuit. Therefore, Wife did not need to be named in the earlier lawsuit or the judgment for Creditor to reach community assets jointly managed by Husband and Wife. Section 3.202(c) makes the entirety of the joint management community property subject to the liabilities of a debtor spouse. Nevertheless, Wife relied on the Texas Supreme Court’s analysis of the doctrine of virtual representation in Cooper v. Texas Gulf Industries, 513 S.W.2d 200 (Tex. 1974). Under that former doctrine, a husband was said to have the sole power to manage the marital community, meaning that a suit naming only the husband was nonetheless binding on his wife. But in recognizing the abolishment of virtual representation, the supreme court held that “[t]he rights of the wife, like the rights of the husband and the rights of any other joint owner, may be affected only by a suit in which the wife is called to answer.” Cooper’s analysis does not apply here. When Creditor first sued Husband, the suit directly concerned Husband’s premarital debt, not his community property. Husband was still unmarried and had yet to acquire any interest in the Asbury Property. Even if Husband and Wife had been married at the time of the suit, Wife did not need to be joined as a party. If the suit concerns only a debt, the creditor does not have to join both spouses in order to later reach assets jointly held in community. In sum, Wife failed to carry her summary judgment burden. In his summary judgment motion, Husband sought two declarations, one declaring that the abstract of judgment created a valid judgment lien on the Asbury Property, and the other declaring that he was entitled to execute against the Asbury Property. Generally, a lien may not attach to property that is held as the debtor’s homestead, which is protected from all debts except those delineated by the Texas Constitution. If the property is exempt because it is the debtor’s homestead, the lien will attach only when the property has lost its homestead character. Property that has been designated as a homestead will only lose its homestead character through abandonment, death, or alienation. Proof of abandonment must be undeniably clear and beyond almost the shadow of a doubt, at least all reasonable ground of dispute, that there has been a total abandonment with an intention not to return and claim the exemption. The burden of proving abandonment rests on the party asserting it. Creditor argued that its judgment lien attached to the Asbury property on January 18, 2008—the time it recorded the abstract—because although Husband and Wife were still living at the Asbury Property, construction on the Queenswood Property was underway, and Husband and Wife intended to move into that property when construction was completed. In the alternative, Creditor argued the Asbury Property became nonexempt no later than August 1, 2008, and Wife had filed for divorce by this time, and neither she nor Husband were still living at the Asbury Property. Husband failed to prove abandonment. Abandonment cannot be shown on January 18, 2008, because Husband and Wife continued to occupy the Asbury Property—evidence conclusively showing the opposite of discontinued use. And although Creditor conclusively proved that Husband and Wife had vacated the Asbury Property by August 1, 2008, there was no clear proof of an intent to never return. The evidence showed that the Asbury Property was leased to a third party, but the temporary renting of a homestead does not constitute an abandonment so long as the claimant has not designated another homestead. Accordingly, Husband also failed to carry his summary judgment burden. The trial court’s judgment is reversed and remanded because neither party established its entitlement to declaratory relief as a matter of law.

102 TRIAL COURT HAD JURISDICTION OVER MOTHER’S MODIFICATION SUIT SEEKING SUPPORT FOR ADULT DISABLED CHILD EVEN IF THE TRIAL COURT DID NOT MAKE A DISABILITY FINDING BEFORE THE CHILD TURNED 18; TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING FATHER’S MOTION TO TRANSFER TO ANOTHER COUNTY BECAUSE FATHER FAILED TO TIMELY FILE HIS MOTION. In re Thompson, 434 S.W.3d 624 (Tex. App.—Houston [1st Dist.], orig. proceeding) (04/24/14). Facts: The trial court signed a final divorce decree between Father and Mother, providing that Father would pay child support for the Child, until the Child turned 18 or graduated from high school, whichever was later. The Child turned 18 in April 2001 and graduated from high school. The 1992 divorce decree did not note that the Child had any disability or impairment. In January 2013—approximately 21 years after entry of the divorce decree—Mother sued Father for child support alleging that the Child required substantial care and personal supervision because of a mental disability and that the disability was known to exist on or before the Child’s eighteenth birthday. Father was served with the petition on March 18, 2013. On April 23, 2013, Father answered and moved to transfer the proceeding to Liberty County, Texas arguing that venue was proper there because both Mother and the Child had resided in Liberty County for longer than a six-month period. The trial court denied Father’s motion to transfer and ruled that it has jurisdiction to conduct a hearing to determine whether it has jurisdiction over the interest of the adult Child, her disability and right to support. Father filed a petition for writ of mandamus requesting the COA to (1) dismiss Mother’s suit for lack of jurisdiction, and (2) transfer the suit to Liberty County. Holding: Petition for writ of mandamus denied Opinion: Father argued that the trial court lacked jurisdiction over the case because he satisfied the child support obligations set forth in the divorce decree. Here, the trial court had jurisdiction two ways. First, Texas Family Code 155.201 provided the trial court had continuing, exclusive jurisdiction over the matter because it rendered the final decree of divorce, which also contained provisions related to the child and none of the statutory provisions providing for a loss of such jurisdiction applied. Second, even if the trial court lost jurisdiction because Father discharged his court-ordered support obligation when the Child turned 18, the court still would have jurisdiction to hear an original suit for support of an adult disabled child pursuant to Texas Family Code 154.305(a)(2), which provides that a suit for support of adult disabled child may be filed “as an independent cause of action or joined with any other claim or remedy provided by this code.” Accordingly, the trial court had jurisdiction over Mother’s suit for support of an adult disabled child. Father argued further that the trial court lost jurisdiction over the matter because the trial court failed to find, before the Child turned 18, that the Child had a disability. Texas Family Code 154.302 provides that the court may order either or both parents to provide for the support of a child with a disability for an indefinite period if the court finds that “the disability exists, or the cause of the disability is known to exist, on or before the 18th birthday of the child. Texas Family Code 154.305(a)(1) provides further that a “suit under this chapter may be filed ... regardless of the age of the child.” Reading the statutes together makes clear that a suit for support of a disabled child can be made at any time and there is no requirement that the court make a disability finding before the child’s 18th birthday. Rather, the court must simply find that the child’s disability existed, or the cause of the disability was known to exist, prior to the child’s 18th birthday. Accordingly, the trial court did not lose jurisdiction over the matter. Father also argued he was entitled to mandamus relief because the trial court failed to transfer the case to Liberty County pursuant to his motion to transfer. Texas Family Code 155.201(b) provides for the mandatory transfer of venue for a modification case upon the timely motion of a party. Texas Family Code 155.204(b), in turn, provides a motion to transfer by a petitioner or movant is timely if it is made at the time the initial pleadings are filed whereas a motion to transfer by another party is timely if it is made

103 on or before the first Monday after the 20th day after the date of service of citation or notice of the suit or before commencement of the hearing, whichever is sooner. Here, Father was the respondent to Mother’s modification suit only (Father did not file a counterpetition) and is therefore “another party” under Texas Family Code 155.204(b) for purposes of determining the timeliness of his motion to transfer. Father was served with citation in the underlying suit on March 18, 2013. Therefore, to be timely, Father needed to file his motion to transfer by April 8, 2013—the first Monday after the 20th day after service of citation. However, Father did not file his motion to transfer until April 23, 2013. Thus, Father’s motion to transfer was untimely. Because Father’s motion to transfer was untimely, the trial court did not abuse its discretion by denying the motion.

THE EVIDENCE DID NOT SUPPORT THE TRIAL COURT’S FINDING THAT THREE SEPARATE CHECKS WRITTEN IN 2003 BY WIFE’S PARENTS ONE TO WIFE, ONE TO HUSBAND, AND ONE TO THE PARTIES CHILD WAS INTENDED ONLY AS A GIFT TO WIFE. In re Marriage of McMahen, No. 07-13-00172-CV, 2014 WL 2582886 (Tex. App.—Amarillo 2014, no pet.) (mem. op.) (06/06/14). Facts: In 2003, Wife’s parents wrote three separate gift checks totaling $50,000: 1) to Wife for $20,000; 2) to Husband for $20,000; and to the parties’ child for $10,000. Each check contained the words “a gift” written in the memo section. Husband and Wife used all of the monies to buy a house shortly thereafter. In a 2012 divorce trial, Wife’s parents testified that the they wrote the three checks separately in 2003 to avoid federal gift tax liability, and that they intended the entire $50,000 to be their Wife’s as an advancement of her inheritance. The trial court found that Wife’s parents intended to gift the entire sum to Wife alone and that there was clear and convincing evidence that the three checks were written in consideration of gift tax consequences and did not evidence the intent to make a gift to Husband or the parties’ child. Husband appealed. Holding: Reversed in part and remanded in part Opinion: Property acquired by a spouse during marriage by gift is the recipient’s separate property. But to constitute a gift, the donor must demonstrate donative intent, delivery of the property, and acceptance of that property. In determining the existence of donative intent, the window through which courts look is that existent at the time of the conveyance. Here, it was undisputed that Wife’s parents wrote three different checks payable to three different people with the words “a gift” at the bottom of each instrument. It was also undisputed that Wife’s parents intended to avoid gift tax consequences. However, missing from the record was evidence that Wife’s parents either filed amended or corrected tax returns reflecting their purported intent to gift the entire $50,000 to Wife only. Also missing was evidence that the purported advancement to Wife of her inheritance was memorialized in a will or other legal document before the Wife’s parents testified at trial. What the record did show, was that Wife’s parents made unconditional gifts, took advantage of the gift tax laws in structuring those gifts, and allowed the recipients to reap benefit from them. Not until Wife became embroiled in a divorce did her parents opt to reveal their supposedly true intent. Wife’s parents’ actions in 2003 speak louder than words in 2012, which words not only happen to contradict their prior action but also happen to favor their daughter in a divorce proceeding. Accordingly, the evidence does not support the trial court’s finding that Wife’s parents intended a gift only to Wife.

104 THERE WAS SUFFICIENT EVIDENCE THAT THE TRIAL COURT’S ATTORNEY’S FEES AWARD PURSUANT TO CPRC 38.001 WAS REASONABLE BECAUSE IT IS PRESUMED THAT THE TRIAL COURT TOOK JUDICIAL NOTICE OF THE CASE FILE AND USUAL AND CUSTOMARY FEES, SUCH FEES ARE PRESUMED REASONABLE, AND MOTHER DID NOT REBUT THE PRESUMPTION. Kendrick v. Seibert, 439 S.W.3d 408 (Tex. App.— Houston [1st Dist.] 2014, no pet.) (06/12/14). Facts: In 2009, Mother and Father signed an agreed divorce decree providing that the agreement was enforceable as a contract. The agreement gave Mother the right to maintain possession of their Children’s passports, but required her to deliver the passports to Father within ten days of Father’s notification of his intent to travel outside the U.S. with the children. The passports provision also provided that if Mother or Father violated those provisions, he or she would be liable for costs including attorney’s fees. In 2013, Father provided Mother with proper notice of his intent to travel with the Children to Canada for 3 days. After Mother refused to deliver the passports to Father, he filed a suit to modify the parent-child relationship and agreement incident to divorce. Mother did not answer the suit, but she did deliver the passports to Father two days before his scheduled travel date with the Children. At the subsequent trial, Father testified that he had paid $2,762 in attorney’s fees and costs in his efforts to obtain the passports from Mother. Following the trial, the trial court ordered Mother to pay Father’s attorney $2,762. Mother appealed arguing that there was no evidence that Husband’s attorney’s fees were reasonable. Holding: Affirmed Opinion: Central to the COA’s inquiry was under what authority Father sought and obtained attorney’s fees. Father argued that the agreed decree was enforceable as a contract and that he recovered attorney’s fees pursuant to Tex. Civ. Prac. & Rem. Code § 38.001. Mother argued that Father’s suit did not implicate § 38.001 because the case involved a suit to enforce court orders. In a divorce proceeding, the parties can enter into an agreement over the matters to be resolved in the divorce. Similarly, the parties can enter into agreements concerning matters affecting the parent-child relationship. For matters concerning the divorce and determination of the marital estate, the agreement is enforceable as a contract. For matters concerning the parent-child relationship, terms of the agreement concerning conservatorship, access to the child, or child support are not enforceable as a contract. However, any other terms concerning the parent-child relationship can be enforced as a contract. Section 38.001(8) provides that a party may recover reasonable attorney’s fees if the claim is for an oral or written contract. Tex. Civ. Prac. & Rem. Code § 38.004(1) further provides that a trial court may take judicial notice of the usual and customary attorney’s fees and of the contents of the case file without receiving further evidence in a proceeding before the court. Moreover, Tex. Civ. Prac. & Rem. Code § 38.003 provides a rebuttable presumption that the usual and customary attorney’s fees for a claim under Section 38.001 are reasonable. Appellate courts can presume that the trial court took judicial notice of the case file and of the usual and customary fees pursuant to Section 38.004. Here, the parties’ divorce decree was an agreed decree, making it both a contract and a judgment. The decree’s passport provision concerned the parent-child relationship, but it did not concern conservatorship, access to the child, or child support. Accordingly, the passport provision was enforceable as a contract under § 38.001. Mother violated the contract’s terms concerning delivery of the Children’ passports and Father filed suit seeking contractual enforcement of the passport provisions. Under the TCPRC, the trial court had authority to take judicial notice of the case file and of usual and customary attorney’s fees, which are presumed to be reasonable. Because Mother failed to rebut the presumption, the trial court’s presumed judicial notice of case file and of usual and customary attorney’s fees was legally sufficient to support a determination that the attorney’s fees award was reasonable.

105

A PERSON IS NOT EXEMPT FROM LIABILITY FOR IIED MERELY BECAUSE THE ALLEGED CONDUCT OCCURRED DURING A TROUBLED MARRIAGE Castro v. Castro, No. 13-13-00186-CV, 2014 WL 3802613 (Tex. App.—Corpus Christi 2014, pet. filed) (mem. op.) (07-31-14). Facts: Husband and Wife were married in 2007. Wife’s teenage daughter from a previous marriage lived with the couple. Soon after the marriage, Wife became pregnant, but she miscarried. Husband was unsympathetic and even denied that Wife had ever been pregnant. A few months later, Wife became pregnant with a boy, but Husband again did not believe that she was pregnant. Eventually, he conceded that she was pregnant but denied that he was the father. Throughout the pregnancy, Husband told Wife that the child would either die before it was born or soon after birth. Thus, he would not permit Wife to spend any money on the unborn child. Wife was forced to use the child support money she had received for her daughter to prepare a nursery for her son. When Husband discovered these purchases, he cancelled Wife’s credit card. During the marriage, Husband would not let Wife wear makeup because he said it made her look like a prostitute. He would not allow her to spend money. Several times, he prevented her from seeing her parents and other members of her family. Before their wedding, Husband slapped Wife after discovering a voicemail on her phone from a male friend. Twice during the marriage, Husband left for several weeks and did not tell Wife where he had gone. When Wife went on a women’s church retreat, Husband accused her of being a lesbian because she made some female friends. Husband referred to their wedding anniversary as a “Day of Mourning.” Husband also committed physical acts of violence against Wife. Twice, the couple argued in the car, leading to Husband striking Wife in front of Wife’s teenage daughter. Husband spit on Wife while she was holding their infant son. During an argument, Husband became so angry that he punched a hole in the wall. Husband pointed a gun at Wife because he did not like the tone of a question she had asked him. Wife claimed that one night she initiated sex with Husband. However, that encounter turned violent, and Husband raped her. Wife did not report the rape to the police or her doctor because she was ashamed. Wife avoided contact with her family, even when her mother was diagnosed with cancer, because Wife was ashamed of bruises she had received from Husband. Eventually, Husband filed for divorce, and with her Answer, Wife filed counterclaims for assault and IIED. The divorce and tort proceedings were severed, and the parties entered an agreed decree of divorce. The tort claims proceeded to a jury trial. During trial, Husband presented evidence that Wife had contributed to the problems in the marriage and that she exaggerated many of his alleged bad acts. After considering the evidence, the jury found that Husband had not sexually assaulted Wife, but it found in favor of Wife on her IIED claim and awarded her $30,000 for past mental anguish and $45,000 for future mental anguish. Husband appealed, (1) challenging the legal and factual sufficiency of the evidence to support either the jury’s finding of IIED or the jury’s monetary award, (2) arguing that the “gap-filler” tort of IIED was unavailable to Wife because of her assault claim, and (3) arguing that the alleged conduct, in the context of a troubled marriage, did not rise to the level of IIED. Holding: Affirmed Opinion: To recover damages for IIED, a plaintiff must show (1) intentional or reckless conduct (2) that is extreme and outrageous (3) and caused the emotional distress of the plaintiff and (4) that the distress was severe. The conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” IIED is used as a “gap-filler” tort when the victim has no other cause of redress. However, if it is shown that a defendant’s extreme and outrageous intentional actions caused severe emotional distress, the fact that defendant’s actions also caused physical harm does not preclude recovery for IIED.

106 Further, no case law has been identified “exempting a person from liability for the conduct alleged…merely because it occurred during marriage.” Here, Wife testified that Husband threatened Wife with a gun, threatened to kill her, harassed her throughout her pregnancy, told her that her baby was going to die, denied that their child was his son, and repeatedly told Wife that Husband would put the interests of his first family before her and her children. Given the totality of the evidence, a reasonable juror could determine from this evidence that Husband’s actions were “extreme and outrageous,” “atrocious,” and “should not be tolerated in a civilized community.” Husband acted intentionally to cause Wife emotional distress, and her distress was severe. Neither her claim of assault, nor the jury finding against an assault, precluded Wife from successfully establishing a separate claim for IIED. Regarding the award for future damages, Wife testified that she no longer trusted men; she did not believe that she could have a healthy, romantic relationship with a man in the future; she could not sleep at night; and she believed all romantic love was fake. The COA reasoned that Wife’s continued stress, sleeplessness, and hopelessness for future romantic love were more than mere worry, anxiety, and vexation. Thus, a reasonable jury could find that Wife would suffer compensable mental anguish in the future.

EX-WIFE OBLIGATED TO TURN OVER PROCEEDS FROM DECEASED EX-HUSBAND’S LIFE INSURANCE POLICY, BECAUSE DIVORCE DECREE AWARDED TO HUSBAND ALL LIFE INSURANCE POLICIES INSURING HIS LIFE; HUSBAND’S FAILURE TO REMOVE WIFE AS BENEFICIARY OF HIS LIFE INSURANCE POLICY DID NOT PRECLUDE HUSBAND’S ESTATE FROM SUCCESSFULLY BRINGING A POST-DISTRIBUTION SUIT. Hennig v. Didyk, 438 S.W.3d 177 (Tex. App.—Dallas 2014, pet. filed) (07-28-14). Facts: Husband and Wife divorced and signed an Agreed Final Divorce Decree that awarded each of Husband and Wife his or her own employment benefits and life insurance policies. Husband died a few years after the divorce. Soon before his death, according to testimony of his administrative assistant, Husband discovered that he had failed to change the beneficiary designation on his life insurance policy through his employer. Husband obtained his father’s social security number and changed the designation online; however, after Husband’s death, the administrative assistant learned that the change was ineffective because a paper form was required by the plan administrator to complete the redesignation. After Husband’s death, Husband’s father was appointed the independent administrator of the estate and determined that Husband’s parents were his heirs. Husband’ father made claim to the proceeds of Husband’s life insurance policy. The life insurance company filed an interpleader action in federal court to determine how to distribute the life insurance proceeds. The federal court determined that under ERISA, Wife was entitled to the proceeds, but it declined to address whether Wife was entitled to keep the funds after distribution from the plan administrator. Husband’s father filed a suit in the family court to enforce the divorce decree and order Wife to turn over the funds to Husband’s estate. The trial court found that Husband’s parents were entitled to the proceeds of the life insurance policy. Wife appealed, arguing that ERISA preempts state law, and the trial court erred in failing to give res judicata effect to the federal court’s decision awarding her the proceeds. Holding: Affirmed Opinion: ERISA provides certain requirements to ensure (1) simple administration, (2) avoiding double liability for plan administrators, and (3) ensuring beneficiaries receive their distributions quickly. Here, a federal district court ruled that under ERISA, Wife was entitled to the distribution of the life insurance proceeds. However, the federal district court also stated that it would not address whether Wife was obligated to turn the funds over to Husband’s estate. That court held that the family court was the

107 proper forum for determining the Parties’ obligations under the divorce decree. Because the federal court explicitly declined to exercise jurisdiction over that matter, res judicata did not apply. Further, the Texas Supreme Court has held that ERISA does not preempt claims under federal common law to enforce a waiver by an ex-spouse in a divorce decree of her interest in ERISA plan benefits. Allowing a postdistribution suit after a plan administrator has distributed life insurance proceeds does not frustrate the purposes of ERISA. The final decree of divorce explicitly awarded to Husband “[a]ll sums … or benefits existing by reason of the husband’s past, present, or future employment,” and “[a]ll policies of life insurance … insuring [Husband].” Similar provisions awarded Wife her own employment benefits and life insurance policies. The COA held that this language unambiguously established the Parties’ intent to sever their financial relationship and divest Wife of any interest in Husband’s life insurance policy, including any future proceeds.

ATTORNEY LETTER TO WIFE ONE DAY BEFORE HEARING DECLINING TO REPRESENT HER WAS INSUFFICIENT REASON TO CONTINUE FINAL HEARING; WIFE FAILED TO SHOW THAT HER FAILURE TO BE REPRESENTED AT FINAL HEARING WAS NOT DUE TO HER OWN FAULT OR NEGLIGENCE Jordan-Nolan v. Nolan, No. 07-12-00431-CV, 2014 WL 3764509 (Tex. App.—City 2014, no pet.) (mem. op.) (07-28-14). Facts: Husband filed for divorce. Both Husband and Wife were initially represented by counsel; however, Wife’s attorney filed a motion to withdraw on the ground of inability to effectively communicate with Wife. Approximately three weeks later, the trial court sent notice to the parties of the final hearing that was set to occur in about three months. Six days before the final hearing, Wife wrote a check to a new attorney with the notation “divorce retainer.” However, the copy of the check admitted to the trial court had the word “VOID” written across it. Wife’s former counsel forwarded her file to the new attorney at Wife’s request. Four days before the hearing, Wife filed a pro se motion for continuance, stating that she had attempted to retain new counsel. One day before the hearing, Wife received a letter from the new attorney stating that the new attorney would be unable to represent Wife. At trial, Wife refused to crossexamine Husband, testify or offer any evidence of her own, or sign the final decree. Wife appealed arguing that the trial court erred in failing to grant her motion for continuance after her attorney “withdrew” the day before trial. Holding: Affirmed as Modified Opinion: A motion for continuance based on lack of counsel must show that the failure to be represented was not based on the movant’s own fault or negligence. Here, Wife’s former counsel withdrew before the final hearing was set on the trial court’s docket. Wife had approximately three months before the final hearing to obtain new counsel. The week before the final hearing, Wife contacted an attorney, who declined to represent her. Wife failed to show that an attorney-client relationship ever existed between Wife and the second attorney. The trial court did not abuse its discretion in denying Wife’s motion for continuance. The final decree included a “Decree Acknowledgment” indicating that each party agreed that the final division was just and right. Because Wife did not agree to the final division, the COA modified the decree by deleting that paragraph.

108 TEXAS SUPREME COURT A PERMANENT INJUNCTION REQUIRING THE REMOVAL OF POSTED SPEECH ADJUDICATED TO BE DEFAMATORY IS NOT A PRIOR RESTRAINT; AN INJUNCTION PROHIBITING FUTURE SPEECH BASED ON THAT ADJUDICATION IS AN UNCONSTITUTIONAL INFRINGEMENT ON FREE SPEECH. Kinney v. Barnes, 443 S.W.3d 87 (Tex. 2014) (08-29-14). Facts: Plaintiff was employed by a legal recruiter for Defendant, until Plaintiff left that firm to start a competing firm. Several years later, Defendant posted a statement on multiple websites implicating Plaintiff in a kickback scheme and accusing Plaintiff of paying bribes in exchange for law firms hiring his candidates. Plaintiff sued Defendant for defamation. Rather than seeking damages, Plaintiff sought a permanent injunction against defamation requiring Defendant to (1) remove the defamatory statements from the websites, (2) contact third-party re-publishers of the statements to have the statements removed, and (3) conspicuously post a copy of the permanent injunction on Defendant’s website. Defendant filed an MSJ on the grounds that the relief sought would constitute an impermissible prior restraint on speech. The trial court granted the MSJ, and the COA affirmed that decision. Plaintiff argued (1) that a “post-trial remedial injunction” was not properly characterized as a prior restraint and (2) that defamatory speech was not protected speech, so an injunction would be permissible. Holding: Reversed and Remanded Opinion: The First Amendment of the U.S. Constitution and Art. I, § 8 of the Texas Constitution provide for the right of free speech. There is a heavy presumption against the constitutionality of prior restraints, or “pre-speech sanctions.” An injunction, whether temporary or permanent, that prohibits speech is inherently a prior restraint on speech because it prevents future speech. However, the right to free speech is not absolute. For example, common law has long recognized a cause of action for damages for defamation. The appropriate remedy for defamation is not an injunction but, rather, damages. An abuse of the privilege of free speech is to be remedied by appropriate penalties, not by a denial of the right to speak. In some cases, a prior restraint may be permissible to avoid an impending danger, if the restraint is the least restrictive means of preventing that harm; however, defamation alone is not sufficient justification for restraining an individual’s right to speak freely. Further, an attempt to enjoin against future defamation would necessarily be ineffective, overly broad, or both. If an injunction were narrowly written, the defamer would be enticed to engage in wordplay and modify the statement just enough to express the same message without violating the injunction. Alternatively, an attempt to expand the reach of the injunction to include such modifications would result in an overly broad injunction. Plaintiff raised a valid concern that damages may not deter a defamer, either because the defamer lacks the funds to pay the damages or has so much money that the fine is immaterial. However, the constitutional protection of free speech is not tied to a person’s financial status. A prior restraint cannot be conditioned on a defendant’s inability to pay an award of damages. In addition, the potential inadequacy of damages to make a plaintiff whole does not justify opening the door to additional relief. Damages, while “imperfect” is the remedy the law gives to defamation victims. On the other hand, an injunction ordering the removal of statements adjudicated to be defamatory from a website does not prohibit future speech. Such an injunction would effectively require the erasure of unprotected past speech and would constitute a proper remedy for an abuse of the liberty to speak, not a prior restraint. Thus, because a portion of Plaintiff’s requested relief included a permissible injunction to remove statements if adjudicated to defamatory, the trial court erred in granting Defendant’s MSJ.

109 TRIAL COURT LACKED PLENARY POWER TO RENDER JUDGMENT IN NEW TRIAL BECAUSE NO WRITTEN ORDER GRANTING THE NEW TRIAL HAD BEEN SIGNED. In re Torres-Medina, No. 05-14-01046-CV, 2014 WL 4403830 (Tex. App.—Dallas 2014, orig. proceeding) (mem. op.) (09-08-14). Facts: The trial court rendered judgment in the Parties’ divorce and signed a final decree of divorce that did not order either party to pay child support. Mother filed a motion for new trial, and the trial court held a hearing on Mother’s motion. The trial court orally granted a new trial, requested that Father draft the order granting the new trial, and directed the Parties to obtain a setting for a new trial. At the beginning of the new trial, the judge noted that he could not find an order granting new trial in the file, but he believed he had signed such an order. Father’s attorney did not comment, and the new trial proceeded. At the conclusion of the new trial, the trial court rendered judgment and signed a second decree that ordered Father to pay child support. Father filed a petition for writ of mandamus, contending that the trial court lacked the power to render the second decree because its plenary power had expired. Holding: Writ of Mandamus Conditionally Granted Opinion: An order granting a new trial must be written, in the form of an order, and must be express and specific. An oral order is ineffective, even when accompanied by a docket entry and scheduling order. Without a valid order granting a new trial, the trial court’s plenary power is not extended and will expire after 30 days. Here, there was no written order, so the subsequent retrial was a nullity, and the trial court lacked the power to sign the second divorce decree.

MOTHER’S JURY DEMAND WITHOUT PAYMENT OF JURY FEE EFFECTIVE BECAUSE TRIAL COURT APPROVED HER AFFIDAVIT OF INDIGENCY; SUBSEQUENT CHANGE IN FINANCIAL CIRCUMSTANCES DID NOT RENDER JURY DEMAND INEFFECTIVE. In re Vaughn, No. 12-14-00006-CV, 2014 WL 4922640 (Tex. App.—Tyler 2014, orig. proceeding) (mem. op.) (09-17-14). Facts: Mother and Father had four Children. TDFPS filed a petition for protection, conservatorship, and termination. Mother filed an affidavit of indigence, and the trial court signed an order finding that Mother’s affidavit had been properly filed and appointed counsel to represent her. Subsequently, Mother’s appointed counsel filed a jury demand and noted that Mother’s Affidavit of Indigency had been approved by the trial court, so Mother did not include the customary $30 jury fee. Afterwards, the trial court signed an order setting the case for pre-trial and trial. One month after that, the trial court approved Mother’s motion to substitute counsel, and Mother discharged her court-appointed attorney. At a hearing, the trial court noted that a jury demand had been filed, but the jury fee had not been paid. Further, the trial court stated that because Mother did not rectify the failure to pay and because a jury trial would delay the proceedings, the case was set for bench trial that month. Mother and Father each objected stating that the jury fee was waived by the finding of indigency. The trial court denied the requests to proceed with a jury trial. Mother and Father filed a petition for writ of mandamus. Holding: Writ of Mandamus Conditionally Granted Opinion: Upon timely request, a party is entitled to a jury trial in a termination proceeding. Pursuant to TRCP 216, a party must submit a written request for a jury and pay the jury fee at least 30 days prior to the trial date. However, pursuant to TRCP 217, if a party has filed an effective affidavit of indigency prior to that deadline, the court “shall” enter the suit on the jury docket without requiring the jury fee.

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ORDER OF CONSTRUCTIVE CONTEMPT VOID BECAUSE ALLEGED CONTEMNOR WAS NEVER SERVED WITH SHOW CAUSE ORDER In re Miller, No. 05-14-01023-CV, 2014 WL 4700682 (Tex. App.—Dallas 2014, orig. proceeding) (mem. op.) (09-23-14). Facts: The trial court held a hearing on a motion to compel the production of documents, at which the movants appeared, but Relator did not. The trial court ordered Relator to produce documents within about one week from the hearing, but the order was not signed until two weeks after the hearing. That order also set a temporary injunction hearing. Subsequently, because Relator had not produced documents, the movants filed a motion for an order to show cause, requesting the trial court to order Relator to appear and show cause as to why he should not be sanctioned. No show cause order appeared on the trial court’s docket sheet. When the parties appeared at the previously scheduled temporary injunction hearing, the trial court found Relator in constructive contempt and ordered Relator committed to county jail. Relator filed a petition for writ of habeas corpus. Holding: Writ of Habeas Corpus Granted Opinion: A petition for writ of habeas corpus asks a COA to determine whether the order of contempt was void. A judgment of constructive contempt must be preceded by personal service on the alleged contemnor of an appropriate show cause order or legally equivalent method of notice, which states when, how, and by what means the defendant is allegedly in contempt. Here, the trial court did not issue any order to Relator to show cause why he should not be held in contempt. Therefore, the subsequent order of contempt was void.

MANDAMUS RELIEF AVAILABLE FROM TEMPORARY ORDERS ISSUED BY AN ASSOCIATE JUDGE. PARTIES’ SEPARATION AGREEMENT SATISFIED REQUIREMENTS OF PARTITION OR EXCHANGE AGREEMENT DESPITE LACK OF USE OF THE WORD “PARTITION”; TRIAL COURT ERRED IN ORDERING SPOUSAL SUPPORT PAYMENTS WHEN THERE WAS A PRESUMPTIVELY VALID PARTITION OR EXCHANGE AGREEMENT. In re Eaton, No. 02-14-00239-CV, 2014 WL 4771608 (Tex. App.—Fort Worth 2014, orig. proceeding) (mem. op.) (09-25-14). Facts: Husband and Wife separated but did not file for divorce. Instead, they signed a separation agreement that would be “a full, final, fair, and equitable division of their community estate effective as of [the date of their separation].” The agreement provided that all future earnings would be the separate property of the respective party, and each would waive any claim to the separate property of the other. Further, Husband agreed to continue to provide medical coverage for Wife through his employer and to pay Wife a lump sum followed by periodic payments for the next two years. In exchange for the payments, Wife agreed any claim she might have against Husband or the community estate would be fully satisfied by the agreement. Three years after the final periodic payment from Husband, Wife filed a petition for divorce asking for a disproportionate share of the community estate. Husband answered and asserted that the separation agreement should be enforced. After a temporary orders hearing before an associate judge without a court reporter, the associate judge entered a report for temporary orders requiring Husband to pay $6,000 per month in temporary spousal support and $5,000 in interim attorney’s fees. Husband filed a motion to

111 reconsider, but the associate judge denied Husband’s motion and entered temporary orders consistent with her report. Husband filed a petition for writ of mandamus. Wife argued that Husband was not entitled to mandamus relief because there was no reporter’s record and because Husband failed to seek de novo review. Holding: Writ of Mandamus Conditionally Granted Opinion: Whether the trial court’s temporary orders violated the terms of the Parties’ separation agreement was a question of law, meaning that the hearing testimony bore no legal effect. Additionally, the Parties did not dispute the facts adduced at the hearing. Thus, no reporter’s record was required. In addition, per Texas Family Code Section 201.016(a), Husband’s failure to seek de novo review did not deprive him the right to appeal to or request other relief from the COA. Although signed by the associate judge, the temporary orders constituted an order of the referring court. See Tex. Fam. Code Ann. § 201.007(c) (providing associate judge’s temporary orders are construed to be orders of referring court). To be a valid partition or exchange agreement, the agreement must (1) be in writing, (2) be signed by both parties, and (3) either contain a reference to partition or show an intent to convert community property into separate property. The agreement need not contain the word “partition” if it is clear that the parties intended a partition. Here, there was no dispute that the agreement was in writing and signed by the parties. Further, although it did not contain the word “partition,” the agreement clearly established the Parties’ intent to divide their community estate and recharacterize it as their respective separate property. A partition or exchange agreement is presumptively enforceable, and the party that seeks to show it to be unenforceable bears the burden to show it was involuntarily executed or unconscionable. Wife did not assert either of these bases for unenforceability, and she did not ask the court to rule on the agreement’s validity. Thus, the agreement was presumptively enforceable and needed no judicial approval to be effective. The purpose of temporary spousal maintenance is to protect the welfare of a “financially dependent” spouse during the pendency of a divorce. Here, the Parties’ agreement clearly partitioned the community estate, waived all future claims, and obligated Husband to make payments to Wife for a set period of time. The last payment due to Wife was paid three years before Wife filed for divorce. At the time of the hearing, there was no community estate, and Wife received no monetary support from Husband. The trial court clearly abused its discretion by ordering temporary spousal support and interim attorney’s fees when there was a presumptively valid partition or exchange agreement.

MOTHER’S ASSERTION OF A MATERIAL AND SUBSTANTIAL CHANGE IN CIRCUMSTANCES IN HER PETITION TO MODIFY POSSESSION AND ACCESS WAS NOT A JUDICIAL ADMISSION OF A MATERIAL AND SUBSTANTIAL CHANGE TO SUPPORT A MODIFICATION OF SPOUSAL MAINTENANCE. Rother v. Rother, No. 04-13-00899-CV, 2014 WL 4922898 (Tex. App.—San Antonio 2014, no pet. h.) (mem. op.) (10-01-14). Facts: Mother and Father divorced. The divorce decree appointed them JMCs of their only Child and provided Father with a standard possession order. In addition, the decree ordered Father to pay monthly spousal maintenance. Subsequently, Father filed a petition to modify the decree with respect to the standard possession order and the order for spousal maintenance. Father alleged that the circumstances had materially and substantially changed to support both requests. Mother filed a counter-petition also asserting a material and substantial change in circumstances but only seeking a modification of Father’s possession and access to the Child. Mother then filed a no-evidence MSJ asserting there was no evidence of a material and substantial change in circumstances supporting a request to modify spousal

112 maintenance. Further, Mother stated that neither Party’s employment nor income had changed since the divorce decree. Father filed a response to the MSJ arguing Mother judicially admitted in her counterpetition to a material and substantial change in circumstances. The trial court granted Mother’s MSJ. Father appealed. Holding: Affirmed Opinion: Before a trial court can modify spousal maintenance, the party moving for modification must establish a material and substantial change in circumstances. If both parties are seeking to modify the same provision of an order, such as conservatorship, a counter-petition alleging the existence of a material and substantial change in circumstances is a judicial admission. Here, however, Father sought to modify spousal maintenance, and Mother’s counter-petition sought to modify Father’s possession and access to the Child. Further, Mother specifically asserted that neither party’s employment nor income had changed and that no other factor relevant to determining spousal maintenance had changed since the prior order. Thus, in Mother’s counter-petition, her assertion that there had been a material and substantial change in circumstances applied only to her request to modify Father’s possession schedule. Father presented no evidence of a material and substantial change to support his request to modify spousal maintenance.

TEXAS SUPREME COURT MOTHER WAS ENTITLED TO RESTRICTED APPEAL BECAUSE THE RECORD ESTABLISHED THAT SHE DID NOT PARTICIPATE IN UNDERLYING PROCEEDING; FINAL DECREE CONTAINED TWO CONFLICTING RECITATIONS INDICATING THE DATE OF FINAL HEARING, BUT THE COURT’S DOCKET SUPPORTED ONLY ONE OF THE RECITATIONS Pike-Grant v. Grant, ___ S.W.3d ___, 2014 WL 4933010, 13-0277 (Tex. 2014) (10-03-14). Facts: Mother and Father began divorce proceedings approximately one year after their only Child was born. The trial court issued temporary orders naming the Parents JMCs. Over a year later, Father successfully moved to modify the temporary orders to appoint him SMC. A few months later, the court coordinator notified the attorneys of record of a September trial date. Mother’s attorney filed a motion to withdraw that day and stated that he had not had contact with Mother in over a year. However, Mother’s attorney indicated that he would attempt to notify Mother of the setting. Additionally, Mother’s attorney stated that he could not attend the September hearing due to a trial date in another matter. The trial court granted a motion by Father to appear telephonically. At the September hearing, Father appeared telephonically, his attorney appeared in person, but neither Mother nor her attorney appeared. The trial court called Mother’s attorney to determine whether Mother had received notice of the hearing, but the attorney did not answer. At the conclusion of the hearing, the trial court informed Father that it would not be able to enter a judgment until after a response from Mother regarding whether she intended to participate. Two months later, in November, the trial court signed a final decree that included two conflicting recitations. On the first page, a hand-written notation indicated that the trial court heard the case in November, and type-written text indicated that Mother and her attorney appeared and announced ready for trial. However, the final decree also recited that “the final Hearing for Divorce” occurred in September. Subsequently, Mother field a restricted appeal. The COA dismissed the restricted appeal, relying on the recitation on the first page indicating that Mother had participated in the underlying hearing. Holding: Reversed

113 Opinion: A party is eligible for restricted appeal if (1) the party filed notice of the restricted appeal within six months of the judgment, (2) the party was a party to the underlying suit, (3) the party did not participate in the hearing that resulted in the judgment and did not file any prejudgment motions, and (3) error is apparent on the face of the record. Whether a party seeking restricted appeal participated in the underlying suit should be construed liberally in favor of the right to appeal. Here, although the final decree indicated that a hearing occurred in November and that Mother appeared at the hearing, nothing in the court’s record supported that recitation. There was a reporter’s record for the September hearing but not for a November hearing. The reporter’s record clearly showed that neither Mother nor her attorney appeared at the September hearing. The docket reflected that the court coordinator notified the parties of the September trial setting, but there was no record of notice being given for a November setting. The trial court granted Father’s motion to appear telephonically at the September hearing. The docket showed that Mother’s attorney filed a motion to withdraw on the same day the coordinator notified him of the September trial setting. Temporary orders issued by the trial court pending appeal indicated that the final decree was signed in November and that the orders where rendered in September. Therefore, it was clear from the record that Mother did not participate in the underlying suit, and the COA erred in concluding it had no jurisdiction over Mother’s restricted appeal.

PURSUANT TO TRCP 680, MOTHER NOT ENTITLED TO SECOND EXTENSION OF TRO AGAINST FATHER BECAUSE FATHER DID NOT CONSENT TO AN EXTENSION. In re Hauck, No. 03-14-00640-CV, 2014 WL 5315370 (Tex. App.—Austin 2014, orig. proceeding) (mem. op.) (10-13-14). Facts: During their divorce proceeding, Mother obtained a TRO that restrained Father from having any contact with their Child. About 10 days later, Mother obtained an extension of the TRO. About two weeks after that, Mother obtained a second extension, over Father’s objection. Father filed a petition for writ of mandamus. Holding: Writ of Mandamus Conditionally Granted Opinion: TRCP 680 provides that a TRO may be extended only once for an additional 14 days, unless the party against whom the order is directed consents to a longer extension. This provision is a safeguard against harm caused by a restraint on one who has not yet had an opportunity to a truly adversarial proceeding. Here, the TRO had already been extended once, and Father objected to a second extension. In fact, the trial court noted in its ruling that the extension “was opposed by Respondent.”

FATHER’S FAILURE TO FILE A STATEMENT OF POINTS OR ISSUES WITH HIS APPEAL BASED ONLY ON A PARTIAL REPORTER’S RECORD DID NOT PREJUDICE MOTHER BECAUSE HIS ISSUES WERE INCLUDED IN HIS NOTICE OF APPEAL; NO EVIDENCE SUPPORTED TRIAL COURT’S ORDER FOR FATHER TO REIMBURSE MOTHER FOR MILEAGE DURING EXCHANGES OF THEIR CHILDREN. In re B.P.R., No. 09-12-00575-CV, 2014 WL 5306530 (Tex. App.—Beaumont 2014, no pet. h.) (mem. op.) (10-16-14). Facts: Mother filed a SAPCR to modify a prior order that controlled the parent-child relationship between Mother and Father. Father filed a counterpetition, which agreed that the circumstances had changed but requested different relief. After trial, the trial court rendered a modified order that designated Mother as the conservator with the exclusive right to designate the primary residence of the Children and

114 allowed her and the Children to live anywhere in Texas. The location for exchanges of the Children was designated as the midpoint between Mother’s and Father’s current residences. Father was ordered that if he chose to exchange the Children at that designated location, rather than Mother’s residence, Father was to reimburse Mother for her mileage. Father only requested a partial reporter’s record and appealed only the portion of the order related to the mileage reimbursement, arguing that Mother was not entitled to that relief because she had not pleaded for it and that the decision was arbitrary because it was not fair and equitable. Mother argued that the COA was required to affirm the trial court’s ruling because Father failed to file a statement of points or issues to be presented on appeal. Holding: Affirmed as Modified Opinion: TRAP 34.6 allows a party to pursue an appeal from a partial appellate record, which serves as “the entire record for purposes of reviewing the stated points or issues.” The Texas Supreme Court has held that the statement of points or issues need not be included in the request for the reporter’s record unless the appellee has been prejudiced by the appellant’s tardiness. Father filed a notice of appeal indicating that the only issues he intended to appeal was the order for him to “reimburse [Mother’s] mileage … for pickup and delivery of the children[]” and “the option to pick up and return the children at the residence of [Mother] to avoid paying mileage.” These were the same issues raised by Father six months later in his brief. Mother was given timely notice of the limited appeal and the fact that Father had filed a partial record. Mother had the opportunity to designate any additional records she believed to be relevant, but she opted not to do so. In fact, Mother indicated that “no additional record was necessary,” and she did not argue that she was prejudiced by any ambiguity interjected by Father. Thus, Father’s failure to file a statement of points or issues did not constitute a reason for the COA to affirm the trial court’s ruling. Father was not required to object at trial to the trial court’s decision regarding the mileage reimbursement before raising a sufficiency argument on appeal. However, his failure to object did waive his complaint that Mother failed to plead her claim to be reimbursed for mileage. Based on the partial record, the evidence did not provide any reason for Mother’s decision to move, while Father maintained his residence. Further, no evidence was presented regarding the financial circumstances of either Mother or Father. Texas Family Code Section 156.103(b) creates a rebuttable presumption that the child’s best interest is served by imposing increased expenses on the party who moved. No evidence was presented to rebut that presumption.

WIFE’S MOTION FOR REHEARING DENIED BECAUSE SHE RAISED NEW ISSUES FOR THE FIRST TIME IN HER MOTION FOR REHEARING Kastelman v. Kastleman, ___ S.W.3d ___, 2014 WL 5420411, 03-13-00133-CV (Tex. App.—Austin 2014, no pet. h.) (10-23-14) (supplemental opinion on denial of rehearing). Facts: Wife filed a motion for rehearing raising new alternative arguments after the COA dismissed her appeal as moot on the ground that she was estopped from appealing based on the acceptance of benefits doctrine. (Kastelman v. Kastleman, No. 03-13-00133-CV, 2014 WL 2014 WL 3809759 (Tex. App.— Austin 2014, no pet. h.) (07-30-14) (mem op.)). Holding: Rehearing Denied Opinion: A motion for rehearing provides a court with an opportunity to correct errors, not to test alternative arguments after an unsuccessful appeal. A new issue can only be raised in a motion for rehearing if the error is fundamental. Here, Wife attempted to raise multiple new arguments in her motion for rehearing, none of which constituted fundamental errors. Thus, her new arguments were waived.

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HUSBAND WAS ESTOPPED FROM CHALLENGING PROPERTY DIVISION BECAUSE HE ACCEPTED THE BENEFITS OF THE JUDGMENT BY TRANSFERRING PROPERTY TO HIS NEW WIFE Domit v. Domit, No. 13-14-00001-CV, 2014 WL 5500475 (Tex. App.—Corpus Christi 2014, no pet. h.) (mem. op.) (10-30-14). Facts: In Husband’s and Wife’s divorce decree, Husband was awarded a 100% interest in the Property, in which the community estate had a 61.49% interest. Husband was also ordered to pay $1875 in monthly child support. Husband appealed, arguing that the trial court erred in failing to provide detailed findings of fact and conclusions of law on the valuations of specific properties and that the division of the estate was unfair and unjust. In addition, Husband also argued that the trial court erred in ordering him to pay child support without entering any findings or conclusions. After perfecting his appeal, Husband transferred his entire interest in the Property to his new wife, who listed the Property for sale with Husband as real estate agent. Wife filed a motion to dismiss the appeal, asserting that the appeal was moot because Husband accepted the benefits of the judgment. Holding: Dismissed in Part; Affirmed in Part Opinion: Generally, a party who accepts the benefits of a judgment is estopped from challenging it. The initial burden is on an appellee to show that the appellant is estopped. Once the appellee has established the doctrine applies, the burden shifts to the appellant to establish one of two narrow exceptions: (1) the acceptance was due to financial duress or other economic circumstances; or (2) the appellant only accepted “that which appellee concedes, or is bound to concede, to be due him under the judgment.” This exception “does not tolerate chance or uncertainty.” Here, Husband argued that he only accepted benefits that Wife was bound to concede were due to him. However, he also asked the court to declare the judgment of divorce “null and void,” require the trial court to issue detailed findings of facts and conclusions of law valuing all community and separate property, and remand the estate to the trial court for a new just and right division. The Company was 61.49% community property and Husband was awarded a 100% interest in the Company. Husband did not explain why he would unquestionably be entitled to a 100% award of the Company if the trial court were to perform a new just and right division. Because of this “chance or uncertainty,” Husband was estopped from challenging the property division on appeal. However, Husband’s challenge to child support was severable from the property division and could be challenged despite an acceptance of benefits of the division of property.

FATHER FAILED TO PRODUCE ANY EVIDENCE CONTROVERTING MOTHER’S TESTIMONY AND DOCUMENTARY EVIDENCE. Reyes v. Reyes, ___ S.W.3d ___, 2014 WL 6982243, 08-13-00070-CV (Tex. App.—El Paso 2014, no pet. h.) (12-10-14). Facts: Mother and Father were married with 3 Children. No discovery was conducted prior to trial, and neither party filed a sworn I&A. The trial court did not issue findings of facts and conclusions of law. Mother testified about family violence and the value of certain assets. She testified that although Father had not been involved in the Children’s lives, more involvement would be in the Children’s best interest. Father’s counsel did not ask Mother any questions. After Mother’s attorney rested, Father’s attorney also rested without calling any witnesses. The trial court divided the community estate and appointed the

116 parents JMC, with Mother being awarded the exclusive right to determine the Children’s primary residence. Father was granted a standard possession schedule and was ordered to pay child support, medical support, and 50% of unreimbursed medical expenses. Father appealed, contesting the sufficiency of the evidence to support the conservatorship appointment, child support, the division of the marital estate, and “reimbursement” to Mother. Holding: Affirmed Opinion: There is a presumption that appointing parents as JMC of a child is in the child’s best interest. If a party seeks SMC, that party must introduce evidence to rebut the JMC presumption. Although Father requested “full custody” on the stand, he did not plead for that relief. Further, he offered no evidence to rebut the JMC presumption. In fact, Father testified that because he worked two jobs, he was currently unable to care for the Children, and Father’s future plans, if he were to be awarded “full custody,” were speculative at best. Moreover, the parties’ divorce was granted on the grounds of Father’s cruelty against Mother. Mother entered a tax return that indicated the amount of Father’s income, which Father did not controvert. The child support award was within the TFC guidelines based on that information. An appellant who does not provide property values to the trial court cannot complain on appeal of the trial court’s lack of complete information. Father presented no evidence to contradict Mother’s values. Moreover, based on the values provided, the trial court divided the estate equally. Both parties testified that the parties’ house could not be sold in its current condition. Thus, the trial court could have reasonably found the value of the house was $0 and did not err in awarding it to Mother. Father complained that the trial court improperly “reimbursed” Mother for health insurance coverage and the parties’ tax refund. However, the tax refund was community property, which the trial court divided equally. Further, the order requiring Father to pay health insurance was within the mandates of the TFC.

TRIAL COURT REQUIRED TO ABATE DIVORCE SUIT IN DEFERENCE TO FIRST-FILED INTERPLEADER SUIT WITH DOMINANT JURISDICTION In re Benavides, No. 04-14-00718-CV, 2014 WL 6979438 (Tex. App.—San Antonio 2014, orig. proceeding) (mem. op.) (12-10-14). Facts: A guardian of the person (“GOP”) and a guardian of the estate (“GOE”) had been appointed to Husband in a separate proceeding. A bank filed an interpleader action to interplead funds from assets belonging to Husband and Wife due to competing claims made to the same funds by Wife and the GOE in district court. Subsequently, the GOP filed for divorce on Husband’s behalf in the county court. Wife filed a cross-claim against the GOE in the interpleader action for breach of contract, tortious interference, money had and received, and under the Texas Theft Liability Act. Wife also filed a plea of abatement in the divorce proceedings (county court), asserting that the court in which the interpleader action (district court) was filed had dominant jurisdiction over the parties’ marital assets. The plea in abatement was denied and the trial court set the divorce for trial. Wife filed a petition for writ of mandamus. Holding: Writ of Mandamus Conditionally Granted Opinion: As a general rule, when cases involving the same subject matter are brought in different courts, the first-filed case has dominant jurisdiction, and the other case should be abated. To succeed on a motion to abate a second-filed suit, the movant most show (1) a suit in another court was commenced first; (2) the first-filed suit remains pending; (3) the first-filed suit includes or could be amended to include all the

117 parties; and (4) the controversies are the same or the first-filed suit could be amended to include all of the claims. Here, the GOP and the GOE did not dispute that all the above requirements were satisfied. Rather, they argued that because the second-filed divorce was not a compulsory counterclaim to an interpleader action, the rule of dominant jurisdiction should not apply. However, while a compulsory counter-claim is a type of claim that should be abated, it is not the only type subject to abatement. Additionally, the GOP and GOE argued that Wife could not “manufacture” dominant jurisdiction through her cross-claims in the first-filed suit. However, the interrelation between the two suits existed, at least in part, prior to Wife’s cross-claims. The fact that her cross-claims expanded the number of issues of overlap did not preclude her from seeking to abate the second-filed suit. Finally, if a second court issues orders that actively interferes with the jurisdiction of the court with dominant jurisdiction, mandamus relief is available. Here, the second court set the divorce for trial. Thus, Wife was entitled to mandamus relief.

FATHER’S MOTIONS TO RECUSE TRIAL COURT JUDGE FAILED TO ESTABLISH THAT ANY BIAS, PREJUDICE, OR PARTIALITY AROSE FROM EVENTS OUTSIDE OF JUDICIAL PROCEEDINGS Fox v. Alberto, ___ S.W.3d ___, 2014 WL 6998094, 14-13-00007-CV (Tex. App.—Houston [14th Dist.] 2014, no pet. h.) (12-11-14). Facts: Father, an attorney, filed a suit to establish his paternity and adjudicate his parental rights to his twin boys. Just before a scheduled hearing, the trial court Judge ordered the bailiff to take away Father’s cellphone while he was in the courtroom. Father refused, and the Judge ordered the bailiff to place Father in a jail cell within the same building. While being dragged to the jail cell, Father shouted that he demanded his right as a licensed attorney to be released on his own recognizance and for a hearing before a different judge. The Judge denied Father’s demand. Father remained in a jail cell for about twenty minutes, during which time, according to Father’s allegations, opposing counsel stole motions from Father’s file in the trial courtroom. When Father returned to the courtroom, he saw the motions in the opposing counsel’s stack of papers and retrieved them. When the scheduled hearing began, Father demanded a court reporter, but the Judge denied the request because it was a temporary orders hearing. When Father was called to testify, he presented to the Judge a one-sentence, hand-written motion, which read, “Comes now, Petitioner, [Father], and makes this demand for the immediate recusation of [the Judge] from the above entitled and numbered cause.” The Judge stopped the proceedings and referred the motion to the presiding administrative judge. Subsequently, Father filed a “supplemental” motion to recuse the trial court Judge. The administrative judge dismissed the first motion because it did not comply with TRCP 18a and held a hearing on the second motion. During the hearing, the administrative judge heard argument but did not allow Father to present evidence. Father’s second motion was denied and the underlying case proceeded to jury trial. Mother and Father were appointed JMC, and Father was ordered to pay child support. Father appealed, arguing that the administrative judge erred in denying his motions to recuse the trial court Judge. Holding: Dismissed in Part; Affirmed in Part Opinion: When a party seeks a judge’s recusal based on bias, prejudice, or partiality, the party must show either that (1) the bias, prejudice, or partiality arose from events outside of judicial proceedings; or (2) the judge has displayed a deep-seated favoritism or antagonism that would make fair judgment impossible. Events occurring outside of judicial proceedings must have an “extrajudicial source.” Events occurring in a separate judicial proceeding are not “outside of judicial proceedings.” Here, even if Father’s allegations were true, Father described the events as taking place “in open court.” All of the events in Father’s motion

118 occurred in the courtroom of the trial court, and the Judge was acting in her capacity as presiding judge of that court. Moreover, even if Father’s allegations were true, they did not rise to the level of a “deep-seated favoritism or antagonism that would make fair judgment impossible.” Father’s remaining issues were dismissed for failure to preserve error or failure to adequately brief his issues for appellate review.

TRIAL COURT ERRED IN GRANTING INJUNCTIVE RELIEF NOT SUPPORTED BY THE PLEADINGS OR TRIED BY CONSENT; TRIAL COURT WAS NOT AFFORDED DEFERENTIAL BEST INTEREST STANDARD BECAUSE INJUNCTIVE RELIEF WAS NOT DIRECTLY RELATED TO CUSTODY, CONTROL, POSSESSION, AND VISITATION OF THE CHILD. King v. Lyons, ___ S.W.3d ___, 2014 WL xxxxxxx, 01-13-01089-CV (Tex. App.—Houston [1st Dist.] 2014, no pet. h.) (12-30-14). Facts: Mother and Father were divorced with one Child. Mother filed a SAPCR seeking an order requiring Father to pick up the Child at the curb of her residence, rather than her door—about a 60-foot difference. Father filed a counter-petition seeking an injunction requiring the Parents to communicate exclusively through a website designed to facilitate shared child custody. Neither Parent sought an injunction to keep the other away from his or her home or place of employment. The record of the two-day trial established the Parents’ history of bickering, incivility, and inability to cooperate. Mother testified that Father sent her repetitious, confrontational communications by text, telephone, and email. Both Parents testified to feeling threatened by the other. Father testified that he felt threatened by the presence of law enforcement and others when exchanging the Child. Mother denied ever having law enforcement present except for a building security guard when she was living in a highrise condominium. Neither Parent testified about the other parent’s behavior around their respective places of employment. The trial court’s final order required the Parent’s to communicate only through a website, to exchange the Child at Mother’s curb, and to comply with mutual permanent injunctions requiring both Parent’s from going within 200 yards of the other Parent’s home or place of employment, with exceptions for exchanging the Child or traveling on public streets. The court found that the injunctions were necessary due to the high level of animosity between the parties and were in the best interest of the Child. Both Parents appealed, arguing that the injunctions against them were not supported by the pleadings or tried by consent. Holding: Reversed and Vacated in Part Opinion: A judgment must be supported by the pleadings. Pleadings provide the opposing party notice and information necessary to prepare a defense. Although pleadings should be liberally construed, a court may not use a liberal construction as a license to read into the petition a claim it does not contain. When an issue not raised by the parties is tried by express or implied consent of the parties, the issue is treated as if it had been raised by the pleadings. To establish that an issue has been tried by consent, there must be evidence of trial of the issue. An issue is not tried by consent if the evidence relevant to that issue is also relevant to other issues raised by the pleadings. In matters concerning custody, control, possession, and visitation, a trial court may grant injunctive relief that is in the best interest of the child and is consistent with the allegations, general prayers for relief, and evidence, without the need for strict proof of the existence of a wrongful act, imminent harm, irreparable injury, and the absence of an adequate remedy at law. However, if the case does not concern the custody, control, possession, or visitation, the party seeking injunctive relief must show entitlement to such relief as required in any civil case.

119 Here, neither Parent pleaded for the injunctions imposed by the trial court. Further, neither Parent introduced evidence that supported enjoining the Parents from coming within 200 yards of the other Parent’s place of employment. Additionally, while both Mother and Father pointed to evidence that could be construed to support enjoining the Parents from coming within 200 yards of the other Parent’s residence, the same evidence was also relevant to other issues raised by the pleadings. Thus, the issue was not tried by consent. Moreover, the injunctions did not relate directly to custody, control, possession, and visitation, but rather to keeping the Parents physically separated and restraining their conduct in ways that had no relation to the Child. Therefore, the more deferential best interest standard was inapplicable.

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DBA Family Law Section Case Law Update - Dallas Bar Association

1 D.B.A. Family Law Section Case Law Update January 1 – December 31, 2014 GEORGANNA L. SIMPSON, P.C. ATTORNEY AT LAW 1349 Empire Central Drive Woodv...

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