Opinions, August 25, 2016: You Can’t Represent the Husband AND the Wife in Divorce

Today the Fourteenth Court of Appeals released one published opinion, In re L.T.H., Cause No. 14-15-00366-CV, and one memorandum opinion in a mandamus proceeding, In re Quintanilla, Cause No. 14-16-00473-CV.

First, the memorandum opinion because it is amusing. On November 8, 2015, Relator Jose Quintanilla retained attorney Michael G. Busby Jr. of Busby & Associates, P.C. to represent him in his divorce. Three days later, Jose’s wife Silva Garcia hired Busby. Busby eventually returned Silva’s retainer and declined to represent her because he already represented Jose.

Busby filed an original petition for divorce on behalf of Jose. Silva answered and filed a motion to disqualify Busby. The associate judge granted the motion, as did the presiding judge after a de novo hearing.  Busby filed a mandamus on June 14, 2016.

Evidence was presented at the disqualification hearing that Silva had met with a legal assistant in Busby’s office, filled out an “extensive” application, and provided documents regarding the marital estate. Busby never personally met Silva. Silva paid a $2,500 retainer and the legal assistant informed her the firm would start to work on the case in 2-3 days. Silva signed an employment agreement, but no attorney in Busby’s office signed it.

A few days later the firm discovered the conflict and informed Silva her retainer would be returned to her because of the conflict. Her documents were not returned to her and she was informed that her personal information had been destroyed. Silva testified that she had no way of knowing if her personal information had actually been destroyed. Busby asserted he did not have the documents she claims created a conflict.

Busby argued at the hearing that Silva had not retained his firm because no one in the firm signed the contract. The Court of Appeals held that the trial court had sufficient evidence to support a finding of an intention to create an attorney-client relationship (Silva paid the $2,500 retainer, she was told the case would start working on her case).

Busby also argued there was no genuine threat that Busby could divulge confidential information he may have obtained in his brief representation of Silva. In support of this, Busby submitted affidavits from attorneys, paralegals, and legal assistants at his firm, all testifying that they had no access to any of Silva’s confidential information. He also argued that Silva had not given him confidential information. The Court of Appeals held that there is a “conclusive presumption” that the existence of an attorney-client relationship establishes as a matter of law that confidences were imparted to the attorney. The trial court did not abuse its discretion in settling this fact issue (whether Silva gave Busby’s firm confidential information) in Silva’s favor. Silva met her burden to disqualify Busby from the case.

Busby also argued the trial court abused its discretion in not considering alternatives to disqualification such as questioning Silva about the alleged information she provided to the firm or inspecting the firm’s files. But an attorney’s former client is not required to disclose confidential communications with former counsel to show actual prejudice to support disqualification. Because Silva met her burden, the trial court did not have to consider alternatives to disqualification.

Finally, Busby made a laches argument, contending Silva waived her complaint by not moving to disqualify his firm for five months after discovering the conflict. But Silva testified that she didn’t know the divorce had been filed until March 2016 because of service issues and she filed her motion to disqualify on April 29. As this was only a four-week difference and still in the beginning stages of the case, the Court of Appeals overruled the issue.

The petition for writ of mandamus was denied.

The published opinion released by the Fourteenth, In re L.T.H., concerns ambiguities in a mediated settlement agreement in a modification case. The Court of Appeals held those ambiguities should have been submitted to the mediator/arbitrator per the MSA.

In June 2014, the father filed a petition to modify , seeking to expand his possession. The trial court signed temporary orders which expanded his possession rights.

The trial court referred the parties to mediation. On February 6, 2015, they signed an MSA which included possession provisions. The MSA also provided that the parties would submit drafting disputes, interpretation issues, and issues regarding the parties’ intent to binding arbitration with the mediator.

On February 27, in a hearing not attended by the mother, the trial court orally granted the relief agreed to in the MSA. Less than a month later, the trial court held another hearing to address a dispute concerning the language of the proposed order on the MSA drafted by the father’s attorney. The mother argued the proposed order was contrary to their agreement but the trial court disagreed. On March 20, 2015, the trial court signed an Agreed Order based on the MSA.

In her sole issue on appeal, the mother contended the trial court abused its discretion by granting judgment on an order inconsistent with the MSA. Specifically, she argued the trial court’s final order substantially differed from the MSA because it awarded the father additional time with the child that he did not have under the temporary orders and changed the pick-up and return times, to the father’s advantage.

The Court of Appeals detailed the dispute concerning interpretations, but the bottom line is that, under the MSA, these disputes concerning interpretation and intent were to be submitted to the mediator/arbitrator, not the trial court. As such, the trial court erred in resolving the dispute at all. The Court of Appeals ordered the trial court to reverse the relevant provisions of the agreed order and remanded the case for further proceedings.


Opinions, August 9, 2016: Think Your Spousal Support is Too High? Try $350,000 Per Month

The First District Court of Appeals released a published opinion in In re Fuentes, No. 01-16-00366-CV, a mandamus proceeding notable for setting aside an order for $350,000 monthly payments for post-judgment temporary spousal support and attorney’s fees. Also, the Fourteenth Court of Appeals released a memorandum opinion in In re Fajardo, No. 14-15-00653-CV.

Taking the First first, in In re Fuentes, Evangelina Lopez Guzman Zaragoza filed for divorce from Miguel Zaragoza Fuentes. Her petition for divorce listed several companies as co-respondents. She alleged these companies were Miguel’s alter egos and requested the trial court appoint a receiver to oversee them.

In a verified motion for continuance for a hearing on Evangelina’s request for appointment of a receiver, Miguel’s counsel claimed he (Miguel) had assets worth more than a billion dollars and had dozens of companies in many different countries.

Miguel did not participate in the eventual trial and the trial court entered a default judgment against him. The final decree was signed December 21, 2015, awarding Evangelina one-half of the marital estate and $537 million in fraud-on-the-community damages, including cash in the amount of $537,680,823, real and personal property, and all shares and all interest of any kind in any business entities worldwide that the trial court found to be Miguel’s alter egos.

Miguel moved for a new trial and, on January 20, 2016, several intervenor companies filed notices of appeal (the “Intervenors”). The trial court denied the MNT on March 4, 2016 and Miguel filed his notice of appeal on March 18, 2016. Ten days later, Evangelina moved for temporary orders pending appeal under Tex. Fam. Code §6.709, seeking spousal support and payment of her attorney’s fees during the appeal.

Miguel moved to dismiss the motion for post-judgment temporary orders, arguing the request was untimely as 6.709 says a request must be filed “[n]ot later than the 30th day after the date an appeal is perfected.” As the Intervenors perfected their appeal on January 20, 2016, Miguel argued the deadline for the request was February 20, 2016, because any notice of appeal–including that of the Intervenors’–was sufficient to trigger the 30-day clock. The trial court denied Miguel’s motion to dismiss and heard Evangelina’s request for temporary orders. The trial court ordered Miguel to pay Evangelina $300,000 in spousal support per month and $50,000 in attorney’s fees per month.

Miguel filed a petition for writ of mandamus, arguing the temporary orders are void because Evangelina’s request was untimely and, alternatively, the order for $350,000 in monthly payments was not supported by the evidence.

The Court of Appeals overruled Miguel’s first issue, finding that it was his perfection of appeal that was the trigger for the 30-day deadline under 6.709, not the Intervenors’. The Court of Appeals found persuasive Evangelina’s argument that she is not entitled to temporary support without a pending appeal of the divorce. None of the Intervenors could be or were ordered to pay spousal support to Evangelina. In other words, because the provisions of 6.709 are effective only against the ex-spouse, it is the perfection of appeal of the ex-spouse which starts the 30-day clock.

Having found that the temporary orders were timely, the Court of Appeals turned to the issue of whether the trial court abused its discretion in making the orders because they lacked evidentiary support.

In her FIS filed with the trial court, Evangelina claimed she was entitled to $600,000 per month in spousal support and $100,000 in legal fees. How on earth could one person not named Bill Gates or Warren Buffet have monthly expenses of $600,000? Well, it adds up:

$200,000 per month for travel; $120,000 for security guards and drivers; $50,000 for clothing; $20,000 for medical expenses; $6,000 for water; $6,000 for energy; $4,000 for telephone; $14,000 for groceries; $3,000 for flowers; $10,000 for payments on her Neiman Marcus credit card; and $50,000 for loan repayments.

But when testifying about these alleged expenses, Evangelina admitted she didn’t feel threatened enough to need security guards; she doesn’t personally pay for utilities or groceries; had no documentation to support the clothing or travel expenses; had no idea how much she owed on her Neiman Marcus credit card; and she does not owe loan repayments. She also testified that her adult children have deposited money into her bank account to pay these expenses.

I have found that if you read enough appellate opinions, you can often identify the exact tipping point when someone is about to get poured out, the fulcrum where the decision pivots to its conclusion. In this case, it is immediately after the above laundry list of evidentiary deficiencies where the opinion then states, “Temporary spousal support is intended to provide for the parties’ necessary expenses.” The Court of Appeals found Evangelina “did not provide any evidence” to the trial court to establish which expenses were actually incurred by her and were necessary for her maintenance.

Evangelina also argued that though the evidence of her actual expenses may have been skimpy, the trial court was entitled to rely on its familiarity with the parties, the scope of the marital estate and the parties’ needs. The Court of Appeals disagreed, finding the trial court’s supposed familiarity with the case “does not cure the lack of explanation or evidentiary support for awarding $300,000 per month in spousal support.” Similarly, the Court of Appeals also found the monthly award of $50,000 for attorney’s fees was not supported by the evidence.

In conclusion, the Court of Appeals ordered the trial court to vacate its temporary orders and conduct a hearing and enter new temporary orders.

Taking the Fourteenth next, In re Fajardo concerned a plea to the jurisdiction. Maria and Guillermo met in 2000 and had four children together (born in 2001, 2003, 2008 and 2013). Guillermo has a total of 11 children by seven different women.*

In July, 2013, Maria filed a petition for divorce and a SAPCR. A hearing on whether a common-law marriage existed was held in front of the Associate Judge. The AJ found there was a common-law marriage. That ruling was appealed and a de novo hearing was granted. At the de novo hearing, Guillermo’s counsel urged the court to grant a plea to the jurisdiction and motion to dismiss for lack of standing, arguing Maria lacked standing to bring the divorce suit because there was no common-law marriage. The presiding judge took judicial notice of the transcript from the AJ hearing, but refused to take judicial notice of the exhibits from that hearing.

At the de novo hearing, the facts were disputed. Maria testified she believed Guillermo agreed to marry her and they lived together from 2000 until December 2012. She testified Guillermo introduced her as his wife “many times” from 2000-2003. They had a joint bank account. In several tax returns, Maria is listed as Guillermo’s wife but the returns are signed only by the preparer and not Maria or Guillermo.

Guillermo admitted he filed tax returns with Maria but disputed that he ever agreed to marry her, never lived with her, and never told people she was his wife. He also produced evidence that he was ceremonially married to another woman on August 16, 2005.

Other witnesses testified for both Maria and Guillermo.

The presiding judge found Maria had failed to rebut the presumption of Tex. Fam. Code §2.401 regarding informal marriages, granted Guillermo’s plea to the jurisdiction, and dismissed the divorce portion of Maria’s suit for lack of jurisdiction and standing. The presiding judge did retain the SAPCR though and a final order in the SAPCR was signed on February 16, 2015.

The Court of Appeals’ analysis begins with the observation that Guillermo filed a plea to the jurisdiction arguing Maria did not prove the elements of informal marriage under section 2.401, but he did not provide any authority for the proposition that such a failure deprives the trial court of subject-matter jurisdiction. But even assuming that a plea to the jurisdiction is a proper vehicle to make that argument (as the parties evidently did) the Court of Appeals concluded the plea failed because Maria presented more than a scintilla of evidence of each element.

When a jurisdictional challenge implicates the merits of a case, the trial court may review the evidence to determine if a fact issue exists. If the evidence creates a question of fact, the trial court cannot grant the plea to the jurisdiction. The standard resembles that of the summary judgment standard, in that a dismissal for lack of jurisdiction on a contested factual issue is only appropriate if the issue is proven as a matter of law. In other words, when Guillermo filed a plea to the jurisdiction premised on lack of standing, his motion implicated a summary judgment standard.

On appeal, Maria presented four issues: 1) the trial court erred by granting the plea to the jurisdiction; 2) the trial court erred by finding no genuine issue of material fact of common-law marriage; 3) the trial court erred by finding Maria failed to overcome the presumption of section 2.401; and 4) the trial court erred by refusing to allow Maria to make an offer of proof. The Court of Appeals did not reach the fourth issue, but addressed the first three concurrently as it regarded them as intertwined.

Essentially, no evidence was presented which disproved a common-law marriage as a matter of law. Maria produced more than a scintilla of evidence as to each element of her claim of a common-law marriage. Maria produced enough evidence to have standing to bring her divorce petition. Because the common-law marriage was not disproven as a matter of law, the trial court erred by granting the plea to the jurisdiction.

Because the order granting the plea to the jurisdiction was vacated, the Court of Appeals remanded the divorce for a determination on the merits.


* Another thing about reading and summarizing appellate opinions: Sometimes in its factual recitation, the opinion will include a fact which seems either out of place or vaguely incongruous. Frequently, that fact later proves to be relevant and important to the outcome of the case. Other times (like here), it just appears to be added for factual ambience, as if to not-so-subtly say to the reader, sotto voce, “This is the type of person we’re dealing with.”



Opinions, July 28, 2016: Reimbursement & Owelty Liens

The First District Court of Appeals released its memorandum opinion in Cox v. Cox, No. 01-15-00063-CV, affirming the trial court’s division and decree.

Patricia and Cara married in 2010. During the marriage, they lived in a house purchased by Patrick before the marriage. Cara alleged at trial that during the marriage, about $255,000 of community funds was spent on the house mortgage. In 2013, Cara filed for divorce. During the divorce proceedings, Patrick had a number of lawyers and partially represented himself. Due to discovery issues, Patrick was limited in the evidence he could present at trial. He did not provide an inventory per local rules and as a result, the trial court sanctioned him by precluding him from introducing evidence controverting Cara’s testimony.

The only witnesses during the one-day bench trial were Cara, Patrick, and their attorneys on attorneys’ fees. In the decree, the trial court awarded Cara a judgment of $135,000 as reimbursement to be secured by an owelty lien on the house (which was confirmed as Patrick’s separate property).

On appeal Patrick asserted five issues, all challenging the division and all overruled.

In his first issue, Patrick challenged the trial court’s exclusion of his inventory. The Court of Appeals reviewed Harris County’s local rule which requires the exchange of what we call “ten day docs” to be exchanged ten days before trial: inventory, FIS, etc. Patrick argued that the inventory was attached to a motion for partial summary judgment and should not have been excluded. The Court of Appeals found the inventory was not sworn and did not comply with local rules and therefore the trial court did not err in excluding it.

In his second issue, Patrick alleged the trial court erred in its ruling on other pretrial motions because the trial court was, according to Patrick, biased against him. Unfortunately, he evidently did not preserve the errors and the issues were not adequately briefed.

In his third issue, Patrick also challenged the $135,000 reimbursement judgment, arguing the evidence was not sufficient to support it. The Court of Appeals found there was evidence in the record to support the finding that the community estate spent at least $270,000 on the house.

In his fourth issue, Patrick challenged the owelty lien, arguing it violated his rights under the Texas Constitution. This argument is somewhat undermined by the fact that the Texas Constitution specifically provides that an owelty lien resulting from a divorce division may be placed on a homestead.

Finally, in his fifth issue, Patrick argued the trial court erred by failing to award him a judgment and owelty of partition in Cara’s separate property, but he failed to provide any legal argument or citation to any authority supporting his argument and the issue was waived.


Opinions, June 24, 2016: Informal Child Support Payments

The Texas Supreme Court issued its ruling in Ochsner v. Ochsner, No. 14-0638, a 7-2 opinion with one concurrence and two dissents. At issue was the statutory interpretation of the child support enforcement statute, Tex. Fam. Code §157.263, which the court held permits a trial court presiding over an enforcement action to consider payments that do not comply with the underlying order when determining the arrearages (if any).

Victoria and Preston divorced in December 2001. The trial court entered a decree which ordered Preston to pay Victoria $240 twice a month and $563 directly to Enron’s Kid’s Center for the daughter’s preschool. If the daughter stopped attending EKC, Preston was to pay Victoria $400 twice a month through the Harris County Child Support Office, noting that failure to comply with the time, place, and manner of the payments may result in Preston not receiving credit for the payment.

The child stopped attending EKC and Preston made payments directly to various private schools rather than to Victoria through the registry. Preston paid almost $80,000 in total, more than $20,000 over the amount required under the order.

Almost a decade after the child stopped attending EKC, Victoria filed an enforcement action against Preston, arguing he was in arrears and seeking a money judgment for the balance, interest, fees and costs. The trial court found for Preston, finding he had discharged his child support obligation, in part because the order did not include decretal language requiring him to pay child support after the daughter stopped attending EKC.

The Fourteenth District Court of Appeals reversed, holding that the decree did order Preston to continue to make payments after the child left EKC. On remand, the trial court, presided over by the same judge who rendered the decree, again found Preston was not in arrears. A divided court of appeal reversed, holding the trial court impermissably enforced a private agreement to modify a child support order. The court of appeals also held that the trial court was barred from considering Preston’s direct tuition payments when confirming the amount of arrearages. Preston appealed.

The majority’s opinion focuses on the statutory language of section 157.263:

(a) If a motion for enforcement of child support requests a money judgment for arrearages, the court shall confirm the amount of arrearages and render one cumulative money judgment.
(b) A cumulative money judgment includes:
(1) unpaid child support not previously confirmed;
(2) the balance owed on previously confirmed arrearages or lump sum or retroactive support judgments;
(3) interest on the arrearages; and
(4) a statement that it is a cumulative judgment.

Regarding the statute as a whole, the majority found that “the structure of the enforcement statute confirms the view that a trial court may consider direct payments that discharge the obligee’s own obligation to provide the funds.” The manner of payment specified by the order does not hamstring the enforcement court in determining the amount of arrearages because, according to the majority, “the statute contemplates that the trial court has discretion to consider direct payments either to the other parent or to a third party in deciding whether an arrearage exists.”

The majority distinguished this case from cases where the parties privately agreed to reduce or abate child support payments outside the order (not the case here, as the amount paid was in excess of what was ordered). The opinion also distinguished Office of the Attorney General of Texas v. Scholer, which held that an obligor may not allege estoppel as an affirmative defense in a child support enforcement action.*

In other words, trial courts may consider indirect payments for the benefit of the child when they assess arrearages. In its conclusion, the opinion warned it should not be construed to mean tuition payments always qualify as child support or to encourage parents to make direct payments to bypass the disbursement unit. On the contrary, the majority stated that, under the right facts, the trial court might not abuse its discretion by refusing to consider such payments. The Supreme Court reversed the court of appeals and rendered judgment for Preston.

It will be interesting to see what effects this opinion has on the case law. The opinion states repeatedly that one of the things that distinguishes this from other cases is that the tuition payments were in excess of the court-ordered child support. But the practical effect of this may raise questions for a family law practitioner. For example, while tuition for private school education is clearly a benefit for the child, would payments made for other expenses count as credit against arrearages? If the parent deposited money into an UGMA in lieu of making child support payments, would that suffice? The holding indicates such questions will be in the trial court’s discretion.

Another important question: What will be considered an adequate substitute for a child support payment? In this case, it was tuition payments. But what else might pass muster? If a parent fails to pay child support, but transfers stock to the nonpaying parent, would that suffice?

Justice Guzman, former Houston family law judge, filed a concurrence (joined by Justice Lehrmann) which stated “[T]his case is not about excusing nonpayment or crediting an overpayment, both of which implicate a modification of the amount of child-support arrearages.” Rather, the case is about the trial court’s authority under section 157.162(c)(1) to count support payments not made through the registry. Additionally, Justice Guzman stressed that obligors who ignore the dictates of the order do so at their own peril but, as a practical matter, parents may agree to accept direct payments instead of registry-only payments.

Justice Johnson’s dissent (joined by Justice Boyd) focused on the language of the decree and Preston’s dereliction therefrom, but the majority opinion criticized Judge Johnson’s dissent for focusing too closely on the decree’s language to the exclusion of controlling statutory provisions.

Justice Boyd’s dissent (joined by Justice Johnson) expressed concern that ruling in favor of either party could produce an inequitable result. Preston testified that he and Victoria agreed he could pay the child’s private school tuition in lieu of support. Forcing him to pay a decade of back child support would be onerous and unfair. But Victoria claimed that was not the agreement; it was  Preston who wanted the child to attend private school and she agreed, provided he paid for it–but not that private school tuition was in lieu of child support. If Victoria’s version of the facts are true, she was denied years of child support. Regardless of which parent was correct, Justice Boyd cautioned the order must be followed as written or it would invite either trial courts to impermissibly modify the order or parents to overthrow the court order.


*Scholer also–inadvertently–stands for the proposition that the prettier brief is not always the winning brief.


Opinions, June 30, 2016: Striking Jury Demands

The First District Court of Appeals released its memorandum opinion in In re I.R.H. & Z.T.H., No. 01-15-00787-CV, holding that the trial court abused its discretion in striking a jury demand as punishment for discovery abuses.

Mother and Father filed competing motions to modify. Trial was set for August 11, 2015. On June 30, 2015, Mother’s attorney moved to withdraw and on July 10, 2015, the trial court signed an order finding Mother was properly noticed and allowing Mother’s attorney to withdraw.

At pre-trial the day before trial, Father’s counsel requested that Mother’s jury demand be struck because Mother had failed to comply with discovery and pre-trial document exchange. The trial court granted the request, striking Mother’s jury demand, though it had been made and the fee paid months before trial. Mother requested a continuance which was denied. The case went to bench trial.

On appeal, the mother asserted two issues: first, that the trial court erred by denying her motion for continuance when, according to her, she had no notice of her attorney’s withdrawal; and second, the trial court erred by striking the jury demand.

The Court of Appeals did not reach the first issue because it sustained the Mother’s second issue. The refusal to grant a timely requested jury trial is harmless error “only if the record shows that no material issues of fact exist and an instructed verdict would have been justified.” Because Mother’s pleading sought to have geographical restrictions placed on the children’s residence–a jury issue–there were material fact issues which precluded a directed verdict. The trial court’s judgment was reversed and remanded with instructions for the case to be placed on the jury docket.

Opinions, June 28, 2016: AJs & Final Orders

The First District Court of Appeals released a memorandum opinion today in Clark v. Clark, No. 01-15-00615-CV which is a combined appeal and petition for writ of mandamus. The opinion essentially doubles down on the Court’s opinion in April in Gerke v. Kantara requiring orders signed by an associate judge to also be signed by the presiding judge or to include a waiver of de novo review.

Raymond and Wendy were divorced in Fort Bend in November 2009. They were both named JMCs in the decree over the child, with Raymond as primary. The matter was transferred to Brazoria County after Raymond moved.

In 2013, Raymond moved to modify the parent-child relationship, seeking to terminate Wendy’s rights. Wendy countered, seeking SMC. A four-day trial was held in November 2014 before Associate Judge Bradshaw. On the record at the beginning of the trial the parties waived their rights to de novo review by the presiding judge, Judge Hufstetler. AJ Bradshaw announced his ruling on the record at the conclusion of trial and stated his ruling would “be in the form of a final order on modification since the parties have waived de novo.” On February 20, 2015, AJ Bradshaw signed an order appointing Wendy as JMC with primary. Raymond filed a MNT.

On May 6, 2015, AJ Bradshaw issued an “Associate Judge’s Report,” which was a letter sent to the parties and stated there was a clerical error in the order and instructed Wendy to submit “an order nunc pro tunc” by June 12, 2015.  Judge Bradshaw also recommended denial of Raymond’s MNT. The record does not show Judge Hufstetler took any action on the AJ’s report and no “order nunc pro tunc” was in the appellate record.

On May 18, 2015 Raymond filed his first petition for writ of mandamus, asking the Court of Appeals order the judge to vacate the final order and order a new trial. But because the Court of Appeals lacks mandamus jurisdiction over an AJ’s actions, the mandamus was dismissed for lack of jurisdiction.

On July 13, 2015 Raymond sent a letter to the presiding Judge Hufstetler, asking him to take some action on the order. The next day, he filed a notice of appeal. Then, on August 27, 2015, he filed the mandamus under consideration, contending Judge Hufstetler abused his discretion by failing to take any action as to the order signed by the AJ. Wendy responded, arguing the order is a final, appealable order because, according to her, the parties executed a waiver of their right of appeal.

In April, the First District Court of Appeals faced similar issues and ruled in Gerke v. Kantara, No. 01-14-00082-CV, 2016 WL 1590847 (Tex.App.–Houston [1st Dist.] Apr. 19, 2015, no pet. h.) that an order signed only by an associate judge was not a final appealable order. This has caused a controversy in the Houston-area family law bar because it appears to mean that any order–past and future–would need to either be signed by the presiding judge or would possibly need to include a written waiver of de novo review to be a final and appealable order. With this one opinion, the Court of Appeals cast a doubt as to the finality of hundreds if not thousands of orders and cases that the parties believed to be final and closed.*

Relying upon and citing Gerke, the Court of Appeals found that because the order at issue in this case is signed only by AJ without any action by the presiding judge, there is no final, appealable order and the Court of Appeals lacks jurisdiction over the appeal and the appeal is dismissed.

The Court of Appeals next turned to the petition for writ of mandamus in which Raymond alleged the presiding judge abused his discretion by refusing to take any action to the order after Raymond brought it to the trial court’s attention.

The Court of Appeals found that, based on the statutory scheme creating the rights and duties of associate judges, “Judge Hufstetler has a non-ministerial duty to take some action on Associate Judge Bradshaw’s order” and that ten months was an unreasonable amount of time for Raymond to wait for Judge Hustetler to take action. Further, by taking no action, Judge Hufstetler “has effectively deprived Raymond of an appellate remedy” because there is no final, appealable order for Raymond to appeal and he cannot file a writ of mandamus as to the AJ’s actions. As such, the Court of Appeals conditionally granted the petition for writ of mandamus.

This ruling would appear to indicate that not only must an order be signed by the presiding judge or possibly include a waiver of de novo reviewto be final and appealable, per Gerke v. Kantara, but a presiding judge may be mandamused for failing to act on the order within a reasonable time.

In other words, the Court of Appeals is extending its Gerke v. Kantara holding by holding it is an abuse of discretion for a presiding judge to not take action on an AJ’s order when the order has been brought to the attention of the presiding judge. These are interesting developments, to say the least. Will this lead to an onslaught of mandamus petitions filed by disgruntled litigants whose presiding judge has not taken action on their AJ’s order? Perhaps the First District felt its docket was a little too light?


*I did not blog about the case at the time because my firm and specifically my colleague Ashley Tomlinson represent one of the parties in that matter.

Opinions, June 23, 2016: Termination, MSAs, & Statutory Interpretation

The Fourteenth Court of Appeals released its published opinion in In re Barre Morris, No. 14-16-00227-CV this morning, denying a writ of mandamus and addressing the question of whether In re Lee applies to termination suits.

In 2004, the trial court named Relator and the child’s mother JMCs. In 2014, the child’s mother signed an affidavit called “Mother’s Affidavit of Voluntary Relinquishment of Parental Rights” in which she stated termination of her parent-child relationship was in the child’s best interest but apparently provided no facts that supported that conclusion and also failed to affirmatively state that she waived and relinquished her parental rights.

In January 2015, Relator filed an “Original Petition to Terminate Parent-Child Relationship,” seeking an order terminating the mother’s parent-child relationship. The only ground alleged was the affidavit, which was attached as an exhibit to the petition. In April 2015, the parents attended mediation and signed an MSA which stated “the terms of settlement are to enter the order of termination as attached as Exhibit A.” The proposed order stated that the parent-child relationship was terminated. In neither the MSA nor the proposed order did the mother agree that termination was in the best interest of the child.

Relator filed the MSA with the court and attended a hearing to prove it up and ask the court to render judgment on the MSA. The only evidence offered at the hearing were the Relator’s name, the child’s name, the mother’s name, the execution of the MSA by the parents and Relator’s request that the trial court enforce the MSA. Relator did not offer testimony that termination of the mother’s parent-child relationship would be in the child’s best interest. The trial court took the matter under advisement and eventually signed an order denying rendition of judgment on the MSA on the grounds that the MSA did not comply with the statutory requirements for termination. Relator filed a petition for writ of mandamus.

The Court of Appeals found the trial court did not abuse its discretion in finding the MSA did not comply with Chapter 161 of the Texas Family Code. Section 161.001 provides that the trial court may order termination of the parent-child relationship if it finds, by clear and convincing evidence 1) the parent has executed an irrevocable affidavit of relinquishment of parental rights; and 2) termination is in the best interest of the child.

The Fourteenth Court of Appeals has recognized that an affidavit of relinquishment suffices as evidence on which the trial court may make a finding that termination is in the best interest of the child, but it has not held that an affidavit of relinquishment requires the trial court to find that termination is in the BIC.

The only evidence offered by Relator was the MSA and the affidavit, but the affidavit included no facts to support the conclusion that termination was in the BIC. There was no testimony by Relator that termination was in the BIC. The trial court could have reasonably concluded Relator had not met his burden under the statute.

The Court of Appeals went on to address whether Tex. Fam. Code §153.0071(e), which normally requires the trial court to enter judgment on a statutorily-compliant MSA, applies to suits to terminate a parent-child relationship under Chapter 161. In other words, does In re Lee have any bearing on this matter?  The Court found that §161.001 requires the trial court to make a determination by clear and convincing evidence that the termination would be in the best interest of the child and, as such, it requires the trial court to make a determination independent of the agreement of the parties. For this reason, the Court said, §161.001 conflicts with §153.0071(e), the latter of which does not state that it applies to all suits affecting the parent-child relationship.

The Court of Appeals also noted other fundamental differences between Chapter 153 modification and Chapter 161 termination, including the fact that the termination of parental rights impacts not just the interests of the parent but also the fundamental liberty interests of the child, as a child is typically not a party to a modification MSA but, in a termination proceeding, is frequently represented by counsel. Further, a termination of parental rights is final, unlike a modification, which can be yet further modified. The petition for writ of mandamus was denied.