Opinions, March 7, 2017: Googling for Child Support Evidence

The Fourteenth Court of Appeals released a published opinion, Reagins v. Walker, No. 14-15-00764-CV, concerning the sufficiency of evidence to set child support, and a memorandum opinion in Parker v. Parker, No. 14-16-00098-CV, regarding DWOPs. Incidentally, the briefs of both appellants were filed pro se.

In Reagins v. Walker, the father appealed the trial court’s order modifying his child support because he alleged there was insufficient evidence presented to establish his net resources. Reagins did not show for his trial. The only witness called was Walker. No exhibits were offered into evidence. Walker testified that she had not been provided any documents regarding Reagins’ income such as paystubs or tax returns. She testified that she did online research and determined that Reagins was a petroleum engineer with at least one master’s degree. She further testified that she “investigated” what a petroleum engineer might make with his experience and “found a range of between $127,000 to $130,000.” She testified she believed he made a minimum of $127, 000/yr. She testified that Reagins’ two other children attend private school and what she stated was the tuition at that private school. She testified that Reagins had not provided her with information concerning his health insurance coverage. The trial court entered a child support order based off Walker’s testimony.

On appeal, the Court of Appeals agreed with Reagins that the trial court lacked sufficient evidence to calculate his net resources. “Walker’s generalized testimony based on internet searches was not sufficient to support the net resources calculation.” Even though Reagins did not appear for trial, Walker was still required to prove her case. The opinion appears to leave open the possibility that Walker’s internet research may have been sufficient, if it and her testimony had been more detailed or tailored to Reagins’ employment:

In that brief testimony, Walker admitted to having to resort to internet searches to get any information regarding Reagins’ employment. She did not, however, offer any specifics regarding the types of searches she conducted “on the Internet,” what search engines she may have used, or what websites she visited to obtain the information provided. She did not provide any specifics about Reagins’ employer, his position with the company, whether that work was on a full-time, part-time, or contract basis, or whether his job description was petroleum engineer.

The Court of Appeals, in fact, underlined this point:

The defect in this testimony is not the fact that it was based on internet research. The problem here is that Walker merely speculated regarding what Reagins might make based on general information she obtained on the internet.

The COA reversed and remanded on the child support issue. (Reagins’ second issue was that he had ineffective assistance of counsel, but that only applies in criminal cases and parental termination cases)

In Parker v. Parker, Eric Parker was incarcerated when he filed for divorce from his wife. He also filed a bench warrant requesting to be present for the divorce proceedings or, alternatively, to proceed by conference call. The trial court set the case for trial and provided notice of the date to Eric. The trial court issued an order denying the request of personal appearance but allowing him to appear by telephone. The trial court dismissed his case for want of prosecution on the trial date. The order of dismissal stated that the case was dismissed because there was no announcement by attorneys or parties and because there had been no service of process on the wife. Eric appealed the dismissal, arguing that appearance by telephone was insufficient and violated his due process rights because does not have independent access to a telephone. “Here, appellant got what he requested — the ability to participate telephonically — and there is no evidence in the record suggesting that he was in any way prevented from telephonically appearing for his trial.” The issue was overruled and the dismissal was affirmed.

Opinions, Feb. 24, 2017: RIP Chief Justice Jack Pope; Abduction & Temporary Emergency Jurisdiction Under TFC 152.204; & Interpretation of Divorce Decrees

First order of business: I was sad to hear that former Texas Supreme Court Chief Justice Jack Pope passed away last weekend at the age of 103. I had previously blogged on Chief Justice Pope and his influence in family law as he was the author of the touchstone enforcement case Ex parte Slavin. Incidentally, Slavin was issued 50 years ago today. I have often thought of resuming blogging about all cases that cite Slavin, but I have a hard time keeping up with the blog as it is sometimes.

Case in point, I have not blogged on the Texas Supreme Court’s guidepost decision on the “acceptance of benefits” doctrine that came out a month ago (Kramer v. Kastleman) because I wanted to review it a few times and think about it. Stay tuned for that one.

On to the recent First and Fourteenth cases. On February 24, 2017, the Fourteenth Court of Appeals released a published opinion in In re S.J., No. 14-17-00054-CV, a mandamus proceeding regarding temporary emergency jurisdiction under Tex. Fam. Code §152.204. Full disclosure: my firm and I represented the petitioner in this case and the estimable Donn Fullenweider, Grady Reiff, and Sallee Smyth represented the Real Party in Interest. I’m blogging about it because it is a published opinion and it weighs in on an issue that was arguably unclear after the First District’s opinion in In re Salminen regarding whether or not a risk of international abduction is sufficient grounds to trigger temporary emergency jurisdiction under section 152.204.  In In re Salminen (which my firm and I also handled), we argued to the trial court that a risk of international abduction was sufficient evidence of threat of abuse or mistreatment of a child to trigger temporary emergency jurisdiction under section 152.204. The trial court agreed, exercised TEJ, and issued temporary orders which granted our client temporary SMC. The mother filed a petition for writ of mandamus which the First District Court of Appeals granted, finding that the father had not established any of the grounds for TEJ under 152.204. The way I read the opinion in In re Salminen, the First District held that even if a trial court finds that a parent is an abduction risk, the statute requires a showing of mistreatment or abuse (or a threat of mistreatment or abuse) and that a risk of abduction does not meet the statutory language sufficient to trigger TEJ.

The Fourteenth Court of Appeals agreed, looking to section 261.001 of the Family Code which states that abuse includes “mental or emotional injury to a child that results in an observable and material impairment in the child’s growth, development, or psychological functioning” or “physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child.” Tex. Fam. Code § 261.001. At trial (which was the same trial court as in In re Salminen) the father and the father’s counsel conceded on the record that the mother was a good parent who had never been physically violent with the child. Given this admission, the only basis for TEJ was the purported threat of abduction but the Fourteenth joined the First, Fifth (Dallas), and Twelfth (Tyler) Courts of Appeal in holding that mother’s moving the child to Texas without the father’s knowledge consent “is not sufficient, by itself, to prove that it was ‘necessary in an emergency to protect the child because the child… is subjected to or threatened with mistreatment or abuse.'”

Also on February 24, 2017, the First District Court of Appeals released its memorandum opinion in Gallis v. Papadogiannis, No. 01-15-00794-CV, which clocks in at a whopping 54 pages.  Despite its mammoth length, the crux of the appeal is the interpretation of the parties’ agreed final decree. The Court of Appeals affirmed in part and reversed and rendered in part.

The parties divorced in 2011. Their agreed final decree divided the property, appointed them JMCs with the mother as primary and father having a SPO. Father was ordered to pay $1,500 in child support per month, plus monthly spousal support, the mother’s health insurance, the minor child’s health insurance, the minor child’s uninsured medical and the college expenses of the minor and adult children.

In 2013, the father filed a “Original Petition to Modify Suit Affecting the Parent-Child Relationship, Damage Suit for Parental Alienation and Interference with Possessory Interest in Child, and Suit for Breach of Contract” in the trial court. This appears to have kicked off a campaign of motion filing for the next couple of years. Seriously, the recitation of procedural history reads like the Catalogue of Ships from Book 2 of The Iliad.

The major issue on appeal concerned provisions for the mother’s purchase of a house. Under the decree, the mother had 18 or 24 months (there are conflicting provisions in the decree) to find and purchase a house costing less than $700,000; the father would pay the full purchase price but he would be awarded a 20% interest in the house. The father would also pay insurance, the water bill, and property taxes on the house until either the child aged out or the mother sold the house, whichever occurred first. If the house chosen by the mother costs less than $700,000, the father was to pay the difference between the purchase price and the $700,000 to the mother.

Also, the decree provided that if the mother found and purchased a house within the 24 months, the father’s monthly spousal support payments would decrease from $5,000/mo to $4,000/mo.

The father alleged that he had put up $681,000 of the $700,00 required under the decree but, after 26 months, the mother had not found or purchased a house.  At trial, the father requested the $681,000 be returned to him and that the mother be ordered to pay his attorney’s fees. The mother requested that she be awarded the money to purchase a house. She also stated she would still grant the father the 20% interest he was due under the decree.

The father testified that the mother’s attorney had drafted the decree but he had helped (though he was pro se when the decree was drafted). He testified that he understood the decree to say that the mother had 24 months to select a house to buy which would trigger his obligation to provide up to $700,000 for the purchase and he would receive a 20% interest in the house. He testified that the mother asked him for house money in July 2012 and he paid her $560,000 at that time though she did not select a house. He emptied his 401(k) and savings and that, within 24 months after the 2011 decree was signed, he had paid the mother 97% of the $700,00 (i.e. $681,000). He testified he regarded the 20% as a real estate investment which would accrue value. He testified he was damaged by the mother’s failure to purchase a house because it meant his monthly spousal support  obligation would not decrease.

The mother testified that she moved to New York on July 11, 2013, just shy of two years after the divorce. She testified that during the almost two years she lived in Houston after the divorce, she never indicated to the father that she had selected a house to purchase. She instead decided to wait until he had delivered the entire $700,000 and then purchase a house. She made two offers on houses in New York after the 24 months post-divorce period had passed, but they were not accepted. She took the deposits from those offers and put them into her attorney’s IOLTA account.

In interpreting the decree, the trial court ruled: (1) the father was not obligated to pay $700,000 for the purchase of a house because the mother did not purchase a house within 24 months of the decree, and (2) after the 24-month house-purchase window had closed, the father was only obligated to pay $4,000 per month in spousal support rather than $5,000 a month. The Court of Appeals affirmed the first ruling but disagreed with the second. Specifically, the trial court found that the mother breached the decree by failing to purchase a house within 18 or 24 months but the Court of Appeals found she was under no obligation to purchase a house because the decree included contingencies which contemplated the mother would have the choice of which action to take. Also, the trial court decided the father’s monthly spousal support obligation automatically decreased from $5,000 to $4,000 24 months after the decree was entered, but the Court of Appeals said there wasn’t any language in the decree to support that conclusion.

Thus, the Court of Appeals ruled the trial court was correct in concluding the father did not owe the mother the $700,000 because his obligation was never triggered but incorrect in reducing the monthly spousal support.

 

Opinions, Feb. 2, 2017: Bill of Review & Proving Post-Default Judgment Diligence

Happy Groundhog Day! Hope yours is better than Phil’s.

The Fourteenth Court of Appeals released its memorandum opinion in Grant v. Calligan, No. 14-15-01084-CV this morning, affirming the trial court’s denial of a bill of review.

Grant filed a divorce petition against Calligan in 2013. The trial court sent a scheduling order with a trial date (January 13, 2014) to Grant’s attorney. Grant’s attorney testified he never received this notice. Calligan showed at the trial, but Grant and his attorney did not. The trial court (the 246th) entered a default judgment which was signed January 31, 2014.

About ten months later, on December 2, 2014, Grant filed a bill of review. At trial, Grant’s attorney testified that he never received notice of trial. The Court of Appeals presumed this to be true in its analysis. Grant’s attorney also testified that when he received notice of the default judgment, he called up his appellate counsel. But, the Court of Appeals noted, the record did not contain any evidence of when that allegedly happened. That is, was it while the trial court still had plenary power or not?

Even though the Court of Appeals presumed Grant established that he did not receive notice of the trial date, he still had the burden of establishing that he diligently pursued “all available and adequate legal remedies against the default judgment.” Grant asserted he was not required to pursue any post-judgment remedies (such as a MNT) because he also did not receive notice of the default judgment until after the trial court’s plenary power expired. The record did not include any evidence which tended to show Grant’s attorney didn’t receive notice of the default judgment, either. At this point, I was thinking “How can you prove you didn’t receive something?” But the Court of Appeals pointed to the following exchange between the trial court and Grant’s attorney:

Trial Court: What did you do when you got the notice of the clerk that the default had been granted?

Grant’s Attorney: That’s when I contacted my client to see if he received any–anything in the mail or was served–personally served and he said no and then contacted [appellate counsel].

This testimony, the Court of Appeals stated, did not indicate when Grant’s attorney received notice of the default judgment, much less the date he contacted his client or appellate counsel. As such, the COA said, the record did not include evidence that he received notice of the default judgment after the trial court lost plenary power, meaning Grant failed to establish that he diligently pursued his available legal remedies. The COA affirmed the trial court’s denial of the Bill of Review.

This raises the question: If Grant’s attorney had testified that he received the notice of default judgment on March 3 (the day after the trial court lost plenary power), would that have been sufficient evidence to overrule the trial court’s denial of the BOR? If I had world enough and time, I’d research it myself to see if there’s any caselaw out there. However, the fact that the BOR petition wasn’t filed for ten months  after the default was entered certainly is a strike against Grant’s case.

Opinions, Jan. 25, 2017: Bill of Review

The First District Court of Appeals released its memorandum opinion in Chisti v. Wilwerding, No 01-16-00408-CV, affirming the trial court’s denial of a bill of review.

Samsher Chisti filed a bill of review requesting the trial court (the 257th in Harris County) set aside the divorce decree entered in his divorce from Kiran Wilwerding. Evidently representing himself at the hearing on the bill of review, Chisti alleged that the decree was fraudulently obtained because, according to him, Wilwerding committed bigamy without informing the trial court. The trial court denied the bill of review, Chisti appealed. The Court of Appeals held that Chisti proffered no evidence in trial court to support his allegations and affirmed the trial court.

 

 

Opinions, Jan. 19, 2017: Violent Kidnappers Don’t Get Possession & Access

Yesterday the First District Court of Appeals issued its memorandum opinion in Camero v. Camero, No. 01-15-00860-CV, affirming the trial court’s judgment.

Samantha and Fernando were  married in 2010 and had two children during the marriage. Samantha filed a pro se petition for divorce in March 2014 and then, with the help of a legal aid service, an amended petition. She also obtained a protective order against Fernando. The case was tried to the bench on July 29, 2015. Samantha was present and testified but Fernando did not attend because he was incarcerated, having been convicted of aggravated assault with a deadly weapon. Samantha alleged that she and Fernando had been separated in January 2014 when Fernando kidnapped her and the two children and held them against their will for over a month. He assaulted her daily and threatened to kill her and the children. She managed to escape and Fernando was arrested in February 2014 and later convicted. At trial she testified that Fernando had an extensive substance abuse problem and a history of family violence. At the conclusion of trial, the trial court appointed Samantha SMC and Fernando PC with no visitation.

Fernando filed a pro se appeal alleging two issues: 1) the trial court abused its discretion when it ordered that he not have access or visitation with his children; and 2) the trial court abused its discretion when it did not permit him as an inmate to proceed by affidavit, deposition, telephone or other means.

I’m not even going to address Fernando’s first issue. As to the second, the record shows that even though he had notice of the trial date, before trial Fernando failed to request to appear by alternative means.

The Court of Appeals overruled both issues and affirmed the trial court.

Opinions, Dec. 29, 2016: You Say Tomato, I Say Contractual Alimony

Happy new year from the Houston Family Law Appeals Blog!

The First District Court of Appeals released its memorandum opinion in Barger v. Barger, No. 01-15-00659-CV this morning which concerns the interpretation of multiple contractual alimony agreements.

Cari and Keith Barger divorced in 2007. At the time they had two minor children. Their agreed decree included provisions for Keith to pay contractual alimony. The contractual alimony provisions also provided for the termination of alimony if Cari remarried or cohabitated with somone “in a conjugal relationship.” In 2009, the parties renegotiated the contractual alimony and signed a Binding Informal Settlement Agreement which included a schedule by which Keith would pay Cari $815,000 over time. This amount would represent the total amount of child support, college payments for their children, and contractual alimony. On March 3, 2010, the trial court entered a reformed order which was based on the settlement agreement. The reformed order did not include a remarriage or cohabitation clause.

In April 2010, Cari remarried, though Keith claimed he learned of the remarriage a year later.

Keith made payments of $3,000 per month from May 2010 until May 2014. In July 2014, Cari filed an enforcement action against him. In March 2015, the trial court heard Cari’s enforcement, and, after comparing the original decree to the reformed order, found the contractual alimony provisions of the reformed order were ambiguous. The trial court then held an evidentiary hearing to determine what the parties’ intention was in omitting the marriage or cohabitation provision from the reformed order.

At issue is the marriage or cohabitation clause (which provided for the termination of the contractual alimony) which was in the original decree but was not in the reformed order. Keith argued that the provision was still valid because the reformed order stated “All other terms of the prior orders not specifically modified in this order shall remain in full force and effect” and the reformed order did not mention the marriage/cohabitation clause. Cari argued that the marriage or cohabitation clause was a terminating event in the original decree specifically modified by the reformed order.

The trial court found that the parties did not intend for the marriage or cohabitation clause to be of continued validity in the reformed order and clarified the reformed order. The reformed order had stated that its intent was to “restructure the contractual alimony provisions set forth in the Agreed Final Decree of Divorce dated October 19, 2007; which shall be reformed as set forth herein.” The trial court revised the reformed order to clarify that “these modifications shall reform and restructure all the provisions contained in the Agreed Final Decree of Divorce dated October 19, 2007, as relates to contractual alimony.” In other words, the marriage/cohabitation clause was no longer in effect because it was not in the reformed order.

Keith appealed, alleging three issues.

First, he argued the trial court erred by not issuing findings of fact and conclusions of law. The Court of Appeals held that the trial court did err by not issuing FF/CL, but the error was harmless because the lack of FF/CL did not prevent Keith from presenting his legal challenge alleging a lack of ambiguity in the reformed order or the propriety of the trial court’s clarification of that order.

In his second issue, Keith argued the trial court erred by concluding the reformed order was ambiguous. The test for ambiguity, the Court of Appeals noted, is whether there is more than one reasonable interpretation of the contract. The Court of Appeals observed that Cari’s interpretation of the reformed order was reasonable but pointedly did not reach whether or not Keith’s interpretation was reasonable because the result was the same either way: 1) If Keith’s interpretation was unreasonable, then the trial court did not err by applying the unambiguous reformed order in Cari’s favor. 2) If Keith’s interpretation was reasonable, then the trial court did not err in finding after an evidentiary hearing that the parties intended to remove the marriage or cohabitation clause.

In his third issue, Keith argued the trial court erred by substantively changing the parties’ agreement because, according to Keith, the parties agreed the reformed order would not supersede the marriage/cohabitation clause. The Court of Appeals held that because the trial court found that the parties intended to remove the marriage or cohabitation clause, it did not err in clarifying the order.

The trial court was affirmed.

Opinions, Dec. 13, 2016: Receivers, Forfeiture, and Enforceable Language

This morning the First District Court of Appeals released a published opinion in Perry v. Perry, No. 01-16-00156-CV which concerns appointing a receiver to sell the marital residence where the underlying decree lacked enforceable language to do so. I found the opinion somewhat confusing and wonder if I am missing something (always a likely bet).

William and Vickie were divorced in 2012. Their decree included two provisions about their house: one typed in the body of the decree and one handwritten by the parties. The typed portion read:

The Court ORDERS that the Husband is awarded (gets) the [House], and the Wife is divested of (doesn’t get) any interest, title or claim she may have to the [House].

Wife IS ORDERED to sign any deeds or documents needed to transfer [the House] to the Husband. Husband is responsible for preparing the documents.

The handwritten portion read:

William Perry agrees to grant Vickie Perry 50% of the profit of the [sale] of the currently community property of [the House.]

If you’re like me, your Slavin meter went off in your head.

Several years later William filed a pro se enforcement petition, alleging Vickie violated the decree by failing to sign a deed transferring her interest in the house to him. William requested the trial court order Vickie to transfer her interest in the house to him because her failure to convey her interest was preventing him from selling the house.

Vickie counterclaimed for a clarifying order, requesting the trial court determine the parties’ rights and duties under the order and clarify any ambiguity in the division of the house. Vickie alleged that William had told her that he was going to sell the house but was not going to give her one half of the profits.

Vickie also requested the trial court appoint a receiver to sell the house, alleging the house was at risk of being foreclosed, but did not present any evidence in support of this allegation. William did not file a response to the motion.

The trial court held two hearings. At the first, William, still pro se, told the court he opposed a receiver because the house was not in danger of being foreclosed. The trial court suggested the parties prepare an agreed order requiring the proceeds of the sale to be paid into an escrow account until the parties or the court could determine how they should be distributed. The record does not indicate William agreed to such an order.

At the second hearing, William, now represented by counsel, objected to the appointment of a receiver because appointing a receiver would improperly modify the decree because the decree did not order William to sell the house. The trial court stated that appointing a receiver would benefit both parties and recalled that at the first hearing William agreed to sell the house. The Court of Appeals emphasized that, in fact, there is no evidence of this in the record (but it should be pointed out that it was William who originally brought the enforcement suit requesting the trial court order Vickie to sign conveyance documents because her failure to do so was preventing him from selling the house; so while William may not have agreed on the record to sell the house at the hearings, his pleadings evidently expressed a desire to do so).

After the second hearing, the trial court signed an order appointing a receiver and ordering the receiver to “take charge and possession” of the house if William failed to sell it by a date certain. If he had failed do so, the order authorized the receiver to “manage, control, and dispose” of the house as he saw fit “in his sole discretion… upon terms and conditions determined by him.”

William appealed and, in three issues, argued the trial court abused its discretion by entering the receivership order because: 1) neither the receiver nor Vickie were required to post a bond; 2) the order improperly modified the decree’s division; and 3) a receivership to sell the house is not a remedy available under CPRC 64.001. However, William did not assert his first and third issues in the trial court so the Court of Appeals did not consider them.

On appeal, Vickie argued that William failed to preserve his second issue because he did not object to the appointment of a receiver in the trial court. The Court of Appeals found otherwise, pointing to William stating at both hearings that he objected to the appointment of the receiver because he said the house was not at risk for foreclosure.

Under CPRC 64.001, a trial court may appoint a receiver under six different circumstances, including cases “in which a receiver may be appointed under the rules of equity.” The Court of Appeals cited case law which says a receiver should not be appointed if another remedy exists.

William argued that the receivership order improperly modified the decree because the decree does not require or order him to sell the house; it merely provides that if, in his discretion, he sells the house, Vickie gets half the proceeds. Vickie responded by arguing that William’s agreement in the decree to give her half the proceeds “directly implies” that the house must be sold.

Applying contract law, the Court of Appeals found that the decree awards the house to William and divests Vickie of her interest in it, save the 50% proceeds of sale. “But the provisions do not specify by when or for how much the House must be sold.” Under the rules of contract construction, when construing an agreement to avoid forfeiture, the court may “imply terms that can reasonably be implied.” The outcome of the case turns on the Court of Appeal’s use of this concept. To my mind, there is a question as to whether there was any risk of forfeiture, as William and Vickie presented conflicting stories on whether or not the house was at risk for foreclosure. Indeed, the Court of Appeals specifically noted that Vickie did not present evidence in support of this allegation. Nonetheless, the Court of Appeals evidently concluded there was some risk of forfeiture, perhaps in an effort to preserve as much of the trial court’s order as possible.

Thus, if a divorce decree orders that property be sold, but fails to specify a price, “the law presumes that the parties . . . intended a reasonable price.” Seabourne v. Seabourne, 493 S.W.3d 222, 230 n.9 (Tex. App.—Texarkana 2016, no pet.). Likewise, if the decree fails to specify a time for performance, “the law implies a reasonable time . . . .” Noyes v. Noyes, No. 04–08–00627–CV, 2009 WL 2520972, at *4 (Tex. App.—San Antonio Aug. 12, 2009, no pet.) (mem. op.) (holding that divorce decree that did not specify date by which husband was required to sell house required husband to sell house “within a reasonable amount of time”).

Because the decree does not provide a date by when or for how much the house must be sold, “the law provides these two missing terms: The House must be sold at a reasonable time and for a reasonable price,” the Court of Appeals concluded. In other words, William is right that the decree does not specifically order him to sell the house, but the handwritten provision regarding the split of the proceeds contemplates a sale which is evidently enough to justify the court supplying missing material terms in the name of avoiding forfeiture.

Turning to the receivership order issued by the trial court, the Court of Appeals approved the appointment of the receiver, but did not approve the language which permitted the receiver to sell the house “in his sole discretion… upon terms and conditions determined by him…” Rather, the Court of Appeals held, it should have ordered the receiver to sell the house at a reasonable time for a reasonable price. As such, the Court of Appeals held the receivership order improperly modified the decree, sustained William’s second issue, and remanded.

As mentioned above, the Court of Appeals employed the “risk of forfeiture” contract interpretation maxim to read terms into the decree that were not there. The Court of Appeals also stated that Vickie failed to present evidence that indicated the house was at risk of foreclosure and William specifically disputed this. Thus under this opinion it would appear that a party requesting a receiver would not need to present evidence of a forfeiture to summon the court’s ability to supply material terms to sell the property.  This strikes me as a strange outcome.