Supervised Visitation & Judgment Nunc Pro Tunc: Opinions, Sept. 12, 2017

The Fourteenth Court of Appeals released a published opinion and a memorandum opinion this morning. The published opinion is on supervised visitation and the memorandum opinion is yet another installment in the Reynolds Saga, which I previously blogged about here and here and here.

In In re A.G. & A.F.G., No. 14-16-00341-CV, a father challenged the trial court’s modification order which required the father’s visitation be supervised and the denial of his motion for enforcement against the mother.

Mother and father were divorced in Austin County in 2006. Under the decree, mother had primary custody of their two children and father had an SPO. In 2014, the father filed a modification seeking primary custody of the son who had not yet aged out. After a hearing, the trial court entered TO awarding primary custody to the father. The case was then transferred to Harris County. In March 2015, the parties entered into a Rule 11 agreement under which the child returned to live with the mother as primary and father had a SPO. But in his first amended petition, the father reiterated his request for primary. In her second amended petition, the mother requested the father be denied access to the children or, alternatively, supervised because he posed a danger to the children’s physical and emotional well-being. In November 2015, the father filed a motion for contempt, alleging the mother had been preventing his visitation with the children under the Rule 11 agreement.

The case was tried in March 2016. A licensed professional counselor testified she had made a written report to CPS regarding allegations of the father beating the children. The father denied having struck the children. The mother testified to having observed bruises on the child when he returned from visitation with the father and that the children had told her that the father beat them. The children conferred with the judge in chambers. At the end of trial, the judge ruled the father’s visitation needed to be supervised and denied the father’s enforcement.

The COA noted that the record indicated findings of fact were not requested or entered and therefore the court must infer that the trial court made all findings necessary to support its judgment (reading between the lines: no dice for appellant). Because there was some evidence of the father posing a physical danger to the children which was legally and factually sufficient, the ruling was affirmed.

In his second issue, the father alleged the trial court abused its discretion by denying his motion for enforcement and granting the mother’s motion for judgment which evidently objected to the father’s motion for enforcement as not complying with the statutory requirements of an enforcement motion. At trial and before signing the judgment, the trial court had questioned whether the father’s motion met the requirements of TFC 157.002. The COA found the motion was deficient in several ways (it did not identify the provisions of the decree allegedly violated, or state the times and locations in which the order was violated). The father also filed a supplemental motion which also failed to provide the date, place, time, or manner of noncompliance for each alleged violation. The father argued that the mother waived these objections by not filing special exceptions, but the COA noted that these deficiencies were “the very subject of” the mother’s motion for judgment.

Both of father’s issues were overruled and the trial court was affirmed.

In In re Reynolds, No. 14-17-00614-CV, the COA partially granted and partially denied a petition for writ of mandamus.

The parties, Wilma and David Reynolds, were divorced in July 2008. A final decree was signed in May 2009. Wilma appealed the property division and the COA affirmed it because Wilma had waived her right to appeal by accepting the benefits of that judgment. More than eight years after the decree was signed, she filed a motion for judgment nunc pro tunc in July 2017 asking the trial court to modify certain provisions of the decree based on alleged clerical errors which, she argued, did not conform to the trial court’s pronouncement of judgment at trial. David responded, asking the trial court to deny the motion and to impose sanctions on Wilma and her attorney for prosecuting an allegedly frivolous case. After a hearing, the trial court denied Wilma’s motion and granted David’s motion, ordering Wilma’s attorney to pay a penalty and attorney’s fees in the amount of $40,000.

The COA observed that the law states that proof of a difference between the judgment rendered and the judgment entered is not enough to require correction by JNPT; there must also be a fact finding, support by evidence of the trial judge’s personal recollection, that the variance resulted from clerical error.

Wilma asserts the oral division of property differed from the written judgment as to four different categories of property. After examining each category, the oral pronouncement, the findings of fact and conclusions of law and the written decree, the COA disagreed on each and affirmed the trial court.

Turning to the sanctions order, the opinion paused to examine the parties and the procedural posture. Specifically, the sanctions order is predicated on conduct of Wilma and her attorney and, though not crystal clear, it appears to impose sanctions on both Wilma and her attorney. But Wilma was the only named relator in the mandamus petition and Wilma only has standing to challenge the sanctions awarded against her. That is, because her attorney did not seek appellate review in his own capacity, the COA can only address the sanctions order as it relates to Wilma.

Nonetheless, a trial court cannot enter a sanctions order after its plenary jurisdiction has expired and the trial court’s plenary jurisdiction had long since expired in this case and thus the sanctions order was void.

Will this be the end of the Reynolds Saga? Time will tell.

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2 Weddings, 2 Divorces, & a Bill of Review: Opinions, Sept. 7, 2017

Not surprisingly, there appears to have been a backlog caused by Harvey, with both the First and Fourteenth COA issuing a dozen or more opinions each today.

The First released one family law memorandum opinion in Grant v. Grant, No. 01-16-00581-CV, regarding bills of review. That sounds boring but the story is not. Howard and Ariann were married and divorced twice. They were first married in 1994. Ariann filed for divorce in 2010. While the divorce was pending, the parties continued living in the same marital residence. Also while the divorce was pending, Howard was convicted of health-care fraud and sentenced to three years in prison. They tried to set trial for before he shipped off to Club Fed. About a week before trial, Ariann’s lawyer came to the house to depose Howard because he had an ankle monitor on and generally was not allowed to leave the premises. The notice of trial was sent to Howard who was pro se at the time. The COS stated it was sent to him by CM/RRR and U.S. regular mail. Ariann appeared for trial, but Howard did not. The trial court awarded her property he now contends was his separate property.

A year after the divorce, and while Howard was still incarcerated, they remarried. While Howard was in hoosegow, Ariann sold some of the property awarded to her in the first divorce (which Howard now says was his separate property). In late 2015, they divorced for the second time. After the decree for the second divorce was entered, Howard filed a bill of review attacking the decree from the first divorce.

At the hearing on the bill of review, Ariann testified Howard had actual notice of the upcoming first trial date and that he could have gotten permission to leave the house to appear in court. Howard alleged that they were sleeping in the same bed, Ariann did not inform him of the trial date and that she misled him to believe she had decided not to pursue the divorce. The trial court denied the bill of review and Howard appealed.

The COA noted that the bill of review was filed more than four years after the first decree was entered and that it would thus be time-barred unless Howard established extrinsic fraud. Howard alleged she committed fraud in two ways: 1) misleading him by waking up, kissing him on the cheek, and going to court to obtain a default judgment when she knew she never told him the case was set for trial; and 2) by providing the court with the address of the marital residence instead of prison in Beaumont because she knew he “was not going to be at the marital residence.”

Taking the second first, the COA found that to show extrinsic fraud, Howard would have to show that Ariann knowingly but falsely certified to the court his last known address after he was incarcerated but before judgment was rendered. “Howard did not make this argument or show that this is what happened.” The issue was overruled.

Secondly, the COA noted he presented no evidence of Ariann’s supposed misleading and thus failed to establish extrinsic fraud.

Because the bill of review was time-barred (because Howard did not establish extrinsic fraud), the COA did not reach the merits of the bill of review issue.

The Fourteenth COA released two memorandum opinions, In re D.A., No. 14-16-00491-CV, and In re C.A.W. and C.H.W., No. 14-16-00768-CV, both affirming the trial courts.

In In re D.A., the father challenged the award of attorney’s fees in a modification order after bench trial. But the record on appeal did not contain a complete reporter’s record and the COA must presume the omitted evidence supported the order.

In In re C.A.W. and C.H.W., the father appealed the trial court’s order granting a child support modification in favor of the mother. Mother and father were divorced in 2013 after signing an MSA. They were named JMCs and father was ordered to pay $1,875/mo in child support, with a step down to $1,562.50 when the oldest turned 18.

C.A.W. aged out and mother filed a modification seeking above-guideline support for C.H.W. At bench trial in August 2016, the following facts were adduced:

C.H.W. resided with Mother. Father stopped fully exercising
his periods of possession of C.H.W. Mother’s net monthly income is $2,116.29 and
Father’s net monthly income is $23,200. C.H.W.’s needs were itemized in Exhibit
6, which is entitled “Child[]’s Needs List” (the “List”). The List also itemized the
anticipated monthly expenses for C.H.W.’s needs while residing with Mother. The
List reflected that C.H.W.’s needs totaled $5,291.65 per month. Mother did not have
the ability to meet C.H.W.’s monthly needs exceeding $1,700.

At the conclusion of trial, the trial court announced its finding that increasing child support was in the child’s best interest. On August 30, 2016, the trial signed an order for father to pay $3,500/mo in child support.

In his first issue on appeal, father argues the trial court abused its discretion in ordering above-guideline support because there was “no evidence of proven needs.” Specifically, the father argued that the mother had “merely shown in the trial court what her monthly expenses may be at this time” and failed to establish “that these expenses exist because of some need for the child.” The COA disagreed and found that the list of child’s needs clearly segregated the child’s expenses from the mother’s and that there was more than a scintilla of evidence establishing the child’s needs. The issue was overruled.

In his second issue, the father argued the trial court abused its discretion in ordering a modification where there was “no evidence of a material and substantial change.” To prevail in a modification suit, the petitioner must establish either that there was a material and substantial change or that more than three years have elapsed since the decree was entered and the monthly child support obligation differs from the amount that would be awarded under the statutory child-support guidelines by 20% or $100. Because this case met the latter, the issue was overruled.

 

Slavin Marches On: Opinions, Aug. 22, 2017

Both the First and Fourteenth Courts of Appeal released memorandum opinions today, the First’s in a habeas corpus proceeding and the Fourteenth’s in a hotly contested custody suit.

The First’s habeas corpus opinion presents a textbook case of how ambiguous language in a decree should prevent a contempt finding. In In re Campbell, No. 01-17-00251-CV, the relator challenged the trial court’s orders finding her in contempt, awarding attorney’s fees to her ex-husband’s counsel, and imposing community supervision. Ex-husband Randall Gibson moved to enforce possession and access provisions of the parties’ final decree. The trial court found three violations of the decree and confined Campbell. After six days in confinement, she moved to be released and the trial court granted the release but suspended the balance of her confinement, placing her under community supervision for two years. Her conditions of suspension required Campbell to, inter alia, report to a community supervision officer on a monthly basis, permit the officer to visit her home and work place, and pay a $25/mo community supervision fee. Campbell later moved for reconsideration of the contempt judgment, which the trial court denied. Campbell filed this writ of mandamus, which the COA construed as a habeas corpus, requesting the COA order the trial court to vacate its contempt order as void.

Campbell challenged the contempt order on two grounds: 1) some portions of the final decree are too vague or ambiguous to be enforced by contempt; and 2) the evidence adduced at trial failed to support one or more of the essential elements to support a finding of contempt.

Campbell argued the trial court erred by excluding the testimony of a witness (a woman named Jennifer Yeggoni), but the COA observed errors in the admission of evidence generally are not reviewable by a petition for writ of habeas corpus (the exception to the rule is where a trial court excluded evidence so significant it prevented the relator from presenting a defense). But apparently Campbell didn’t try to call her witness until after the judgment, when it was too late. It appears from the opinion this is the extent of the evidence issues.

Campbell was more successful with her challenges to the contempt violations. First, the trial court found her in contempt on the following basis:

On Thursday, October 20, 2016, during the regular school year,
[Campbell] picked up the children from school during [Gibson’s]
period of possession.

The decree provided that the ex-husband has the right to possess the children after they are dismissed from school each Wednesday until school resumes on Friday; when the children are dismissed from school on Wednesday afternoons, Campbell must surrender them to Gibson at their respective schools. Gibson may designate a third party to pick up the children in his place. The decree provides that either Gibson or his designee must be present when the children are picked up from the school. The decree is silent as to what should happen if neither Gibson nor his designee are present.

Gibson testified that he was unable to pick up two of his children on Thursday, October 20, 2016 because he was on an overnight field trip with the third child. He designated a third party (Yeggoni) to pick up and care for the children that day. Instead, Campbell picked them up from school, had them for a bit, and later dropped them off at Yeggoni’s house, where the children stayed overnight. Campbell admitted at trial that she picked the children up from school that Thursday and explained that Yeggoni was not there. Gibson conceded he did not know whether or not Yeggoni was at the school to pick up the children.

The COA found that the evidence conclusively established that neither Gibson nor his designee was there to pick up the children. Campbell, the COA observed, testified she was present and did not know if Yeggoni was. “While the trial court sitting as factfinder generally may disbelieve a witness’s testimony in whole or part, it cannot simply disregard the uncontradicted testimony of an interested witness that is, clear, positive, and direct, otherwise credible, free from contradictions and inconsistencies, and readily could have been controverted.” Campbell’s testimony about Yeggoni’s absence, the COA held, met this standard and Gibson could have controverted this evidence if it were untrue by, for example, calling Yeggoni as a witness.

The decree required Gibson to arrange for a third party to pick up the children in his absence, which he evidently did not do, and the decree was silent as to what would happen in such cases. As such, the decree was ambiguous on this point and could not support a finding of contempt. The COA sustained Cambpell’s challenge to this violation.

For the second violation, the trial court found Campbell willfully disobeyed the decree as follows:

On Tuesday, November 22, 2016 between the hours of 6:00 p.m. and
8:00 p.m. [Gibson], who was not in possession of the children,
attempted to Skype to [the] children. [Campbell], the party receiving
the call, did not return the call by ordinary telephone methods (cellular
or land-line telephone). [Campbell] took [] purposeful actions to be
away from a computer or phone with Skype or Facetime capabilities to
thwart the spirit and intention of making it possible for [Gibson] to have
a Skype/Facetime call with the children once per week.

Campbell argued the decree did not require her to place a return call if Gibson was unsuccessful in contacting the children via Skype. She also argued there was no evidence she purposefully avoided her telephone and computer to stymie Gibson’s contact with the children. The decree permitted Gibson to place a Skype call or, if the children are not near a Skype-supporting device, by telephone. The decree also instructed Campbell could not take purposeful actions to be away from computers or phones during the call “to thwart the spirit and intention of making it possible” for Gibson to have communication. If the call is missed altogether and Gibson leaves a message, Campbell “shall assist and encourage the children in returning the call in a timely manner.”

Gibson testified that he tried to call the children by Skype on Tuesday November 22, 2016 between 6 and 8 pm, was unable to reach them, and left a voicemail. Just before 10 pm, he sent a text message to Campbell complaining of not being able to communicate with them but she did not respond, nor did it appear from the text-messaging program that she read the text. The next day, he was able to speak to the children. Campbell agreed she did not call Gibson back on Tuesday but testified that she generally tries to have the children return Gibson’s calls in a timely fashion.

None of the evidence, the COA found, supported the contempt finding. The decree contemplated there would be times when Gibson and the children did not connect and Campbell’s obligation in such circumstances was to “assist and encourage the children in returning the call in a timely manner.” In other words, she had no obligation to call Gibson back at all, or to do so necessarily the same day. The COA also agreed with Campbell that there was no evidence as to why they missed Gibson’s call that night. Counsel did not ask Campbell any questions about the circumstances of the missed call. Nor did the record support an inference Campbell purposefully thwarted Gibson’s call. The COA sustained Campbell’s objection.

Regarding the third violation, the trial court found Campbell in contempt for willfully violating the decree as follows:

On Saturday, November 26, 2016 between the hours of 2:00 p.m. and
8:00 p.m. [Gibson], who was not in possession of the children, called
the children. [Campbell] failed to assist and encourage the children in
returning the call in a timely manner.

The decree states that Gibson may call the children each Saturday between 2 and 8 pm when they are in Campbell’s possession. If the children miss his call and he leaves a message, Campbell “shall assist and encourage the children in returning the call in a timely manner.”

Gibson testified he tried to call the children three times between 2 and 8 on November 26, 2016 unsuccessfully. He left Campbell a voicemail and sent her a text message asking her to have the children call him back. The text message program indicated Campbell did not read the text. Campbell testified the children were staying with her parents that weekend. She conceded she did not assist the children to return Gibson’s call while they were with their grandparents but once they returned, they called Gibson back on Sunday.

“Timely,” the COA noted, is an inherently ambiguous term which was undefined by the decree. Because of the inherent flexibility of the term, the decree did not unambiguously inform Campbell of her obligations and thus could not serve as the basis for contempt. I suppose one could argue that “timely,” as it’s used in the decree here with regards to the Skype and telephone calls, suggested that the return call should be in the window of time provided in the decree, but the decree did not specifically say so and reasonable, alternative interpretations (as urged by Campbell here) are the death of contempt claims.

Because the decree did not support the three violations, the COA granted the writ of habeas corpus and declared the contempt order void.

In In re M.S.G., No. 14-16-00236-CV, the mother of the child argued the trial court erred in appointing the biological father as primary JMC and failing to order the father to pay retroactive child support.

The child was born in May, 2014. The parents were not married. Father filed a petition to establish paternity in December and to appoint him primary SMC. Mother counterclaimed, requesting the court appoint them both JMC with her as primary. Both parties amended their petitions repeatedly.

A bench trial was held in December 2015 at which father testified that he was concerned about mother’s excessive drinking and that her drinking caused him to move out from the apartment they shared. Mother admitted that she made a “blatantly false report” to the police accusing father of assault. She was arrested and later pleaded guilty to filing a false report. Father admitted he called CPS (on the advice of counsel) when the mother texted him that “there is no food here” and that the child was hungry and screaming. He also called the police to conduct welfare checks because he received text messages from the mother that she was having a hard time and she couldn’t do it and didn’t want to be a mother.

In January 2015, they reconciled and moved back in together until June 2015. He testified that after he moved out, he helped mother out financially. He also testified that in July 2015 he moved in with another woman who has a child and that child and his child get along well and have bonded.

Mother testified that it was Father who was drinking excessively and had anger issues. She also testified that she has been the child’s primary caretaker and since birth and that the father had not been very involved with the child. She denied father provided the financial assistance besides paying for day care and medical insurance. Mother testified that she had been legally married to a registered sex offender for ten years but that she had left him two months into that marriage and had not seen him in many years. She testified that divorce was finalized in July 2015, but produced no decree or evidence to establish that.

Mother testified that father had attempted suicide in the past, which father denied. Mother also made a number of serious allegations about father’s sexual history, including molestation when he was a child. Mother called father’s sister as a witness and she corroborated a lot of mother’s claims, including multiple suicide attempts, that father should not be the primary custodial parent because he has anger issues and is mentally unstable, and that she witnessed father sexually molesting their stepsister. Mother also called an ex-girlfriend of father’s who also did not have anything nice to say about him either.

The child’s paternal grandfather testified in favor of the father, denying claims about father’s mental instability, molestation claims, or that he spent much of his childhood in foster care. The father of father’s current girlfriend and the current girlfriend also testified in his favor.

At the conclusion of evidence, the trial court appointed the parents as JMCs with father as primary. Mother filed a motion for new trial which was denied.

Mother’s two issues on appeal are that the trial court abused its discretion by 1) appointing father primary JMC; and 2) failing to order father to pay retroactive child support.

As to the first issue, the COA noted that custody disputes are inherently fact-intensive and that the trial court is best able to observe and assess the witnesses’ demeanor and credibility. The COA defers to the trial court’s resolution of underlying facts and credibility determinations. For example, the trial court found that the mother’s allegations of father having an unstable mental history “were not supported by credible evidence.” The trial court also found that mother’s allegations of father having a history of inappropriate sexual conduct with a female while both were minors were also not supported by credible evidence.  To make a long story short, the COA marshaled the evidence which supported the trial court’s determinations and deferred to the trial court’s conclusions on these disputed issues and the credibility of the witnesses. The issue was overruled.

Regarding the second issue, retroactive child support is reviewed for an abuse of discretion. The COA found there was evidence in the record which supported the trial court’s conclusion the father should not be ordered to pay child support. The issue was overruled.

 

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Name Changes & Alleged Bigamy: Opinions, August 10, 2017

The Fourteenth Court of Appeals released two interesting published opinions yesterday, one on changing a child’s name and the other on invalidating a marriage due to an undissolved previous marriage.

In In re J.N.L., No. 14-16-00325-CV, the father of the child at issue appealed the trial court’s judgment granting petitioner’s request to change the name of the nine-year-old child. The mother and father had been married at one point, but they had divorced; the mother had remarried and filed a petition to change the child’s last name to the step-father’s last name. At the time of trial, father was incarcerated after being convicted of aggravated robbery and is not expected to be released until 2024. He is also a registered sex offender. He testified at trial via videoconference.

On appeal, the father asserted two issues: that the trial court lacked sufficient evidence to grant the request and that it abused its discretion in excluding some evidence.

The COA considered the evidence in support of the factors to be considered in a name change case:

(1) whether the name change would reduce anxiety, embarrassment, inconvenience, confusion, or disruption for the child, which may include parental misconduct and the degree of community respect (or disrespect) associated with the name; (2) whether the name change would help the child identify with a family unit; (3) whether the parent bearing the name the child will have assures that she will not change her name in the future; (4) the length of time the child has used a name and the level of identity the child has with the name; (5) the child’s preference; and (6) the parent’s true motivations for requesting the name change.

The COA examined the evidence in support of each of the elements and determined the evidence as sufficient and overruled father’s issue.

As for the second issue, the COA found the record was incomplete and the father had failed to provide a record which showed he proffered the excluded evidence. The trial court was affirmed.

In Zewde v. Abadi, No. 14-16-00536-CV, the husband appealed from final decree of divorce. Husband and wife were married in January 2014 and their son was born in June 2014. In February 2015, the husband filed an Original Petition to Declare Marriage Void, claiming the wife never properly divorced her prior husband and thus their marriage was void. The wife filed a counter-petition for divorce.

The trial court bifurcated the case, deciding the marriage validity issue on February 15, 2016 and then the divorce issues on May 11, 2016. The husband was represented by counsel in the first stage but was pro se during the second.

During the marriage validity trial, the wife testified that she married her first husband in 2002 in Eritrea, they had two children together, and then they were legally separated in an Italian court proceeding in 2009. The Italian court ordered the first husband to pay child support. The wife initiated pro se divorce proceedings in her native Eritrea in 2013. The record contained a Eritrean divorce decree dated November 12, 2013 and an English translation thereof. The Eritrean decree ordered the wife to announce the proceedings in a local newspaper and that notice appeared in the newspaper on October 22, 2013. The husband produced a copy and translation of the notice of the Eritrean proceedings published in the Eritrean newspaper. The notice states the first husband should be present in the court at 8 a.m. on November 13, 2013. But the decree was granted November 12, 2013. The first husband did not appear in court and the wife took a default judgment. The Court of Appeals noted neither side presented the trial court with any Italian or Eritrean law.

The husband introduced an Italian court decree which indicated proceedings in Italy were ongoing in 2013. This decree was not a divorce decree but a decree on issues related to separation including possession, child support, and damages. The trial court denied the husband’s request that his marriage to the wife be declared void.

The second phase, the divorce phase, began May 11, 2016. Evidence of violence by the father was presented. At the conclusion of trial, the trial court named the wife as SMC and the father as PC. The father was awarded limited possession rights until the child turned three years old and then an SPO would take effect. The trial court awarded child support, retroactive child support, and an additional monthly sum for medical expenses. Father appealed, asserting five issues.

In his first and fifth issues, he challenged the sufficiency of the evidence to support the validity of the marriage determination. In Texas, a marriage is presumed valid and when a person is alleged to be married to more than one person, the most recent marriage is presumed valid against any prior marriage. Thus it was the father’s burden to establish his marriage to the wife was invalid.

Essentially, since neither party presented any evidence on Italian or Eritrean marital law, the husband was unable to establish that the divorce in Eritrea was invalid, either because the notice was improper or because the Italian proceedings were ongoing. The COA overruled the issues.

In his second issue, the husband argued the trial court erred in denying a pretrial motion but the COA overruled the issue because the trial court denied the motion because the husband failed to provide sufficient notice of the motion.

In his third issue, the husband argued the trial court erred in excluding certain exhibits at trial which the trial court excluded on the basis of the wife’s hearsay objection. Because the husband did not offer any argument at trial or on appeal as to why the exhibits were not hearsay, the issue was overruled.

In his fourth issue, the husband argued the trial court erred in considering alleged misrepresentations made by the wife’s counsel but the record did not reflect that the husband objected to the statements in trial and thus they were not preserved for appeal. The trial court was affirmed.

 

 

 

 

The Jury Demand Strikes Back: Opinions, July 25, 2017

The First and the Fourteenth Courts of Appeal released memorandum opinions yesterday, on jury demands and, essentially, the unlikelihood of success on appeal where a reporter’s record is not filed.

In Wheeler v. Wheeler, No. 01-16-00642-CV, the parents filed dueling mods. The father (a criminal defense lawyer)  filed a jury demand and paid the fee. The proceedings in trial court were, to use the First’s word, “rancorous.” The mother moved to strike the father’s jury demand as a sanction for failure to pay court-ordered amicus fees. The trial court granted the request and struck the jury demand. The father moved for reconsideration of the order, arguing the order violated his constitutional right to a jury trial, but the motion was denied.

After the conclusion of a bench trial, the trial court increased the father’s child support obligation and reappointed the parents as JMCs, with mother as primary. Father appealed.

The refusal to grant a timely-requested jury trial is harmless error only if there are no material fact issues. A party is entitled to a verdict by a jury on the issue of which JMC is to be primary. The First cited its opinion in In re I.R.H. & Z.T.H., No. 01-15-00787-CV, (which I previously blogged about here) for the proposition that “[a] trial court abuses its discretion by striking the jury demand of a party for failure to pay the amicus fee when that party has raised” a material fact issue to be decided by the jury under Tex. Fam. Code §105.002(c). It is surely not a coincidence that the First cited In re I.R.H., and not just because the relevant facts are nearly identical, but because the trial court in that case and the present case are the same.

Because the father presented some evidence in support of his claim to be appointed primary JMC, the trial court erred by depriving him of a jury trial on that issue. The case was reversed and remanded for reinstatement on the jury docket.

In In re Adamski, No. 14-16-00099-CV, the mother and father had one child together during the marriage. A jury trial was held in May, 2015, and remaining issues were tried to the bench in October, 2015. The father was represented by counsel during the jury trial portion, but not the bench trial portion. The father did not appear for the third day of the bench trial portion. On November 13, 2015, the father filed a motion for continuance in which he made allegations of physical abuse of the child by the mother, but no hearing was held on the motion.

On February 2, 2016, the trial court entered a final decree which appointed the mother primary JMC. On appeal, he also did not file a reporter’s record (cue ominous music).

In his first issue on appeal, the father argued the trial court erred in ordering above-guideline support, relying upon his tax returns attached to his inventory which was filed with the trial court. But because he did not obtain a reporter’s record, the Fourteenth could not determine if the returns were admitted into evidence at trial or any other evidence regarding his income was admitted. The issue was overruled.

In his second issue, the father argued the trial court erred in ordering a division that did not conform to the parties’ premarital agreement. But because the COA did not have the reporter’s record, it could not tell if the premarital agreement was admitted into evidence. The issue was overruled.

In his third issue, the father argued the trial court erred in not granting his motion for new trial. But because he never requested a hearing on the motion, the issue was waived. Also, the COA stated in a footnote that even if he hadn’t waived the issue, he did not meet his burden under Craddock in the MNT. The trial court was affirmed.

 

 

Pleading Affirmative Defenses: Opinions, July 20, 2017

The Fourteenth Court of Appeals released a brief memorandum opinion in Moore v. Moore, No. 14-15-00859-CV, yesterday. Johnnie Moore sued his ex-wife Kathalean Moore for breach of an agreement incident to divorce. Kathalean countersued for enforcement of the property division. Under the AID, Kathalean was to turn over the marital residence and Johnnie was to pay Kathalean $1.4m in installments. Johnnie alleged that when he took possession of the property, it was in shambles and had been stripped of its fixtures. Kathalean alleged that Johnnie had failed to pay her $665,960.00 as required by the AID. The jury found for both parties, awarding Johnnie $183,600.00 on his conversion claim, $136,592.00 on his breach of contract claim, and $25,000 on his civil theft claim, and awarding Kathalean $650,000.00 on her breach of contract claim. The trial court disregarded the jury’s findings as to the breach of contract and civil theft claims because they represented a double recovery. Johnnie appealed.

In his first issue, Johnnie argued the trial court by denying his motion to disregard the jury’s finding that Johnnie breached the agreement. Johnnie argued that Kathalean had breached the agreement first and because she materially breached the agreement first, he was excused from further performance. While this is a perfectly valid affirmative defense, it appears Johnnie failed to plead it and it was not tried by consent. Thus the defense was waived. Even if he had pled it, the Court of Appeals noted Kathalean’s counter-petition alleged Johnnie missed two payments before she surrendered the residence.

In his second issue, Johnnie argued the trial court erred by disregarding the jury’s findings in Johnnie’s favor on his claims for breach of contract and civil theft. The COA found these damages arose from the same facts, same injuries, and same measure of damages and thus constituted an impermissible double recovery. The judgment was affirmed.

Modification in Less Than a Year & Partial Revocation of a Rule 11: Opinions, July 11, 2017

Yesterday, the Fourteenth Court of Appeals released a published opinion, In re J.R.P., No. 14-15-00912-CV, and a memorandum opinion, In re D.R.G., No. 14-16-00023-CV. The published opinion concerns modifications of custody within a year of a final order and the memorandum opinion is on partial revocation of a Rule 11 agreement.

Taking the published opinion first, In in re J.R.P., a conservatorship order was entered in December 2013, naming the parents as JMCs with mother as primary. Father filed a mod in May 2014 and alleged in his affidavit that the mother had been taking drugs. At a temporary orders hearing in June, the mother requested the case be dismissed because father’s affidavit was not sufficient to support a less-than-a-year mod. The trial court declined to dismiss the case and the parties agreed the mother would submit to drug testing the next day. Within a few weeks, the father filed an amended mod petition with a revised affidavit which stated the mother had tested positive for drug use. The court conducted a temporary orders hearing and found the child’s living environment with mother endangered the child. The trial court awarded father primary and mother supervised visitation.

Trial took place in May and July 2015 at which further evidence of mother’s drug use was presented. Mother represented herself pro se. In August, the trial court granted the father’s petition to modify and entered an order appointing father and mother as JMCs with father as primary. After her motion for new trial was denied, mother appealed.

In her first two issues, mother argued the trial court erred in not dismissing the mod after finding father’s first supporting affidavit was insufficient and when it ruled the second affidavit was sufficient. The Court of Appeals found that the trial court did not abuse its discretion because the statute does not require dismissal and the trial court’s findings of fact and conclusions of law set forth its findings that the second affidavit was sufficient under the statute.

In her third issue, mother argued the trial court erred by granting the mod when there was no material and substantial change. This argument did not get very far because the evidence showed that since the entry of the prior order in December 2013, the mother had tested positive for drugs, refused to participate in CPS services or drug testing, admitted to using drugs (including crystal meth and marijuana), and there was testimony that mother’s behavior was erratic. The opinion also includes the following sentence presented without comment: “To the extent [the mother] argues that she was unstable and had a drug habit prior to the agreed final order in December 2013 and her use of drugs after that order was a continuation of established behavior, the trial court could have rejected this argument based on [the father]’s testimony that she had passed a drug test prior to the final order and he thought she had stopped using drugs.” The COA overruled the third issue.

In her fourth issue, the mother alleged the trial court erred by relying on “hearsay statements of an admitted perjurer,” i.e. the father. The COA found there was sufficient non-hearsay evidence to support the judgment.

The COA overruled the mother’s fifth issue concerning admissibility of evidence because the issue was not preserved. The judgment was affirmed.

In In re D.R.G., parents who had been named JMCs in the prior order filed competing mod petitions. They then signed a Rule 11 agreement on all issues, including their agreement to remain JMCs with father’s child support increasing. One provision allowed the child to travel by air without the father’s supervision upon reaching the age of ten. But in his amended petition, the father requested an order allowing the child to fly alone beginning at the age of five. Four months after signing the Rule 11, the father filed a motion for partial revocation of the Rule 11, specifically with regard to the travel age provision.

At trial, the trial court requested evidence to show the agreement was in the best interest of the child. The mother testified that she did not believe it was in the child’s best interest to fly alone at the age of six. The father testified that the child would be accompanied by a flight attendant and the child would never be left alone and would not be in danger. He also testified that he felt coerced into authorizing his attorney to sign the Rule 11 agreement because the mother had allegedly refused to turn over possession of the child to be the ring-bearer in the father’s wedding unless he signed the Rule 11.

The trial court signed an order which found the child could travel by air unaccompanied after the age of five. The mother appealed, seeking modification of the judgment to prohibit the child to fly alone until the age of ten.

On appeal, the mother asserted two issues: 1) the evidence was insufficient to support the father’s allegation that he was under duress and coercion when he signed the Rule 11 agreement; and 2) the Rule 11 was unambiguous and the trial court was required to sign a judgment consistent with the Rule 11 agreement because a) the father withdrew his consent to only a portion of the agreement which is not effective to withdraw consent because the agreement was an integral whole, and b) the father’s attorney signed the Rule 11 agreement with the father’s permission.

The Court of Appeals found the father’s partial revocation was sufficient to prevent the trial court from rendering an agreed judgment and the trial court did not err in rendering a judgment on the issues raised by the parties’ petitions in accordance with the best interests of the child.

The COA found that the father’s partial revocation was effective, contrary to the mother’s argument, citing the “familiar principle” that partial revocation of a Rule 11 prevents a court from entering an agreed or consent judgment.  The agreement was not an MSA, which would have required the trial court to enforce the MSA, regardless of a party’s revocation of consent. Additionally, the mother did not challenge the trial court’s best interest finding, so the COA was not required to review it. The judgment was affirmed.