Opinions, March 3, 2015

On March 3, 2015 (I’m a bit behind), the First Court of Appeals issued two family law opinions, In re Shifflet, No. 01-14-010929-CV (Tex.App.–Houston [1st Dist.] Mar. 3, 2015) (orig. proceeding) and Chisti v. Chisti, No. 01-13-00780-CV (Tex.App.–Houston [1st Dist.] Mar. 3, 2015).

The latter is a lesson in persistence. Sana Chisti and Shamser Chisti divorced in 2006. In 2013, Shamser Chisti filed a bill of review to set aside the divorce decree, which included an affidavit of inability to pay the filing fee. The Harris County District Clerk contested the affidavit, the trial court held a hearing on the contested affidavit but Shamser did not appear. He was ordered to pay the costs to avoid DWOP and the court dismissed the bill of review when he failed to do so. On June 24, 2013, Shamser filed a verified motion to reinstate the case in which he stated he did not receive notice of the trial court’s intent to dismiss the case. Though he requested a hearing, the trial court did not set one and the motion to reinstate was overruled by operation of law. On appeal, only Shamser filed briefs. Citing Tex. R. Civ. P. 165a(3)’s non-discretionary requirement that a trial court must set a hearing on a verified motion to reinstate the case, the Court of Appeals held that the trial court’s apparent failure to notify him of its intent to dismiss his case for  want of prosecution with the date or place of the dismissal merited reversal. Incidentally, Shamser’s argument in his bill of review is that the divorce decree should be set aside because he has since discovered that his ex-wife married someone else while they were still married.

In re Shifflet is a mandamus in which the step-grandparents of the subject children challenged the trial court’s ruling that they did not have standing to intervene. In a 2009 agreed modification order the parents of the children (a 16-year-old and a 13-year-old) were named JMCs and the father’s step-father and wife, the Shifflets, were granted reasonable phone access to the two children. On May 1, 2014, the father filed a petition for writ of habeas corpus with respect to the children, alleging the mother had illegally kept them from him. The mother’s answer alleged the father had been convicted of domestic violence and that he had relinquished control of the 16-year-old child for more than six months prior to the filing of the habeas corpus writ. In an attached affidavit, she alleged she had had possession of the 13-year-old child since March, 2014. The father did not appear for a hearing on June 10, 2014 and the Shifflets were not noticed and also did not appear. On June 18, 2014, the trial court signed an order denying the father’s habeas petition. In this order, the trial court made factual findings including that the 16-year-old had been in the mother’s possession for over six months before the filing of the habeas, that the father had not had any possession of the 16-year-old since July 2013, and that the 13-year-old had been in the mother’s possession since March 2014, and that the father had not had any possession of the 13-year-old since March 2014. The trial court also entered temporary orders naming the mother as temporary SMC and the father as temporary PC but enjoined the father from having any access or possession of the children until further court order. Later that day, the mother filed a motion to modify asking to be named the permanent sole managing and possessory conservator, seeking restraining orders against the father and his current wife.

On September 21, 2014, the Shifflets filed a petition in intervention seeking to be named SMCs of the 13-year-old. They claimed standing under the 2009 order and because they had actual care, control, and possession of the 13-year-old for at least six months. They also stated that the father had relinquished the actual care, control, and possession of the 13-year-old for at least six months and that they had actual care, control, and possession of him for more than that period. In their attached affidavit, they stated the 13-year-old had lived with them from May 2004 to August 2008 and again from March 2014 until September 15, 2014, with the consent of both parents, and that the mother had lived with them from March 2014 until June 5, 2014. They stated the mother was living in an unsafe hotel and that the children were not enrolled in school. The same day, they sought a TRO restraining the parents and requesting they be ordered to pay child support while the case was pending. On October 2, 2014, the trial court signed the TRO and set a hearing for October 22, 2014 for temporary orders and to determine if the TRO should be made a temporary injunction pending final hearing.

The mother filed her answer to the Shifflets intervention on October 8, 2104, arguing they lacked standing to intervene because they were not the biological grandparents of the 13-year-old and that they did not have actual care, control, or possession of him for at least six months ending not more than 90 days before the intervention petition was filed under Section 102.003(a)(9). The mother then moved to dismiss the Shifflets’ petition in intervention for lack of standing because the June 18 order named the mother as SMC of both children and that the factual findings (that the children had been in her possession since at least March 2014) negated the Shifflets’ standing because, she argued, they could not have had “exclusive” possession for the statutorily-required six month period. The mother also alleged that it was the Shifflets who wrongfully withheld the 13-year-old from her and failed to enroll him in school.

On October 22, the trial court held a non-evidentiary hearing on standing and heard from both counsel on the mother’s motion to dismiss. At the mother’s request, the court took judicial notice of the June 18 order (excluding the father from access and finding the mother had possession of the children since March 2014). The mother argued the order’s factual findings made the Shifflets’ affidavit “insufficient as a matter of law” under Section 102.003(a)(9) and thus required dismissal of the Shifflets’ intervention. The mother also argued the intervention should be dismissed because the parental presumption under Chapter 153 of the Family Code should be applied.

The Shifflets countered that Section 102.003(a)(9) does not require that a person seeking conservatorship under the general standing provision be a blood relative, which they had conceded they were not. They also stated they were present in court and prepared to testify as to their actual care, custody, and control of the children, but the trial court did not permit them to testify. The Shifflets also asserted they had standing under Section 156.002(a) because they were “affected” by the June 18 temporary order because the 2009 order granted them reasonable phone access.  They also asserted they had standing under Chapter 153 of the Family Code and requested under Section 153.009 that the Court interview the children to determine with whom the children wished to live.

Without hearing the Shifflets’ testimony and without taking evidence, the trial court granted the mother’s motion to dismiss. Immediately after that, the trial court held an evidentiary ex parte hearing on the mother’s separately filed habeas petition whereupon she testified that though the children had recently returned to stay with the Shifflets because she and her new husband had been staying in a hotel since June 2014, she had moved into a new house but the Shifflets had refused to turn over possession of the children the previous weekend. Without hearing any other witnesses, the trial court granted the mother’s habeas writ. The Shifflets filed a mandamus petition on November 19, 2014.

The Court of Appeals found the trial court erred by taking judicial notice of the the June 18 temporary order because 1) there is nothing in Section 102.003(a)(9) that requires the care, custody, and control be exclusive, and 2) standing is a necessarily fact-specific inquiry which is not properly established by judicial notice and the trial court should have permitted the Shifflets to testify to rebut the June 18 order’s factual findings, particularly since the Shifflets were not present at the June 10 habeas proceeding because they were not noticed.

As to the mother’s arguments that the Shifflets lacked standing to intervene under Chapter 153 and 156 of the Family Code because they were not parties to the 2009 order, the Court of Appeals relied on the holding in In re S.A.M., 321 S.W.3d 785, 790 (Tex.App.–Houston [14th Dist.] 2010, no pet.) which found that a non-relative’s right to daily telephone contact with the children in a prior order was sufficient interest to be “affected” under Section 156.002(a). The Court of Appeals found the Shifflets’ rights to telephone visitation in the prior order was sufficient and further, the record showed the parents agreed the children should live with the Shifflets for extended periods of time.

The mother also argued that the parental presumption under Chapter 153.131 should override the Shifflets’ interests but the Court of Appeals stated that presumption does not apply in Chapter 156 modification cases like this one.

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