Opinions, March 17, 2015

Today the First and Fourteenth Courts of Appeals released the following four family law opinions.

From the First Court of Appeals:

Colmenero v. Colmenero, No. 01-14-00071-CV (Tex.App.–Houston [1st Dist.], Mar. 17, 2015) is a reminder of the minimum testimony required for a just and right division of a marital estate in a default judgment divorce. In this case, the husband appealed a default judgment. The wife had served him but he did not answer. At trial, the mother testified that she and the husband owned a parcel of real property here in Houston and during the marriage purchased six others in Mexico. However, no documents were entered into evidence and the mother failed to identify the values of key pieces of the marital estate. The Court of Appeals ruled there was insufficient evidence to support the division and reversed and remanded.  Additionally, because the child support award of $400 per month may have been “materially influenced” by the division, the child support determination was also reversed.

Barnes v. Deadrick, No. 01-14-00271-CV (Tex.App.–Houston [1st Dist.], Mar. 17, 2015) with a strongly worded dissent. This is an interesting bill of review case with a long history which serves as an unfortunate reminder to victors to obtain an order or record memorializing a win. In the underlying SAPCR filed in 2007, Deadrick, the half-sister of the subject child, was appointed SMC in April, 2009, when Barnes, the father, did not appear for trial. Barnes later claimed he was never served and substitute service at an incorrect address was insufficient. Barnes subsequently filed a bill or review and, a year and a half later, in September, 2010, failed to appear for a hearing (though Deadrick and her attorney were present). The Associate Judge made a docket notation “Bill of Review denied” and orally denied the bill of review. No order was entered memorializing the denial and, sadly,  no transcript made it into the record. On February 15, 2011, the presiding trial court judge entered an order for DWOP.

Barnes then filed a second bill of review almost two years later, on January 31, 2013 which is the subject of the appeal. He argued that he was never served with the original SAPCR proceeding. Deadrick answered, asserting res judicata. At a hearing in December 2013, the court agreed and denied the second bill of review on January 9, 2014. Barnes filed a motion for new trial which was denied and, in fact, the trial court levied sanctions against Barnes for fees.

On appeal, the Court of Appeals held that a docket sheet notation is not a final judgment on the merits (which is a necessary element of res judicata). Additionally, the DWOP order was presumptively without prejudice.  In a lengthy footnote, the Court of Appeals recognized the possibility that the verbal denial of the first bill of review by the AJ may have been on the merits but no transcript appeared in the record.

Deadrick argued on appeal that the Court of Appeals can affirm the denial of the bill of review because Barnes did not meet his burden of offering proof at the first bill of review hearing in December 2013 to show each element of his bill or review claim. The Court of Appeals held, however, that when a bill of review plaintiff claims lack of service, they are relieved of establishing the first two elements of a bill of review (meritorious defense prevented by fraud , accident, or mistake) and because Barnes’ sworn bill of review petition alleged lack of service, he was not required to establish the first two elements of a bill of review.

Thus the Court of Appeals apparently agrees that Barnes had the burden of proving he was not served with the original SAPCR proceeding. In response to Deadrick’s argument that Barnes had his opportunity to do so at the December, 2013 hearing, the Court of Appeals stated the record indicates that the trial court conducted essentially a mini trial on Deadrick’s res judicata defense before reaching the issue of Barnes’ allegation of non-service. Because the trial court found the res judicata defense wholly defeated Barnes’ bill of review, the trial court did not take evidence on Barnes’ allegation of lack of service. The Court of Appeals remanded for further proceedings, presumably an evidentiary hearing on Barnes’ allegation of lack of service.

The robust dissent, by Justice Evelyn Keyes (who holds a Ph.D. in Philosophy from Rice and a Ph.D. in English from the University of Texas), takes Barnes to task for not filing a motion to reinstate his case under TRCP 165a after it was DWOPed, failure to provide any evidence of his lack of service at multiple opportunities, and generally not exercising diligence in prosecuting his case. Additionally, Justice Keyes suggests the more practical course of action for Barnes would be to file a modification instead of seeking to undo a SAPCR entered six years ago (and filed eight years ago) but I suppose Barnes would also like to undo the child support obligation incurred in the original proceeding as well (to the extent possible).

In the consolidated cases of In the Interest of A.A.M. and J.M., No. 01-14-00798-CV and In the Interest of I.L.M., 01-14-00801-CV (Tex.App.–Houston [1st Dist.], Mar. 17, 2015), the Court of Appeals upheld the termination of the father’s parental rights.

From the Fourteenth Court of Appeals:

In re Merrikh, No. 14-14-00024-CV (Tex.App.–Houston [14th Dist.], Mar. 17, 2015) is essentially two appeals on separate issues. In the first issue, the father appealed the trial court’s determination of child support which was based on his earning capacity and not his actual income as permitted by Section 154.066 because the trial court found he was intentionally unemployed or underemployed. The Court of Appeals affirmed as the trial court found the father’s business was a “sham corporation” (a finding not challenged by the father on appeal) and the trial court was thus permitted to include the corporation’s income for child support calculations.

The second issue involves the father’s parents and the conveyance of real property. The mother joined the father’s parents, the grandparents, to her divorce petition as co-respondents who challenged the trial court’s determination of a parcel of real property as the mother’s separate property. At issue were five deeds conveying the property. In August 1999, the grandparents conveyed the property to the father. In September 1999, the father conveyed the property to the mother. In October 1999, the mother conveyed the property to the father’s mother, the grandmother. The mother claimed that the father defrauded her by presenting her with only a signature page to the third deed, telling her it would transfer the property back to him when, in fact, it transferred the property to the grandmother. The Court of Appeals found the evidence was legally and factually sufficient to support a finding that the mother lacked the requisite intent to convey the property under the terms of the deed, rendering it void.

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