Opinions, April 28, 2015

The First Court of Appeals released a published opinion this morning in Ashfaq v. Ashfaq, No. 01-14-00329-CV (Tex.App.–Houston [1st Dist.] Apr. 28, 2015) and the Fourteenth released an unpublished opinion in In re R.N.Y., No. 14-14-00984-CV (Tex.App.–Houston [14th Dist.] Apr. 28, 2015).

In Ashfaq, the husband and wife were married in Pakistan in 2007. In 2011, the wife petitioned for divorce in Harris County, Texas. Trouble was, the husband had already procured a divorce in Pakistan in 2010. Thus the trial court dismissed the petition for divorce for want of jurisdiction and treated the rest of the petition as a post-divorce petition for division of marital assets. In the Houston proceeding, the husband provided the testimony of an expert in Pakistani divorce law who testified that the divorce procured by the husband in Pakistan was valid. In addition to other procedural hoops, Pakistani divorce requires the husband to pronounce “talaq” (“I divorce you”) three times and then provide a copy of the divorce deed to the wife. At trial, the wife admitted she had received Pakistani divorce papers from the husband. On appeal, the wife raised a number of objections which the Court of Appeals dismissed. First, the wife alleged that the husband and wife did not meet the domiciliary requirements under Texas law to be divorced. The Court of Appeals noted that Pakistani divorce law does not appear to have the same domiciliary requirements Texas does and thus the issue did not affect the validity of the Pakistani divorce. The Pakistani expert said as along as the husband and the wife were still Pakistani citizens when the Pakistani divorce happened, they met Pakistani’s domiciliary requirements (wife was a Pakistani citizen and the husband had dual U.S. and Pakistani citizenship). Further, Texas courts treat foreign law as a fact issue and the wife did not present any evidence to contradict the husband’s Pakistani expert. Additionally, the wife argued on appeal that the Pakistani divorce was invalid because it offended public policy because it denies due process and was fundamentally unfair. But the Court of Appeals noted that she had admitted at trial that she received some notice of the Pakistani divorce proceedings and that, as a matter of comity, Pakistani divorces can be recognized as valid where there is notice. Finally, the wife argued the divorce was not valid under Pakistani law, but she only raised some of these issues for the first  time on appeal. Because she only raised some of the issues for the first time on appeal and failed to controvert the husband’s expert testimony that the Pakistani divorce was valid at trial, the Court of Appeals affirmed.

In R.N.Y., the mother and father appealed the trial court’s decree terminating their parental rights. The father’s appointed counsel filed an Anders brief but the mother’s sole issue on appeal was whether the termination was in the child’s best interest. The Court of Appeals affirmed. The child incurred broken ribs and bruises a few months after birth, in or around December 2013. In February 2014, the father was arrested for injury to the child and incarcerated.  The mother tested positive for drugs on four out of twelve occasions throughout 2014. The trial court made predicate findings that the mother had committed acts establishing grounds set out in subsections D, E, and O, of section 161.001(1) of the Texas Family Code which the mother did not challenge. Instead the mother argued that the DFPS did not defeat the presumption in favor of keeping the parent-child relationship. The Court of Appeals then reviewed the Holley factors as applied to the case, emphasizing the drug history, the mother’s failure to complete the service plan, and that testimony which indicated the mother knew or should have known about the broken ribs. Also, the maternal grandmother was ruled out as a potential placement because the injuries to the child occurred in her house despite the fact that the father was solely responsible for the injuries. Despite evidence that the mother had made significant attempts to complete the service plan, visited her son frequently, the maternal grandmother might have been a suitable placement, and that the service plan was difficult for her to complete, the Court of Appeals, perhaps surprisingly, found the evidence was sufficiently clear and convincing to terminate her parental rights.

Opinions, April 16, 2015

This morning, the First District Court of Appeals issued its memorandum opinion in In re Tracy Gibbs, 01-15-00218-CV (Tex.App.–Houston [1st Dist.] Apr. 16, 2015) and the Fourteenth issued two memorandum opinions in parental termination cases, In re T.M., No. 14-14-00948-CV (Tex.App.–Houston [14th Dist.] Apr. 16, 2015) and In re D.T. Jr., No. 14-14-01003-CV (Tex.App.–Houston [14th Dist.] Apr. 16, 2015).

In the First District’s opinion, In re Tracy Gibbs, the court granted the habeas corpus petition of the relator. The ten-year history of this case is: Relator Gibbs had a child support judgment of about $27,000.00 against him and he was incarcerated for failure to pay. He filed a habeas and attached an affidavit setting forth his utter destitution and inability to obtain the funds to pay the judgment. The Real Party in Interest did not controvert the affidavit, which resulted in the Court of Appeals ordering Gibbs’ release because he established his inability to pay the judgment which would purge him of his contempt.

In In re D.T. Jr., the Court of Appeals accepted the Anders brief of appellant’s counsel.

In In re T.M., the father appealed the termination of his parental rights to his child after a jury trial. Before trial, the father had been incarcerated for PCP possession and also failed to complete the service plan proposed by the DFPS (though, to be fair, he completed a large portion of it). The Court of Appeals affirmed, finding the evidence was legally and factually sufficient under Texas Family Code 161.001(1)(E).

Opinions, April 14, 2015

This morning, the First District Court of Appeals issued its unpublished opinion in Kuzbary v. Kuzbary, No. 01-14-00457-CV (Tex.App.–Houston [1st Dist.] Apr. 14, 2015) (mem. op.). Sam Kuzbary appealed a protective order granted in favor of his daughter Miriam Kuzbary in the trial court. Miriam’s parents lived in Dallas but Sam had obtained employment in the Houston area. For a while he stayed with Miriam at her apartment, but she eventually asked him to leave because he was drinking a lot and yelling at her. After he left, he sent what appears to be many, many threatening emails to Miriam. The police instructed him many times to stop communicating with her, but often within hours of speaking to the police, he would send her another violent email. Sam also contacted Miriam’s employment and other third parties she was associated with. Miriam testified that Sam had been violent with her in the past and that she feared for her emotional and physical safety. The trial court found family violence had occurred in the past and was likely to occur in the future and issued a protective order which barred Sam from contacting Miriam, coming within 400 feet of her or her residence, school, or work, and ordering Sam to relinquish possession of his multiple firearms and complete a battering intervention and prevention program. Sam filed a motion for new trial which was denied and then timely appealed. Sam challenged the legal and factual sufficiency of the trial court’s findings that family violence had occurred in the past and was likely to occur in the future. The Court of Appeals affirmed.

Opinions, April 9, 2015

On April 9, 2015, the First Court of Appeals released an unpublished opinion in Thottam v. Joseph, No. 01-13-00377-CV (Tex.App.–Houston [1st Dist.] Apr. 9, 2015). In the divorce Jameson and Elizabeth agreed to submit child custody issues to a mediator which resulted in an MSA. They then submitted property issues to an arbitrator. Jameson filed a motion to vacate the arbitration award and an objection to the entry of the divorce decree. He subsequently filed a motion for new trial and a motion to modify, correct and/or reform the custody portion of the judgment. The trial court denied Jameson’s motion for new trial but granted his motion correct, modify, and/or reform the judgment, ordering the parties to arbitration over custody-related provisions in the decree. The trial court finally signed an amended final divorce decree which incorporated the MSA and the arbitration award.

Jameson’s appeal can be divided into custody-related issues and property-related issues. In all of his custody-related arguments, Jameson alleged the final divorce decree differed substantially from the MSA: geographical restriction, period of possession, and arbitration. On each issue, the court of appeals disagreed and affirmed the trial court.

Things get more interesting with the property issues. On page 15 of the opinion, the court mentions for the first time that Jameson filed Chapter 7 bankruptcy on the second day of arbitration. The bankruptcy court signed a settlement order authorizing the trustee to enter into a settlement with some of Jameson’s bankruptcy estate creditors, including Elizabeth (Jameson appealed this settlement order to the U.S. District Court, but that was dismissed). That settlement became final in the bankruptcy court. Under this settlement, Elizabeth agreed to transfer one of the properties she received in the arbitration to the bankruptcy estate (which would then liquidate it).

Elizabeth argued that by voluntarily filing bankruptcy which resulted in the relinquishment, sale and liquidation of marital property asserts allocated to him in the trial court’s property division which went to pay off his creditors, Jameson accepted the benefit of the judgment which precluded his pursuit of issues regarding the division on appeal. In response, Jameson argued two narrow exceptions to the “acceptance of benefits” doctrine, including: 1) he accepted the benefits out of economic necessity; and 2) a reversal of the judgment will not affect his rights to the benefits he received.

As for economic necessity, Jameson argued that although he accepted benefits from the division of the marital estate, he provided ample evidence to demonstrate financial hardship. But, disastrously for his argument, he failed to point out where in the 5,000+ page record the evidence was.

As for the effect of reversal of the judgment, Jameson argued a reversal of the judgment cound not have possibly affected his right to the benefits accepted because he would have filed for bankruptcy regardless of the pending divorce proceedings. The Court of Appeals called this argument misplaced because if the judgment was reversed, Jameson could not be assured that the properties already sold to pay off his creditors would be awarded to him in any re-division of the marital estate. This was enough uncertainty to defeat Jameson’s argument.

As such, Elizabeth’s motion to dismiss the property-related portion of the appeal was granted.

Opinions, April 7, 2015

The First Court of Appeals issued an unpublished opinion yesterday morning in Sydow v. Sydow, No. 01-13-00511-CV (Tex.App.–Houston [1st Dist.], Apr. 7, 2015) (mem. op.) and the Fourteenth released a published opinion in Morris v. O’Neal, No. 14-14-00252-CV (Tex.App.–Houston [14th Dist.] Apr. 7, 2015).

The Sydow v. Sydow case represents an interesting circumstance where an obligation incurred in Temporary Orders was not extinguished by the subsequent MSA or final decree. Under the temporary orders, the husband Michael was ordered to pay the expenses (insurance, HOA fees, and taxes) of a condominium unit occupied by the mother, Kelli. It is important to note that Michael had negotiated the rental agreement without Kelli’s involvement. In fact, Kelli testified that she thought they owned the unit. Michael stopped paying the expenses and Kelli and their minor child were evicted.

A month after the eviction, the parties signed an MSA. The MSA signed by the parties did not reference the condo expenses but did state that any and all undisclosed and undivided community liabilities would be paid by the party who incurred the liability. Similarly, the final decree did not explicitly refer to the condo expenses but required the party who incurred a liability during the marriage to pay it.

Michael filed a motion to clarify, asking the court to compel Kelli to pay the condo expenses. The trial court complied and ordered the decree clarified to award the condo expenses to Kelli. The trial court based its decision, in part, on the conclusions that Kelli had exclusive use and possession of the condo until she was evicted and that the final decree superseded all liabilities and obligations imposed on either party by the temporary orders. Kelli appealed, arguing the condo expenses were incurred during the marriage by way of the temporary orders, remained Michael’s liabilities under the final decree, and that the clarification order impermissibly altered the division by shifting those obligations to Kelli. Michael argued that the temporary orders were superseded by the MSA, rendering them of of no force or effect and, specifically, releasing him from any obligation to pay the condo expenses. The MSA includes language that it “shall be effective immediately as a contract, shall supersede any temporary orders or other agreements of the parties with respect to the subject matter hereof.” Kelli contended the MSA only relieved the parties of future obligations imposed by the TO, but not past obligations that had already accrued; because there was no order relieving Michael of his prior obligations under the TO, the condo expenses were obligations incurred under the TO and survived the MSA and final decree. The Court of Appeals agreed, finding “it is apparent that the parties agreed that the MSA replaced or took the place of the Temporary Orders as of the MSA’s effective date, thereby terminating any future or continuing obligations imposed by the Temporary Orders.” Further the MSA did not explicitly set aside or nullify any prior obligations imposed by the Temporary Orders and caselaw holds that a final divorce decree “supersedes” temporary orders but does not extinguish liabilities that have already accrued thereunder. Thus, because the final decree and MSA did not alter or discharge Michael of his obligation to pay the condo expenses, the Court of Appeals found the trial court’s clarification void and dismissed the appeal for want of jurisdiction.

Let this be a cautionary tale to those who think that an MSA or final decree will categorically replace the temporary orders. Unless specifically extinguished, debts incurred by a party prior to an MSA or final decree can survive.

Morris v. O’Neal is a bill of review case which once again illustrates the dangers of an incomplete record. Parents Morris and O’Neal entered into an MSA to resolve a modification suit which resulted in the trial court signing a final order modifying P&A. Three months later, O’Neal filed a motion for judgment nunc pro tunc, asking the court to modify the final order to include provisions for long distance access and visitation which O’Neal claimed was the central reason for the parties’ mediated agreement. (This begs the question, if it was the central reason, how did it not make it into the final order?) The trial court signed the JNPT, including the terms for long-distance access and visitation but also omitting certain other terms that were contained in the original order. A year later, Morris filed a bill of review to set aside the JNPT, alleging that the JNPT corrected a judicial error after the expiration of the court’s plenary power and was void. Morris alleged he didn’t find out about the JNPT until after the time to appeal had passed. The trial court denied the bill of review and Morris appealed.

In his first issue, Morris argued the trial court erred by denying him an evidentiary hearing or denying him the opportunity to amend his pleadings. But there was nothing in the record showing Morris ever raised these purported errors to the trial court: no hearings, no oral objections, and no motions alleging a procedural defect. The Court of Appeals held he waived this purported error.

In his second issue, Morris argued the trial court erred in denying the bill of review on the merits. Specifically, Morris claimed that the JNPT was a judicial correction beyond the scope of nunc pro tunc. The Court of Appeals noted, however, that the only evidence in the record presented by Morris to the trial court was a certified copy of the JNPT attached as an exhibit to his petition for bill of review. Morris did not present a copy of the trial court’s original final order with his petition or subsequent bench brief, which would be necessary to demonstrate the interval of time and substantive changes between the orders to raise the possibility that the JNPT was void. Morris referenced certain details about the original final order in his petition and subsequent bench brief, but that is not evidence, the court says. Nor did Morris ask the trial court to take judicial notice of the original final order. Though Morris included the original final order as a supplement to the clerk’s record, the Court of Appeals declined to consider evidence that wasn’t before the trial court when it determined whether Morris had presented prima facie proof of a meritorious ground for appeal.

Finally, the Court of Appeals noted that even if it considered the final order, it still could not conclude that the JNPT was void because there is an unresolved fact question as to whether the trial court rendered judgment on O’Neal’s petition to modify prior to signing the original final order.  O’Neal submitted some evidence of a rendition by the trial court prior to the signing of the original final order, but there was no evidence otherwise. Thus the Court of Appeals affirmed the denial of the bill of review.

The Fourteenth’s Morris v. O’Neal is an interesting contrast to the First’s bill of review decision from last month, Barnes v. Deadrick, No. 01-14-00271-CV (Tex.App.–Houston [1st Dist.], Mar. 17, 2015) (which I blogged about here).  In both cases, the questions turned on the completeness of the record. But Barnes broke in favor of the bill of review plaintiff, unlike in Morris. 

Opinions, April 2, 2015

This morning the Fourteenth Court of Appeals issued its opinion in In re T.L.R. and T.J.R., No. 14-14-00812-CV (Tex.App.–Houston [14th Dist.] Apr. 2, 2015) affirming the termination of the mother’s parental rights. One of the mother’s grounds for appeal was that she had sent CPS requests for admissions which CPS received but did not answer. At trial, however, she testified to her criminal history and positive drug tests and by failing to object to evidence that contradicted her deemed admissions, she thereby waived her deemed admissions. The Court of Appeals noted that requests for admissions should be a tool for stipulations as to uncontroversial matters and not a “trapdoor” for conclusions on the merits, but the result did not turn on this point. After that, the mother’s testimony regarding her extensive drug use and criminal history were sufficient to support the finding of endangerment and, eventually, termination.