The Texas Supreme Court & Same-Sex Marriage, Pre-Obergefell v. Hodges

Today, the Texas Supreme Court disposed of two same-sex marriage cases, In re Marriage of J.B. & H.B., No.  11-0024, and State v. Naylor, No. 11-0114 (Tex. 2015). Though neither case resulted in a groundbreaking or even particularly impactful decision, the court took the opportunity to air its thoughts on same-sex marriage in a cacophony of voices. To paraphrase one of the Justices, the expected ruling of the U.S. Supreme Court in the next two weeks “will likely subsume the merits of” its decision today.

In both cases, couples legally married in Massachusetts filed for divorce in Texas. Texas does not recognize same-sex unions at all, including same-sex unions from other states where such unions are legal.

In the case of J.B. and H.B., the Fifth District Court of Appeals ruled that the district court lacked subject matter jurisdiction over the parties’ divorce and that Texas’ same-sex marriage bans do not violate the equal protection clause of the Fourteenth Amendment. In re Marriage of J.B. and H.B., 326 S.W.3d 654, 659 (Tex.App.–Dallas 2010, pet. dismissed). The Texas Supreme Court granted J.B.’s petition for review but H.B. passed away on April 11, 2015. J.B. filed a motion to dismiss on April 17, 2015 which was granted today.

The Texas Supreme Court actually issued a ruling in State v. Naylor, but did not reach the merits of the case. In Naylor, the parties were married in Massachusetts in 2004. They returned to Texas, adopted a child, and started a business together. Eventually they separated. In January 2009, Naylor filed a SAPCR which resulted in an agreed order. Naylor then filed a petition for divorce in the same cause number as the SAPCR and also later amended her pleadings to request a modification of the parent-child relationship. After a two-day hearing, the parties reached a settlement, the terms of which were read into the record on February 10, 2010 and the trial court granted a divorce.

The next day, the State filed a petition in intervention arguing the trial court lacked jurisdiction to grant the divorce because the parties were of the same sex. The State further argued the parties’ only vehicle for relief in Texas was to have the marriage declared void under Tex. Fam. Code 6.307. The trial court stated it could not consider the petition in intervention because it was not filed until after the rendition of the final judgment. The State appealed but the Court of Appeals dismissed the appeal for want of jurisdiction, finding the State lacked standing.

The Texas Supreme Court, in a profusion of opinions, agreed that the State’s petition in intervention was untimely. Frankly, with other matters pressing, I have not had time to read the four opinions in great detail. The majority opinion, authored by Justice Brown, was joined by Chief Justice Hecht and Justices Green, Johnson, and Boyd. Justice Boyd also filed a concurrence which emphasizes that the parties’ divorce decree is not binding on the State and also takes issue with several points in Justice Willett’s dissent. Justice Willett filed a dissent, which was joined by Justices Guzman and Devine, and Justice Devine filed his own dissent. The majority opinion in fact took pains to recognize Justice Devine’s “careful and thorough” treatment of the constitutional questions underlying the the case, and even stated it has “no quarrel” with his analysis. “Like Justice Devine,” the majority concluded, “we would appreciate the opportunity to address the merits of this issue of critical importance at this crucial juncture in our nation’s history. Yet we must respect the bounds of our jurisdiction by addressing only the questions immediately before the Court.”

Hovering over all of the opinions is the pending ruling in the U.S. Supreme Court expected by the end of the month. As Justice Willett put it, “The federal constitutional merits lurking in today’s case will be addressed within days.” The opinions give the distinct impression the court is not just clearing the deck before Obergefell v. Hodges makes landfall, but taking a stance before the U.S. Supreme Court weighs in, particularly with its explicit endorsement of Justice Devine’s dissent. This impression is strengthened by the fact the case has been on the court’s docket for literally years and there was no compelling reason to rule at all before Obergefell.

Opinions, June 18, 2015

The Fourteenth Court of Appeals released its memorandum opinion in Kelley v. Kelley, No. 14-14-00519-CV (Tex.App.–Houston [14th Dist.] Jun. 18, 2015) this morning, which is a contract interpretation case. Wayne and Jody Kelley divorced in 2011. Their decree incorporated a separate Agreement Incident to Divorce in which Wayne became obligated to buy Jody’s 50% share of their business for $426,000 within a year. Additionally the business would issue a promissory note for the $426,000. The agreement also included the following guaranty: “Wayne specifically… does hereby guarantee all obligations that Wildcat Petroleum is assuming that are due and payable to Jody.” Neither Wayne nor the business ever paid Jody and she sued only Wayne for enforcement. Wayne claimed, among other things, that the obligation was unenforceable. The trial court entered summary judgment in favor of Jody which was appealed by  Wayne. Wayne’s only issue on appeal was that the business should have been joined as a party to the suit.

Whether or not the business should have been a party to the suit depends on what type of guaranty was in the agreement. The Court of Appeals noted there are two types of guaranty under Texas law: a guaranty of collection (or a conditional guaranty) and a guaranty of payment (or unconditional guaranty). With a guaranty of collection, the guarantor agrees to pay if the debt cannot be collected from the primary obligor. Generally, in a guaranty of collection suit, the principal debtor must be joined as a party.

With a guaranty of payment suit, however, the guarantor is obligated to pay the debt when due if the debtor does not. Because the only condition precedent to enforce a guaranty of payment is default by the principal debtor, the principal debtor is not a necessary party. A guaranty is deemed to be a guaranty of payment unless the agreement specifies otherwise.

In his brief, Wayne acknowledged that the guaranty language of the agreement indicated an unconditional guaranty of something, though it was unclear what: the business’s obligation to pay or the business’s obligation to issue a promissory note. For this reason, Wayne argued the guaranty was conditional, making the business a necessary party.

In response, Jody argued, and the Court of Appeals agreed, that Wayne clearly and unconditionally guaranteed payment of $426,000, making the guaranty one of payment, rendering the business an unnecessary party.

In re M.M.M. & S.H.M.

On June 5, 2015, the Texas Supreme Court issued its notice denying the petition for review of In re M.M.M. & S.H.M., a controversial case from the 14th Court of Appeals. This means, barring a motion for reconsideration or petition for U.S. Supreme Court review, the 14th’s published opinion In re M.M.M. and S.H.M., No. 14-12-01145-CV (Tex.App.–Houston [14th Dist.] Apr. 10, 2014, pet. denied) will stand as final. The case garnered a lot of media attention in 2012. In this case, Appellant Marvin McMurrey III sought a declaratory judgment that Appellee Cindy Close did not have a parental relationship with or standing to pursue rights to the children the subject of the suit. Close was impregnated with McMurrey’s sperm and an unknown donor’s eggs via assisted reproductive technology. McMurrey asserted at trial that Close was merely the surrogate who agreed to carry the children for Mr. McMurrey and his partner, but there was no written agreement. McMurrey and Close disputed what the postpartum plan was. Close stated the plan was for them to co-parent the children, but McMurrey alleged Close had agreed to carry the children but play no further role in the children’s lives after birth. Both parties moved for summary judgment. The trial court (the 247th Judicial District Court of Harris County) found Close was the mother of the children as a matter of law and implicitly denied McMurrey’s request for a declaratory judgment declaring she had no parental relationship to the children.  Under Chapter 160 of the Texas Family Code, a mother-child relationship is established when a woman gives birth to the child. Tex. Fam. Code. sec. 160.201(a)(1). There is no requirement the mother be the genetic parent of the child. McMurrey argued giving birth merely created a presumption of maternity which would be rebutted with genetic evidence, as is the case with paternity under section 160.201(b). To cut to the chase, the Court of Appeals disagreed but the entire opinion is worth a read. The issue of maternity has been quite a saga but hopefully it has met its final conclusion at long last, though it would appear that the remainder of the suit will now resume in trial court, including various torts.

Opinions, June 16, 2015

The Fourteenth Court of Appeals released its published opinion in In re A.L.H., Cause Nos. 14-14-01029-CV and 14-104-01030-CV (Tex.App.–Houston [14th Dist.] Jun. 16, 2015) in which the Court of Appeals affirmed the termination of a mother’s parental rights but reversed as to the father. The mother had executed a notarized affidavit of relinquishment of her parental rights which stated termination would be in the best interest of the child. On appeal, she asserted the affidavit was executed involuntarily, but presented no evidence in support of that claim. Her issues were overruled. The father asserted that the evidence was legally and factually insufficient to support the trial court’s judgment of termination on either of the two statutory grounds for termination, i.e. Tex. Fam. Code sec. 161.001(1)((D) (placing the child in dangerous conditions) and (N)(constructive abandonment). As to endangerment, the Court of Appeals found DFPS presented no evidence of the child’s environment at the time of removal or that the father had knowledge of the child’s environment. Constructive abandonment requires clear and convincing evidence that the child has been in state custody for six months and three necessary elements (“(1) the Department made reasonable efforts to return the child to the parent; (2) the parent has not regularly visited or maintained significant contact with the child; and (3) the parent has demonstrated an inability to provide the child with a safe environment.”). If the evidence is legally insufficient on any of the elements, the termination finding cannot be sustained. The Court of Appeals found that the evidence presented at trial was insufficient to support the trial court’s conclusion on the first element, that DFPS took reasonable efforts to return the child to the father. At trial, the caseworker testified that the father did not visit with the child throughout the case, did not request visitation, and did not provide anything for the child’s care or support. The father did not comply with court orders to establish paternity and did not appear at trial or any of the hearings. DFPS argued that its actions to serve the father with notice of the suit and the trial court’s orders to establish the father’s paternity were evidence of the department’s reasonable efforts. The Court of Appeals disagreed. Additionally, the department argues its efforts to place the child with an aunt in Arizona constituted reasonable efforts, but the record reflected the aunt testified she would not allow the parents to have any contact with the child, which the Court of Appeals found negated the department’s argument. The termination of the father’s rights was reversed.

Opinions, June 4, 2015

The Fourteenth Court of Appeals issued its memorandum opinion in In re J.J.G. and D.J.T-B., No. 14-15-00094-CV (Tex.App.–Houston [14th Dist.] Jun. 4, 2015) in which it affirmed the termination of the mother’s rights to her children. In this case, an 11-week-old child was admitted to the hospital with what turned out to be shaken baby syndrome; the children were taken into the state’s care and the father was incarcerated as a result. Only the mother contested termination. After the state became involved, it established a family service plan with the mother which required the mother to, inter alia, stay drug free, maintain stable employment and housing, and attend parenting classes, all of which she subsequently either failed to do or failed to provide proof of having done. During the mother’s family service plan period, she evidently tested positive for marijuana and cocaine but she claimed the positive cocaine result was because someone laced her marijuana without her knowledge. At trial, the mother testified that she had not used drugs 26 days before trial, was trained to become a dental assistant and would be able to get a job as such after a four-month externship. She also testified that if the state extended her case she would get treatment for addiction. The trial court terminated her rights. On appeal, the mother argued that her marijuana use should be viewed as a lesser offense, when compared to other illegal drugs, because other states have legalized marijuana use. The court of appeals disagreed and overruled the mother’s first issue. On her second issue, the mother argued the evidence was factually insufficient to support a finding that termination was in the best interest of the children. The court of appeals marshaled all the negative evidence against the mother and overruled her second issue.

Opinions, June 2, 2015

The First Court of Appeals has released its concise memorandum opinion in Roberts v. Roberts, No. 01-15-0024-CV (Tex.App.–Houston [1st Dist.], Jun. 2, 2015) which clocks in at about 400 words. A default divorce was entered against appellant even though the proof of service had not been on file for at least ten days. Reversed and remanded.