Opinions, July 23, 2015

Three opinions this morning to discuss: one from the First District Court of Appeals and two from the Fourteenth (the second of which is a published opinion on the proper application of the Family Code’s provisions for guideline support and adult disabled child support).

This morning, the First Court of Appeals released its memorandum opinion in In re D.L.D. Jr., L.L.S., J.J.S. and H.N.S., No. 01-15-00160-CV (Tex.App.–Houston [1st Dist.] Jul. 23, 2015) in which the Court of Appeals affirmed the termination of the mother’s relationship to her four children. On appeal, the mother presented two issues: 1) the evidence was not legally or factually sufficient and 2) the trial court engaged in misconduct during trial. Both issues were unsurprisingly overruled, but the second issue was certainly more colorful than most termination opinions.

The Court of Appeals reviewed the record which established: the mother was living in a homeless shelter with the four children; this was their second shelter after they were asked to leave the first shelter because of fights between the mother and her sister (who also lived in homeless shelters); the second shelter would be asking the mother and her children to leave after too many violations of the second shelter’s policies; the mother had no place to take the children; the DFPS was appointed temporary managing conservator and placed the children in foster care; the mother agreed to follow a family service plan; two of the children had medical needs which the mother had not attended to; the mother was both the instigator and victim of a cycle of domestic violence with her sister; while the case was pending the mother failed to obtain housing or employment, tested positive for cocaine, failed to undergo scheduled drug screening, was convicted of prostitution, did not attend visits with her children, and did not keep in touch with her caseworker. The oldest child, D.L.D., began living with his father and was doing well; the three other children were doing well in their foster homes. The Court of Appeals upheld the termination.

In her second issue, the mother accused the trial court of misconduct. In her first example of alleged misconduct, the mother argued the trial court judge violated Canon 3B(3) of the Texas Code of Judicial Conduct which states the judge must require order and decorum in proceedings before the judge. The mother asserted the judge violated this rule based on an exchange during cross-examination of D.L.D.’s father, who is a manager of a Burger King in Louisiana:

[Unknown father’s counsel:] Have you tried the Texas Double Whopper yet?
[Children’s Attorney Ad Litem:] Objection rel—asked and answered actually.
[Unknown father’s counsel:] No. Not since—November he may have tried it already. Pass the witness.
THE COURT: I’m going to leave you—well, no. You can go.

This, the mother asserted, was evidence of how the trial court allowed “silliness to pervade a very serious proceeding.” The Court of Appeals disagreed, finding the episode was a quick and “self-limiting” blip. Still, the mother does have a point that this is a goofy question to ask and, surprisingly, it was already asked and answered in the prior hearing. This attorney must have a thing for Double Whoppers.

Next the mother alleged the judge “intentionally disrespected” her based on the following:

Q. Have you ever been in jail?
A. No.
Q. And how often do you prostitute?
A. That was only one time.
THE COURT: Well, that’s bad luck, huh?
[Mother]: Uh-huh.

This comment, the mother asserted, “lacked sensitivity and dignity” and was “insensitive and disrespectful” to her. The Court of Appeals noted that the transcript does not indicate the judge’s tone or facial expression and, moreover, since it was a bench trial, there was no jury to hear it even if it had been improperly flippant.

The mother also alleged that the judge was improperly prejudiced based on the following:

Q. And you would agree with me that you still don’t have a safe place to live as to today?
A. Okay. I was getting to that.
[The Department’s counsel]: Objection. Nonresponse.
[Mother]: Well, can I just — I do have paperwork.
[Mother]: I do have —
[the Department’s counsel]: Shh. Listen.
[Mother]: — paperwork.
THE COURT: Listen.
[Mother]: And I do have —
THE COURT: Ma’am, listen to me.
[Mother]: Y’all not giving me —
THE COURT: Ma’am. Listen to me.
[Mother]: Yes, sir. Yes, sir.
THE COURT: Okay? Just —
[Mother]: Yes, sir.
THE COURT: — answer the —
[Mother]: Yes, sir. Yes, sir. Yes, sir. I just want to show her that I do have —
THE COURT: Shut up.
[Mother]: Oh, help me Jesus.
THE COURT: Just answer her question. Your attorney will — [Mother]: I’m not —
THE COURT: Listen to me. Your attorney will have an opportunity to ask you questions. That’s how this game is placed [sic]. Okay? So, if she asks you if you have a safe and stable place to stay right now, the answer is yes or no.
A. No.
THE COURT: There you go. You can explain by way of your attorney when it’s your turn. Okay?

The Court of Appeals found that this was within the court’s discretion and that it was only after asking the mother to be quiet six times did the court tell the woman to shut up.

Finally, the Court of Appeals noted that none of the complained-of conduct likely caused the rendition of an improper judgment.

Moving on to the Fourteenth’s opinions, the Fourteenth Court of Appeals released one memorandum opinion in Reynolds v. Reynolds, No. 14-14-00080-CV (Tex.App.–Houston [14th] Jul. 23, 2015) and its published opinion in In re JMW, No. 14-14-00135-CV (Tex.App.–Houston [14th Dist] Jul. 23, 2015).

The Reynolds case is just the latest iteration in what appears to be a near-decade-long saga. The parties divorced in 2008. Wilma Reynolds appealed the division of the marital estate but the Court of Appeals affirmed the trial court’s division in 2010 because, it concluded, Wilma was estopped from challenging the decree on appeal as a result of her acceptance of the benefits of the property division. Three years later, Wilma filed a bill of review seeking to revisit the decree. Specifically, she alleged that David Reynolds introduced false evidence and testimony regarding the value of the community estate. The trial court denied the bill of review (as did a visiting judge presiding over Wilma’s motion for reconsideration).

On appeal, Wilma alleged two issues but the Court of Appeals only addressed the second one because it was dispositive: the trial court abused its discretion by denying the bill of review when she presented a prima facie case. Because a party cannot use a bill of review action as an additional remedy after losing an appeal, Wilma’s bill of review was properly denied.

Finally, the Fourteenth released a published opinion in In re J.M.W. In this case, the mother sought support for an allegedly adult disabled child. The son was born in October 1985; the mother and father divorced in January 1987. The father stopped providing support for the son once he graduated from high school at age 19. The son has lived with the mother and has little contact with his father. The son was diagnosed with ADHD and has been violent to his mother and has destroyed things in her house. He has had only one job, at McDonald’s for six months, but he was fired because of his angry outbursts. He is now employed in a workshop program which pays him $758 annually. The mother sought and the son now receives supplemental social security and medicaid benefits ($473.24/mo.) though his necessary monthly expenses are almost $1,000 more than his income. When the son was 25, in April 2011, the mother filed suit seeking support form the father. The psychiatrist appointed in the case stated the son is incapable of self-support and living independently and recommended that the son be transferred to a residential placement. The mother is a special education teacher who makes $1,620/mo. The father’s income in sales was $4,000/mo. plus 25% commission; his and his current wife’s annual income was, on average, $150,000.

On appeal, the father challenged the child support award, arguing the trial court: (1) disregarded the child support guidelines, (2) improperly construed section 154.306 of the Texas Family Code, (3) included or substantially considered the income from Father’s new spouse, and (4) grossly exceeded the guidelines. Father also argues that the trial court abused its discretion by: (5) refusing to reopen the evidence to include his premarital agreement; (6) failing to make required statutory findings; and (7) awarding attorney’s fees, considering all the other errors.

The Court of Appeals agreed that the trial court improperly calculated the award and sustained the father’s first, second, and sixth issues. Specifically, the mother argued that the trial court must look exclusively to the provisions of Tex. Fam. Code 154.306 when awarding support for an adult disabled child. The father argued that the trial court abused its discretion by refusing to consider and apply general provisions from other parts of the code. After a lengthy discussion concerning other provisions of Chapter 154 and the plain reading of the statutes, The Court of Appeals agreed with the father, finding the trial court abused its discretion by failing to consider presumptive guideline support required by subchapter C of Chapter 154 of the code. Additionally, the father argued the trial court abused its discretion by not issuing findings under 154.130 upon request when the guidelines are not followed. The Court of Appeals agreed on that point as well, reversing and remanding the case for further child support calculation proceedings.

Because the third and fourth issues essentially challenged the sufficiency of the evidence supporting the judgment, the Court of Appeals did not reach these issues because the judgment was reversed for the above reasons.

As to the fifth issue, the father argued the trial court abused its discretion by not reopening the evidence to include the father’s 2002 premarital agreement with his current wife which segregated their incomes. The Court of Appeals disagreed, finding the father did not establish that the premarital agreement was unavailable to him at trial, and, moreover, the premarital agreement’s provisions segregating the spouses’ income would affect the application of the family code’s prohibition against including a spouse’s net resources for purposes of child support.


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