Opinions, August 27, 2015: Back to School Special

There’s been a dearth of family law opinions recently. Until today. Today the First District Court of Appeals released one published opinion and three memorandum opinions and the Fourteenth released one. Big day. And it was a big day for Janice Berg and Daniel Lemkuil, as two of the First District’s opinions were victories for them. For those keeping score, this is actually the second time Lemkuil and Berg have had two Ws on the same day since I started this blog (Perez v. Williams and Rawls v. Rawls).

First, the published opinion because it is one of the more interesting appellate decisions I’ve read since I started blogging. In Perez v. Williams, No. 01-14-00504-CV, Sandra Perez alleged she had a common-law/informal marriage with the appellee, Brian Williams. Perez and Williams began living together in May 2010, even though Perez was still married to her previous husband. Perez’s divorce became final in November 2010. Perez and Williams’ child was born in October 2011. In January 2013 Brian filed a SAPCR. Perez answered and filed her counterpetition for divorce, alleging the parties were married on or about June 2010.

Williams moved for summary judgment on two issues: whether he should be adjudicated the father of the child and whether there was an informal marriage. In her response, Perez argued that the parties were informally married as early as January 2011. As evidence in support, she submitted the child’s birth certificate listing Williams as the father, a document upon which Williams listed Perez as “relative for contact purposes,” copies of greeting cards calling her “wife,” and photographs of her “wedding rings.” The trial court granted Williams’ summary judgment on both counts, finding the parties weren’t married but Williams was the father of the child.

A bench trial on conservatorship and child support was held in on February 6, 2014. Williams testified that he was the child’s primary caregiver. He also testified that he invited Perez and her two teenaged boys to live with him in spring 2010, but he had to ask the eldest to leave the house because he had been physically violent to Williams. Williams also testified Perez had been physically violent to him repeatedly, including once when she threatened him with a knife which resulted in Perez being charged with deadly conduct. Around Christmas 2012, she, according to Williams, threw over a Christmas tree, which resulted in him filing the SAPCR and asking her to leave, though after she left she would periodically return. He finally changed the locks.

With regards to the child, Williams testified that he believed Perez loved the child but was unnecessarily violent with the child; that Perez threatened to take the child to the Dominican Republic where she was born and has family; and that Perez had been violent with her own son, as evidenced by an audio recording.

Additionally, Williams testified he purchased a hair salon for Perez where all manner of salacious things happened. Allegedly she told him she rented out rooms in the back where people would provide massages and sexual services; that she was selling stolen items including clothing; and that drug deals had happened there. Internet advertisements for massage services and “adult entertainment” showing Perez in revealing clothing were entered into evidence and Williams testified Perez said she had an “entertainer license” issued by “HPD Vice Division.”

Perez testified that Williams pressured her to get an abortion and that she still owned the salon and that she knew at one point a young lady was doing massages to lose weight [what?] at her salon and that she asked the woman to leave because she didn’t think she had a license. She testified she drove a Range Rover Williams had given her until Williams had police recover it. She testified she attempted to visit the child many times but Williams would not let her see her. Perez testified that Williams had been violent with her on numerous occasions. She admitted that Williams had never been arrested on claims of violence against her and that only she had been arrested for claims of violence against him.

Perez also testified that Williams told her he had supervised visitation with his three children from his previous wife, Finn, and that he had to see a psychologist. On cross examination she conceded that she had not seen any court orders from his custody dispute with Finn and that Williams had told her that the visitation and family counseling arrangements were part of Williams’ agreement with Finn. Perez admitted that she had met with Finn and Finn’s lawyers and that Finn’s lawyers had offered her “money in this case to prolong it to affect that case” but she did not accept it.

Williams testified that it was incorrect that his visitation with his children with Finn was required to be supervised and that he had never been to a psychologist’s office to pick up his children with Finn.

In April 2014, the trial court declared Williams and Perez JMCs, with Williams as primary. Perez was a granted a step up to SPO and ordered her to pay child support of $195.69/mo. The trial court denied Perez’s motion for new trial and Perez appealed.

Perez challenged the summary judgment ruling on informal marriage. But at the trial court level, she didn’t file her response to Williams’ MSJ until the day before the hearing which was untimely. The summary judgment was upheld for that reason. This raises the interesting question of what would have happened had the issue been fully litigated, but it was not meant to be.

Another of Perez’s challenges was to the trial court’s denial of her motion to substitute legal counsel during the trial. A motion had supposedly not been filed until the day of trial the request was made. The Court of Appeals noted no motion appeared in the record. Because there was no motion in the record, the Court of Appeals overruled Perez on the issue.

Perez’s third, fifth, and sixth issues concerned evidentiary rulings of the trial court. In her third issue, Perez argued the trial court erred by refusing to admit copies of court documents relating to Williams’ other judicial proceedings “pursuant to the doctrine of judicial notice,” including two motions and a Rule 11 agreement. For numerous reasons (the copies were not certified, relevance, two of the documents were motions and not final orders, etc.), the trial court did not err by refusing to admit them. As to her fifth issue, Perez offered photographs depicting bruises she alleged she received from Williams. Williams objected that the foundation was improper and Perez had not produced the photos in discovery. Perez could not prove they had been produced. The Court of Appeals overruled Perez’s issue. As for her sixth issue, Perez’s attorney asked Williams if he had ever seen a psychologist, but Williams objected on the grounds there was no motion on file to request any kind of psychiatric care or examination and the trial court sustained the objection. Perez did not make an offer of proof. Perez thus failed to establish the excluded testimony was controlling on a material issue dispositive of the case and was not cumulative or that the trial court’s ruling probably caused the rendition of an improper judgment.

In her fourth issue, Perez argued the trial court erred in refusing to determine Williams gifted the Range Rover to Perez. She testified that he gave the car to her and told her it was a present and that it was hers. But she also testified that Williams had asked her to return it multiple times and sent a certified letter asking for it back before sending the police to get it. The title listing Williams as the owner was admitted into evidence. The Court of Appeals held the ownership of the vehicle was not at issue at trial, as only child support and conservatorship were.

Finally, in her seventh issue, Perez argued the trial court erred in awarding primary JMC to Williams. After reciting much of the evidence above, the Court of Appeals found the trial court did not err in finding Williams provided a stable environment and reliable transportation, whereas the evidence showed Perez had a history of violent confrontations and employment in adult entertainment. Based on the record, the Court of Appeals found the trial court did not abuse its discretion.

In Rawls v. Rawls, No. 01-13-00568-CV, Mary and Jeffrey Rawls divorced in 2008. Their divorce decree incorporated their agreement to divide bonuses Jeffrey would be paid in 2008 and the following six years. Mary later sued to recover her share of bonus compensation for the years 2008-2011. She also filed a bill of review to set aside the 2008 decree and a petition for enforcement, seeking Jeffrey be held in contempt for violating the decree. The trial court granted Jeffrey’s partial MSJ, held a bench trial on the remaining claims and entered a final judgment denying all of Mary’s requested relief.

Mary asserted four issues on appeal, arguing the trial court’s judgment should be reversed. Jeffrey did not file an appellate brief. The Court of Appeals affirmed the trial court with respect to Mary’s breach of fiduciary duty claims and Count 2, 7, and 8 of Mary’s enforcement petition. In all other respects, however, the judgment was reversed and remanded for new trial.

The parties entered into a collaborative law agreement requiring them to disclose “the nature, extent, value of–and all developments affecting –the parties’ income, assets and liabilities.” During the negotiations, before the decree was signed, Jeffrey received a job offer which he did not disclose to Mary. The Court of Appeals found the trial should not have granted Jeffrey’s MSJ on Mary’s claims for breach of contract and fraud because she raised a fact issue as to those claims.

In her second, third, and fourth issues, she argued the trial court erroneously treated the partial summary judgment as dispositive of her bill of review, petition for post-divorce division of undisclosed property, and Counts 1, 3, 4, 5, 6, and 10 of the enforcement petition which were based on Jeffrey’s non-disclosure. The Court of Appeals agreed because it was error for the trial court to treat the MSJ as dispositive of any unaddressed claim.

In In re M.B.M. and J.J.M., No. 01-015-00256-CV, the court of appeals affirmed the termination of the mother’s parental rights.  It turns out that the mother had her parental rights to her previous four children terminated, based on her failure to comply with the court-ordered rehabilitation plan and using controlled substances. In the present case, the mother failed to complete the service plan given to her by DFPS, she missed visits with her children during the case often because she was incarcerated, she never called DFPS to ask how they were doing, and one of the children had made an outcry of sexual abuse which DFPS found credible. Additionally, the mother’s drug-related criminal history was extensive. The Court of Appeals found the evidence was legally and factually sufficient.

In In re M.M.-Y.P., the First District affirmed the termination of a mother’s parental rights to her daughter. Mother tested positive for cocaine when she gave birth to the daughter. The child was placed with friends of the Mother. About a week later, she tested positive for “all drugs.” The daughter was later placed in foster care. DFPS filed an original petition for conservatorship and termination of parental rights. The family service plan emphasized the mother’s strengths, including that she is a good mother, has a clean house, attends college, is caring and ambitious and has her own transportation. DFPS expressed concern about her drug use and the father’s past family violence, drug use, and noncompliance with his own FSP. The mother completed some portions of her plan, including therapy and scheduled visits with the child. While DFPS acknowledged there was a bond between the mother and daughter, the mother failed to provide sufficient verification of income to establish financial responsibility. Later on, DFPS noted concerns that there was male clothing in her home and that the home had become less than clean. The mother completed all of her plan requirements except maintaining a drug free lifestyle. She tested positive for various substances four times between February and November.

On appeal, the mother did not challenge the legal or factual sufficiency of the trial court’s findings concerning predicate conditions under Section 161.001(b)(1)(E) of the Texas Family Code. Rather, her single challenge was to the sufficiency of the evidence supporting the trial court’s determination it was in the child’s best interests to have the mother’s parental rights terminated. The Court of Appeals reviewed the Holley factors and, long story short, based primarily on the mother’s continued drug use (and the evidence of the father’s drug use, presence, and domestic violence) the termination was affirmed.

The Fourteenth’s only opinion today was its memorandum opinion in In re O.Z.O., No. 14-14-00768-CV. After a jury trial, the parents McClairne (“Mother”) and Oladunni (“Father”) were named JMCs with Father as primary. The Mother appealed and the Court of Appeals affirmed.

In her first five issues, the Mother complained the trial court failed to declare a mistrial after the jury heard hearsay testimony from the Father about an alleged act of child abuse by the Mother. The Father testified that he got temporary custody of the child when CPS contacted him after “my son’s mom was trying to drown him.” The remark was struck from the record and the jury was instructed to disregard it. The Mother argues that striking the comment and instructing the jury to disregard it was insufficient to remove the prejudice of the Father’s statement. The Court of Appeals did not reach the merits of the claim because the Mother did not preserve the error. The Mother did not move for a mistrial and obtain an adverse ruling. Just like that, issues one through five were overruled.

In her sixth issue, the Mother argued the trial court erred when it did not submit one of her proposed jury questions. The record showed, however, that the Mother’s attorney agreed to the trial court’s emendations of the question, did not object, and did not bring any issues regarding the question to the court’s attention. The issue was overruled.

Opinions, August 25, 2015

The Fourteenth Court of Appeals released its published opinion in Allen v. Allen, No. 14-14-00426-CV (Tex.App.–Houston [14th Dist.] Aug. 25, 2015) this morning, affirming the trial court’s designation of father Joshua Allen as the parent with the exclusive right to determine the primary residence of the two children of the marriage.

Jessica and Joshua married in 2007 and separated in August 2012. Jessica and the two children moved in with her mother. On August 6, 2012, the parties signed an agreement under which Jessica would have primary conservatorship of the children and Joshua would not be obligated to pay child support. Jessica filed for divorce in December 2012; Joshua counterpetitioned. Agreed temporary orders were entered in January 2013 providing for joint managing conservatorhsip of the children, designating Jessica as the conservator with the right to determine the children’s primary residence and requiring Joshua to pay child support.

Final trial was held in December 2013 which resulted in a decree in which the trial court named both parents as JMCs, awarded Joshua the right to determine the children’s primary residence and ordered Jessica to pay child support. At trial, Joshua was represented by counsel, Jessica appeared pro se, and a GAL represented the interests of the children.

At trial, Joshua testified to several instances of Jessica impeding his access to the children. Additionally, Jessica made several reports to CPS of sexual or physical abuse of one of the children while in Joshua’s custody. One CPS investigator testified that she investigated the reports and ruled out any abuse and, further, both parents’ residences were appropriate places for the children to live. A second CPS investigator testified she investigated two allegations of sexual abuse and one allegation of negligent supervision but the results of the investigation were inconclusive.

Joshua testified that he was concerned Jessica would continue to interfere with his possession if the children continued to live with her, based on her past conduct. The GAL testified she believed both parents were capable of taking care of the children but was concerned that Jessica was “a big wedge” between Joshua and the children and seemed intent on continuing her feud with him.

Jessica’s sole issue on appeal is her allegation the trial court abused its discretion in granting Joshua the right to establish the children’s primary residence. In support, she argued that she had primary custody of the children before the entry of the final decree, that Joshua signed the pre-suit agreement giving her that right, and that she reported abuse to the authorities. Regarding the pre-suit agreement, the Court of Appeals noted that parties to a divorce proceeding may enter a written agreement concerning conservatorship and possession of a child but one parent may revoke agreement before the trial court enters its final orders. And when one party revokes consent, the prior agreement on its own is no longer a proper basis for such orders. Additionally, even if Joshua had not withdrawn his consent, the trial court was not bound to follow the agreement unless to do so would be in the children’s best interest.

At the conclusion of trial, the trial judge emphasized that Jessica’s alienating behavior caused the court to wonder if Jessica would ever allow Joshua to have a good relationship with him. Because there was evidence to support the trial court’s determination that designating Joshua as primary was in the children’s best interest, the trial court did not abuse its discretion.

Opinions, August 18, 2015

The Fourteenth Court of Appeals issued its memorandum opinion in Germain v. Germain, No. 14-14-00341-CV (Tex.App.–Houston [14th Dist.] Aug. 18, 2015) this morning. The trial court granted the wife’s motion for protective order after the wife alleged the husband committed family violence and that he would likely commit family violence in the future. The husband appealed. In his first issue, he argued the evidence was legally and factually insufficient. The Court of Appeals disagreed and affirmed the trial court.

In his second issue, the husband argued the trial court abused its discretion in preventing cross-examination into the wife’s immigration status. The husband argued that the federal Violence Against Women Act provided a motive for the wife to complain because the act allows the abused spouse of a U.S. citizen to apply for an immigration visa. But the husband’s counsel failed to make an offer of proof to preserve the error for appellate review. Further, the wife did testify concerning the VAWA, stating she had never heard of it and her request for a protective order was not driven by immigration considerations.

In his third issue, the husband argued  that he should have been granted the continuance he requested because it is “incredibly unfair and constitutionally repugnant to expect him in 48 hours, with no discovery right to adequately cross-examine and refute the claims” of the wife. The Court of Appeals held the supposed error was not preserved as the record did not contain a motion for continuance. Additionally, the husband failed to provide any authority addressing discovery in protective order proceedings and the record did not contain any request by the husband to obtain discovery or modify the default deadlines. Finally, the Court of Appeals noted the intentionally abbreviated nature of protective order hearings as provided in the Texas Family Code, noting that the Code requires the defendant receive notice and a hearing, which the husband received.

Opinions, August 13, 2015

Today, the Fourteenth Court of Appeals released its Memorandum Opinion in Vasudevan v. Vasudevan, No. 14-14-00765-CV (Tex.App.–Houston [14th Dist.] Aug. 13, 2014). The parties were married in 1992 and divorced after a bench trial in May 2014 on the grounds of insupportability and cruelty. The husband filed a motion for new trial which was denied after hearing. The husband asserted seven errors on appeal.

Characterization: The husband argued the trial court mischaracterized the wife’s separate property, a Chase business account and an interest in a limited partnership. The trial court determined that the wife successfully overcame the community property presumption by establishing she inherited the funds in the business account and then used a portion of those funds to purchase the partnership interest. The husband’s characterization challenge was overruled.

Evidentiary Rulings: The husband challenged the trial court’s exclusion of evidence that the wife supposedly concealed gold bars and coins. The evidence offered by the husband in support was inadmissible for various reasons (it was either hearsay or unauthenticated).  The husband also challenged the trial court’s exclusion of other evidence, but inadequately briefed the issue, so the challenge was denied.

Trial Judge Bias: The husband alleged the trial judge was biased but did not file a motion to recuse, nor did he identify any evidence the judge should have been disqualified.

Division of Community Property: The husband requested that the community be divided unequally, with him receiving 60%. But he did not request findings of fact and conclusions of law. The trial court made oral statements on the record indicating the values the court assigned to the certain assets, but those statements do not constitute findings of fact, nor do the respective inventories filed by the parties. Also, whether or not the wife received a larger share than the husband was disputed. Consequently, it was impossible for the Court of Appeals to determine if the trial court abused its discretion in making the division.

Denial of Motion for New Trial: The husband’s motion did not state specifically his grounds for the motion. At the hearing, the husband alleged the trial court abused its discretion by granting the divorce on the grounds of cruelty because, according to him, there was no evidence he was cruel to the wife. The Court of Appeals found the evidence was legally and factually sufficient to support the divorce being granted on fault grounds as the wife provided uncontroverted evidence the husband was physically abusive during the marriage and threatened to burn down the house with her and their daughter inside.

The trial court was affirmed on all counts.

Opinions, August 11, 2015

The First District Court of Appeals has released its memorandum opinion this morning in Blank v. Nuszen, No. 01-013-01061-CV (Tex.App.–Houston [1st Dist.] Aug. 11, 2015). The Court of Appeals dismissed the case on the grounds of mootness.

The procedural history is key to the ruling. The mother and father were divorced in 2009 and both were appointed JMCs of the five children. In 2010, the father filed a petition to modify, seeking SMC of the children. The mother filed a counterpetition, also seeking SMC. After a jury trial, on November 20, 2013, the trial court entered a final order appointing father as SMC, the mother as PC, and ordering mother to pay child support.

Mother then filed an appeal contending the trial erred in denying a motion for continuance and a so-called “motion to strike the jury venire,” excluding expert testimony, granting a modification without a showing of changed circumstances and denying her motion for new trial.

During the pendency of the appeal, the father filed an emergency petition to modify conservatorship, asserting material and substantial changes since the last order. On April 23, 2015, the trial court issued a default, again appointing father SMC but modifying mother’s access and child support obligations. Five days later, on April 28, the mother filed a motion for new trial, but did not file an appeal from the default order. Instead, on July 17, 2015, she filed a new petition to modify conservatorship.

On May 15, 2015, the Court of Appeals notified the mother of its intent to dismiss unless the mother could establish the appellate court’s jurisdiction.

The mother asserted that the filing of her notice of appeal divested the trial court of its jurisdiction to modify its November 20, 2013 order. The Court of Appeals disagreed, citing the family law trial court’s continuing, exclusive jurisdiction over prior orders affecting the parent-child relationship. The pendency of the appeal did not deprive the trial court of jurisdiction to modify its order.

The mother also asserted that there was a continuing injury that the Court of Appeals could address. The Court of Appeals disagreed, stating that even if she prevailed on her appeal of the November 20, 2013 order, she would still be subject to the April 23, 2015 default order.

Finally, the mother argued that her appeal met one of the exceptions to the mootness doctrine, specifically the “capable of repetition, yet evading review” exception. That exception applies to rare circumstances where the challenged act is so short the appellant can’t obtain review before the issue becomes moot and there is a reasonable expectation that the same action will occur again again if the issue is not considered by the court. Because the mother had not demonstrated that she could not obtain review of the new order, the Court of Appeals denied the “capable of repetition” argument.