Opinions, October 27, 2015: Extension & Dissension

This is interesting. In In re Bowers, No. 14-15-00021-CV, Clinton Bowers filed his pro se appellate brief challenging the division of property in his divorce, after his brief deadline had been twice extended. The Court of Appeals issued an order finding his brief did not substantially comply with TRAP 38.1 and granting him 30 days to file a corrected brief. The day before the 30 days was up, Mr. Bowers filed a motion for extension which did not state a reason for the extension or the length of time requested.

The majority of the panel, Justices Jamison and Wise, denied the motion for extension and dismissed the appeal for want of prosecution. Justice McCally filed a dissent, arguing dismissing the appeal was an unwarranted death penalty sanction, Mr. Bowers was clearly trying to prosecute his appeal, and that the better course of action would be to set a date by which Mr. Bowers’ corrected brief was due. It just goes to show that failure to comply with what may seem like small procedural details can have very negative consequences, even for pro se litigants.

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Opinions, October 15, 2015

The First District Court of Appeals has released two memorandum opinions this morning, Plowman v. Ugalde, No. 01-14-00851-CV, a child support case, and In re M.A.B., IV, a parental rights termination case.

Philip Ugalde and Kori Plowman divorced in September 2012. Their decree specifically references and incorporates an Agreement Incident to Divorce (“AID”). Under the AID, Philip agreed to pay child support of $3,000/mo. The parents were both named managing conservators with Kori as primary and Philip being granted an expanded SPO.

At the time of the divorce, Philip was making $170,000 per annum. Eight months later, he left his job and was unemployed five months before obtaining employment at $75,000/yr which he held for seven months. Then he was unemployed for two months and then, in March 2014, he became employed at $125,000/yr. Somewhere in there, he filed a petition to modify his child support obligation. At the modification hearing, he testified that he had cashed in approximately $150,000.00 in retirement accounts to sustain himself in his periods of unemployment and meet his child support obligations.

At the hearing, Kori argued that Philip had failed to establish a material and substantial change in circumstances. The trial court found that Philip had established a material and substantial change and granted his motion to modify and ordered Philip to pay guideline support of $1,510/mo.

Kori appealed, asserting three issues: 1) the trial court abused its discretion by modifying the child support order without evidence of a material and substantial change; 2) the trial court abused its discretion when it failed to award her a money judgment for damages in the amount of the difference between what the father had agreed to pay and the amount the trial court was ordering him to pay subject to contempt (i.e., contract damages); and 3) the trial court’s refusal to award her contract damages based on the AID violated the open courts provision of the constitution.

On the first issue, the Court of Appeals noted that while not all temporary slumps in employment constitute a material and substantial change, Philip supplied legally and factually sufficient evidence to warrant the modification of the child support order.

On the second issue, Philip argued that Kori did not seek breach of contract damages in her live pleading and she had not appealed the trial court’s decision denying her trial amendment in which she sought to add a claim for breach of contract damages. The trial court had held that Kori’s pleading did not support the relief she was requesting. The Court of Appeals agreed that Kori did not appeal the denial of the trial amendment and could not prevail on an unpled claim for breach of contract damages.

With the second issue overruled, the Court of Appeals did not reach the third issue and the trial court was affirmed.

Opinions, October 13, 2015: The War of the Roses

Remember the movie/book The War of The Roses? We may have found the appellate version of that tale.

The Fourteenth Court of Appeals has released its memorandum opinion in In re Harrison, No. 14-15-00370-CV, a habeas corpus original proceeding out of the 311th. If you’re thinking to yourself, didn’t we just read about a habeas out of the 311th last week, well, points for memory and studious readership. In fact, the parties in today’s habeas are the same as the In re Harrison case from a week ago. In further fact, this appears to be just the latest installment in a long saga between the parties. If you run the trial court cause number through the TAMES search, you get seven appellate cases. Three of these were Connie Harrison’s and were dismissed earlier this year, but I did not blog about them because they are one-page dismissal orders. Connie’s luck has apparently turned, however, as today’s opinion is her second win in a week. But, as noted below, we have not seen the last of the Harrisons.

Clifford Harrison filed for divorce from Connie Harrison in October 2006. The parties were initially divorced in June 2010, but their decree was reversed on appeal in April 2012, the first of the seven appellate cases. Harrison v. Harrison, 367 S.W.3d 822 (Tex.App.–Houston [14th Dist.] 2012, pet. denied) (noting that Clifford is an attorney and Connie has a law degree but has never practiced law). The parties signed an MSA in January 2014. An Agreed Interim Order was signed on April 10, 2014. In August 2014, Clifford filed an enforcement motion seeking to have Connie held in contempt of these three documents.

Crucially, on October 16, 2014, during the hearing on the enforcement, while Connie was testifying to her defense, Clifford’s counsel moved for directed verdict on the grounds that Connie had not filed an answer or any affirmative defenses in response to the enforcement petition. The trial court granted the motion for directed verdict and denied Connie’s requests to continue her testimony.

On October 24, 2014, the trial court signed an Order of Enforcement by Contempt that: 1) found Connie in contempt of the (reversed) decree, the MSA, and the Agreed Interim Order; 2) ordered her to pay fines for some of the violations and approximately $25,000.00 in attorney’s fees and costs; and 3) suspended Connie’s commitment to jail contingent upon her compliance.

On December 9, 2014, Clifford moved to revoke the suspension. After a hearing on December 18, 2014, the trial court revoked the suspension of commitment and committed Connie to jail until the $25,000.00 in fees were paid.

On January 2, 2015, Connie was ordered released and ordered to pay the fees on an installment schedule. Connie was released on January 5.

On March 27, 2015, Clifford again moved to revoke the suspension of commitment, alleging Connie had not made installment payments. That same day, the court signed an order for Connie to pay the fees in agreed installments and for Connie to be released by agreement of the parties, but that agreement would be revoked if she failed to comply.

On April 10, 2015, the trial court found Connie had violated the March 27, 2015 order, and ordered Connie confined. On April 27, 2015, Connie filed a petition for writ of habeas corpus and on April 29, 2015, the Court of Appeals ordered Connie released upon posting of a $500 bond.

In its analysis, the Court of Appeals cut straight to the heart of the matter, finding the entire October 24, 2014 enforcement order void because the trial court improperly denied due process to Connie by granting the directed verdict and truncating Connie’s defense testimony. Civil contempt proceedings are quasi-criminal in nature and, under the Fifth Amendment, the contemnor is entitled to an opportunity to establish a defense by offering evidence and argument.  The Court of Appeals noted it was “not aware of any authority that requires a respondent to file an answer to a motion for enforcement and plead affirmative defenses to have the right to testify or to avoid a directed verdict.” Accordingly, the entire October 24, 2014 order was ruled void and, consequently, all the orders thereafter predicated on it.

Additionally, the Court of Appeals held the October 24, 2014 order was void to the extent the order held her in contempt for violation of the MSA because the trial court had not ordered the parties to comply with the terms of the MSA. The Interim Agreed Order incorporated the MSA but, the Court of Appeals held, merely incorporating the MSA into an order does not constitute command language sufficient to hold a party in contempt. Further, even if Connie was sufficiently commanded to comply with the terms of the MSA, several of the purported violations occurred before the trial court issued the Interim Agreed Order and an alleged contemnor cannot be held in contempt for actions taken before the entry of the order.

Finally, the Court of Appeals held the October 24, 2014 order void to the extent it held Connie in contempt for a violation of the decree which was reversed and thus rendered “a legal nullity” by the Court of Appeals in 2012.

Of the seven appellate cases in the Court of Appeals arising from this one divorce, six are now disposed of. The one remaining case, No. 14-15-00430-CV, is ongoing, with Connie’s brief due yesterday. I imagine, but cannot say for certain, this is an appeal of a decree finally entered in this matter earlier this year. If that’s right, it’ll mean almost nine years passed from Clifford’s filing of his original petition to the entry of the final decree (assuming it is not also set aside on appeal). Like I said, it looks like we haven’t seen the last of the Harrisons.

Opinions, October 8, 2015: Does Overpayment of Child Support = Theft?

Two interesting memorandum opinions this morning, one from the First District Court of Appeals and one from the Fourteenth.

In Crotts v. Healey, No. 01-15-00076-CV, Alan Crotts sued his local district attorney and assistant district attorney for refusing to prosecute a theft allegedly committed against him by the mother of his children. Frankly, it’s not a really a family law case and it doesn’t reach the novel assertion that overpayment of child support constitutes theft, but I think the facts and claims of the pro se appellant are interesting.

Jessica Cole, mother of Alan Crotts’ children, claimed she was owed child support. The OAG garnished almost $7,000 from Crotts’ income tax return. Crotts argued she was not entitled to it. In a suit for modification of the child support order, Crotts requested and was denied a $7,000 credit for the alleged overpayment. About a year later, Crotts reported Cole to the Sugar Land police for theft of the $7,000. Jeff Strange, assistant district attorney for Fort Bend County, informed the police he would not prosecute Cole for theft.

Naturally, Crotts filed a lawsuit against John F. Healey Jr., Fort Bend District Attorney and Strange for failure to prosecute Cole, alleging, interestingly, civil rights violations, breach of contract, and abuse of process. The trial court granted the DAs’ plea to the jurisdiction. Crotts appealed.

The COA’s analysis can be summed up in two words: Prosecutorial immunity.

In White v. White, No. 14-14-00593-CV, Barbara White appealed a final divorce decree and QDRO, challenging the trial court’s division of the marital estate and the trial court’s denial of Barbara’s request to reinstate her maiden name. The Court of Appeals sustained the division, but reversed and remanded on the name change issue. For those keeping score at home, this is the second name change case this week.

Barbara and James White were married in January 1995 and Barbara filed for divorce in November 2012. After trial in March 2014, the trial court signed a decree and QDRO on April 22, 2014.

James began working for the fire department in 1967 and began contributing to his retirement in March 1968. In 1998 he ceased regular employment and participated in the DROP program for ten years until, in 2008, he retired. At the time of divorce in 2014, his DROP account contained $640,000 of which the trial court declared $590,000 was his separate property. The trial court also ordered Barbara to receive $962.99/mo of James’ $8,700 monthly retirement payment.

In eight issues, Barbara challenged the decree. James filed a motion to dismiss the appeal, alleging Barbara was estopped from appealing the judgment because she voluntarily accepted the benefits thereof.

Generally, a party who accepts the benefits of a judgment is estopped from challenging the judgment on appeal. There are exceptions, all of which Barbara alleged here: 1) If the benefits were accepted due to economic necessity; 2) If the appellant accepts only that part of the judgment that the appellee concedes is unquestionably due to the appellant; and 3) If the benefit accepted was cash, the use of which would not prejudice appellee.

James contended Barbara was awarded and accepted numerous benefits under the decree, including substantial cash sums, several vehicles, and the monthly $962.99.

First Barbara contended she accepted the benefits under severe economic necessity. She provided an affidavit which stated her alleged monthly expenses (e.g. $748/mo. for utility expenses (!!)) but did not include any supporting documentation such as bills or invoices. The Court of Appeals found her claims of economic necessity conclusory. Further, she did not deny that she accepted at least one non-cash benefit–a 2001 Buick–which precluded her economic necessity exception argument. Finally, Barbara did not argue she couldn’t borrow money to meet her expenses or that she couldn’t have obtained money during the pendency of the appeal by requesting temporary support payments.

Under the entitlement exception, Barbara argued she accepted only benefits which James conceded she was entitled to. Specifically, she argued that the trial court awarded her property that James asked the court to award to her. The Court of Appeals found this misconstrued the exception. The exception applies “only if the appellant could not possibly be divested on remand of those assets already awarded.” Because James could argue on remand that Barbara should receive a smaller portion of these items, Barbara’s argument was overruled.

The cash benefit exception applies to relatively small cash benefits–in comparison to the total value of the community estate–because the trial court can take the amounts into account on remand.  As noted above, Barbara accepted non-cash benefits. But setting that aside, the Court of Appeals noted Barbara had taken control of the entire cash amount awarded to her which constituted about half of the community funds and had not provided proof that she had not spent the entire sum. Because she did not establish that James would not be prejudiced on remand, the Court of Appeals overruled her argument.

As for the name change issue, Barbara requested in her petition that her name be changed back to her maiden name. Inexplicably, the trial court denied the request on the record. The statute (Section 6.706(a) of the Texas Family Code) has command language and the Court of Appeals reversed that portion of the decree.

Opinions, October 6, 2015

This morning, the First District Court of Appeals released a published opinion regarding the name change of a child in Anderson v. Dainard, No. 01-15-00081-CV and the Fourteenth released its memorandum opinion in a habeas corpus proceeding, In re Harrison, No. 14-15-00545-CV.

In Anderson v. Dainard, out of the 308th, the parties had a brief romantic relationship. After the relationship ended, Anderson told Dainard she was pregnant. Dainard didn’t believe her and asked Anderson to consent to a paternity test, but Anderson did not. A.A.A. was born in April 2012 and Anderson gave her her own surname. Later, the OAG filed a parentage and child support action against Dainard. The trial court ordered testing and Dainard was established as the biological father.

Anderson and Dainard later agreed to temporary orders which named them as JMCs, with Anderson as primary and Dainard getting limited visitation with A.A.A. Eventually, the parties entered an MSA which resolved almost all issues and gave Dainard a step up to SPO. The one remaining issue that went to trial in July 2014: Dainard had requested the child’s last name be changed to his own.

The parents both testified as to why it was in the child’s best interest to have his or her surname. Dainard testified he regularly saw the child, but she lived primarily with Anderson and her having the same last name would establish a bond between them. He did state on cross examination that he would love the child regardless of what her name was.

Anderson testified that A.A.A. spent 90% of her time with Anderson during the first years of her life; that A.A.A. is aware of her full name; that A.A.A. is close to her grandmother who also uses the surname Anderson; that she would not change her own surname if she married; that keeping A.A.A.’s surname would be less confusing; and she conceded changing A.A.A.’s name to Dianard would not change A.A.A.’s relationship with Anderson. Anderson also testified that she is more committed to parenting and A.A.A.’s well-being than Dainard, alleging that Dainard had a habit of rescheduling or postponing visitation with his daughter for reasons having to do with this car, his pet, his work, etc. Dainard testified that he is meeting his obligations in supporting A.A.A. and regularly visits her.

The trial court granted the name change and Anderson appealed. Her sole issue on appeal is that the trial court abused its discretion by granting the name change because the evidence was not legally and factually sufficient.

The Court of Appeals reviewed the applicable law: Section 45.004 of the Texas Family Code permits a court to order a child’s name change “if the change is in the best interest of the child,” and, in the context of adjudicating parentage, section 160.636(e) permits a trial court to order the name change “[o]n request of a party and for good cause shown.”

As the Court of Appeals said, the best interest of the child is paramount and “the interests of the parents are irrelevant.” Relying on In re A.E.M., 455 S.W.3d 684, 690 (Tex.App.–Houston [1st Dist.] 2014, no pet.), the Court of Appeals listed the six non-exclusive factors to consider in name change cases:

(1) the name that would best avoid anxiety, embarrassment, inconvenience, confusion, or disruption for the child, which may include consideration of parental misconduct and the degree of community respect (or disrespect) associated with the name;
(2) the name that would best help the child’s associational identity within a family unit, which may include whether a change in name would positively or negatively affect the bond between the child and either parent or the parents’ families;
(3) assurances by the parent whose surname the child will bear that the parent will not change his or her surname at a later time;
(4) the length of time the child has used one surname and the level of identity the child has with the surname;
(5) the child’s preference, along with the age and maturity of the child; and
(6) whether either parent is motivated by concerns other than the child’s best interest—for example, an attempt to alienate the child from the other parent.

In its analysis, the Court of Appeals reviewed the evidence for both sides –which amounted to he said/she said–and essentially called it a coin flip: “The decision the trial court was called upon to make was a difficult one to be sure.” Citing the abuse of discretion standard, the Court of Appeals affirmed the trial court’s granting of the name change.

I have to admit, based solely on reading the opinion, I found the mother’s testimony more compelling, but as the Court of Appeals recognized, the trial court is the best judge of the credibility of the witnesses. A compelling argument on paper can be undone by poor, inconsistent, or unpersuasive presentation.

The Fourteenth’s memorandum decision in In re Harrison out of the 311th is interesting to me because I have a particular interest in habeas corpus cases. When I started this blog, I had set myself the goal of reading all the Texas appellate decisions which cited Slavin. That project has fallen by the wayside because of time constraints unfortunately.

The confinement of Relator as a result of her violation of the trial court’s orders was overruled for two reasons: 1) the commitment order did not include the provisions of the order for which enforcement was requested as required by Tex. Fam. Code 157.166; and 2) seven days was too long to wait for the trial court to issue a contempt order after the trial court’s confinement of the Relator and signing of the commitment order. Relator was ordered discharged from custody.

This just goes to show once again that enforcement by contempt requires a high level of detail and that a judgment on the merits in the movant’s favor can be undermined by any of a number of small, technical details. (I’m referring to the failure to quote or attach a copy of the order to the enforcement order. Arguably, spending seven days in confinement when three is impermissible is not a small, technical detail to the Relator.)

Opinions, October 1, 2015

The Fourteenth Court of Appeals released its published opinion in In re Martinez, No. 14-15-00429-CV, conditionally granting Relator Alba Martinez’s petition for writ of mandamus.

In March 2013 Milco Ivan Melgar filed a petition for divorce from Alba Martinez.  Ivan and Alba are from Honduras and their grasp of the English language, according to the Court of Appeals, is not expert. The case was DWOP’ed on November 18, 2013 by a visiting judge. Ivan moved to reinstate. The visiting judge heard the case on December 11, 2013–before it was reinstated. On December 17, 2013, twenty-nine days after signing the dismissal order, Judge Johnson signed a divorce decree which awarded the home to Alba. That same day, the trial court also signed an order reinstating the case. The next year, in September 2014, Ivan filed a petition to set aside the decree and requested the court modify the decree to award the home to him.

Alba filed a motion to enforce the decree by contempt, alleging Ivan refused to leave the home and had obstructed her efforts to take ownership of it. At the hearing on Alba’s motion for enforcement, Ivan’s attorney argued the decree stated that the case was heard on December 11, 2013, before the case was reinstated. The trial court requested briefing.

At the second hearing, the trial court found, based on the testimony, that the parties did not understand the decree at the time of prove up and that because no interpreter was present, the parties were not capable of providing any evidence to support a just and right division. The trial court signed an order on March 9, 2015 declaring the decree void. Ivan’s amended petition and request to modify were not ruled upon. Alba brought an original proceeding to set aside the March 9 order.

Long story short, the trial court’s March 9 order was declared void by the Court of Appeals because the trial court lacked plenary power in March 2015, fourteen months after the decree was signed. The order was not in the nature of a nunc pro tunc because there was far more than a clerical error at issue and none of the bases for a collateral attack on a judgment (lack of subject matter jurisdiction, lack of service, etc.) were present.

Tellingly, the Court of Appeals did plant a signpost with a footnote: “Our ruling today in no way prevents any party from seeking to set aside the Divorce Decree through an independent bill-of-review proceeding.”

Opinions, September 29, 2015

The Fourteenth Court of Appeals released its published opinion in Russell v. Russell, No. 14-13-01100-CV, which is actually the case’s second trip upstairs, making it Russell II. Disclosure: Appellee David Christopher Russell was represented by my estimable colleague Ashley V. Tomlinson.

Janna and Chris divorced in 2008. Janna filed an enforcement in 2009 which resulted in Russell I. As told in Russell I, the trial court awarded Janna a judgment for $1,224.00 for unreimbursed medical expenses incurred on behalf of a child and $15,799.00 for funds previously ordered to be paid into an Amegy UGMA. The trial court did not award Janna the additional child support arrearages she sought or attorney’s fees. In Russell I, Janna sought attorney’s fees and costs based on command language in Tex. Fam. Code sec. 157.167. The statute provides that the trial court may waive the command if good cause is shown and the trial court states the reasons supporting the good cause finding on the record. The Court of Appeals held in Russell I that the trial court abused its discretion by failing to award attorney’s fees without stating good cause. Chris appealed to the Supreme Court, but review was denied.

On remand, Janna moved for an award of the additional arrearage and fees pursuant to Russell I and requested a hearing on the motion. The trial court declined to hold a hearing. Its order on September 10, 2013 awarded Janna judgment for $166.78 but denied Janna’s request for fees, stating “The Court finds that David Christopher Russell is not in contempt, therefore, awards no attorneys fees. Attorney fees are denied at this time.” At a hearing on Janna’s motion for new trial, the trial court stated he did not believe an award of fees was appropriate and, had the Court of Appeals believed fees should have been awarded and the record established the amount, it would have reversed and rendered instead of remanding. The trial court also stated the fees requested were excessive but apparently also stated he believed “those fees were reasonable” and should be paid by Janna, but not Chris. Upon request of both parties, the trial court filed findings of fact and conclusions of law. Janna appealed.

Janna argued the Court of Appeal’s mandate instructed the trial court to award her fees, that fees under 157.167 were mandatory absent good cause stated on the record. Chris argued the Russell I opinion and mandate contain no language instructing the trial court to award Janna fees of $122,195.00–which the Court of Appeals agreed with–but disagreed with Chris’s argument that section 157.167 was not triggered because the requested fees were unreasonable. “Absent a specific finding that the respondent has shown good cause to not pay attorney’s fees, and the court stating the reasons supporting such a finding, the court is required to award reasonable attorney’s fees to the movant.” Additionally, the court noted it may not “imply a finding of good cause to support the trial court’s judgment.”

Ultimately, the Court of Appeals remanded, giving the trial court very specific instructions upon its duties. The exasperation between the lines is palpable, including the ominous last note. The trial court is ordered to: 1) hear evidence on Janna’s fee request, including segregation of fees; 2) determine the reasonable fees and costs Janna is entitled to recover for the child support claims on which she recovered under sec. 157.167 or state the reasons supporting a finding of good cause on the record; 3) determine whether Janna is the successful party under the fee-shifting provision incorporated into the decree as a result of her UGMA claim and any reasonable fees; and 4) determine whether and to what extent Janna is entitled to fees resulting from the second remand “including appellate attorney’s fees for a third appeal, if sought.”

As with Robert Downey Jr.’s Sherlock Holmes series, whether or not there will be a third installment remains to be seen.