Opinions, Nov. 24, 2015

Three memorandum opinions this morning, one from the First District COA and two from the Fourteenth.

In Mandeville v. Mandeville, No. 01-15-00119-CV, Charles Mandeville appealed the final decree of divorce on the grounds that the trial court erred by excluding a marital property agreement from evidence and ordering that his possession of the children be supervised. The COA affirmed.

Charles and Deborah Mandeville married in 2000 and had five children during the marriage. In January 2014, Deborah filed for divorce in Fort Bend County, and later amended her petition to request that Charles’ visitation be supervised. Charles filed a counter-petition and jury demand. The COA went out of its way to note that though Charles had representation when he filed his counter-petition, by the time of the pretrial hearing, he was pro se. This, it turns out, is just the prelude to a litany of bizarre, paranoid behavior by Charles both during the marriage and trial. For example, Deborah had to procure birth certificates and social security numbers to enroll their children in school without Charles’ knowledge because he did not believe in them. He  apparently inculcated delusional concerns for his and his family’s safety into his children. He left the jury trial on the second day, noting on the record, “I’m leaving under threat, duress, coercion, lack of counsel. This is absolutely not voluntary. I’m trying to save my children from sadism and evil. This is just disgusting.” After he left, his own aunt testified that his parenting was problematic and that his visitation should be supervised.

Long story short, the COA upheld the jury’s finding that his visitation with the children should be supervised. I hope Charles gets the help he needs.

With regards to the marital property agreement, the COA found Charles did not preserve the error. Prior to trial, Deborah filed a motion in limine which requested Charles be ordered to refrain from mentioning the marital property agreement in the presence of the jury because he did not fully respond to interrogatories on the issue. The trial court granted the motion in limine. However, the COA states, a ruling on a motion in limine is not a final evidentiary ruling. Because Charles never offered the marital property agreement into evidence during the trial–and thus never obtained a ruling–he failed to preserve the error and waived his issue on appeal.

The Fourteenth released its memorandum opinions this morning in Reynolds v. Reynolds, No. 14-14-00624-CV and In re Kevin Matthew Hall, No. 14-15-00895-CV.

Reynolds is another installment of the Reynolds Saga, which I blogged about on July 23, 2015. Today’s opinion concerns an enforcement suit filed by Wilma to enforce the property division.

Wilma and David divorced in 2008. In her enforcement suit, Wilma argued she had not received her 50% share of David’s 2008 estimated income from a business interest. She asked the trial court to order David to produce financial records, to liquidate her share of the business interest and to order David to pay that amount to Wilma. David filed a motion for summary judgment, arguing he had complied with the decree. The trial court agreed, granted a final judgment in David’s favor and the COA affirmed.

In her first issue, Wilma contended that the trial court erred by not ordering David to produce financial records. David established that he had produced responsive documents in previous proceedings. The COA listed seven other related appellate cases in a footnote.

In her second issue, Wilma asserted that the trial court erred by granting summary judgment in favor of David because she did not accept the check for her half of the 2008 income that David tried to mail her several times and which was placed into the registry of the court. Because Wilma produced no summary judgment evidence that the check was not for the right amount, the summary judgment was sustained. Stay tuned for the next installment.

In In re Kevin Matthew Hall, Kevin filed a petition for writ of habeas corpus, asking the COA to vacate an October contempt and commitment order from the 308th. The COA denied the request.

Kevin and Rebecca were divorced in 2012 and appointed JMCs of the child, with Rebecca as primary. Rebecca filed an enforcement suit, alleging 55 violations of the decree. On October 15, 2015, the Court held a hearing and signed the contempt order giving rise to the original proceeding. The order found Kevin in contempt for five violations involving failing to return the child to Rebecca’s residence at 6:00 pm on Sundays. He was committed to the Harris County jail, but was released on bail about two weeks later.

In his first issue, Kevin alleged the motion for enforcement and the contempt order did not adequately provide him with notice of his violations. Kevin argued that the operative language in the decree is subject to multiple interpretations and thus cannot be enforced by contempt. Here are the key provisions:

1. Weekends— On weekends that occur during the regular school term, beginning at the time the child’s school is regularly dismissed on the first, third, and fifth Friday of each month and ending at 6:00 P.M. on the following Sunday.
* * *
2. Return of the child by KEVIN MATTHEW HALL—KEVIN MATTHEW HALL is ORDERED to return the child to the residence of [Mother] at the end of each period of possession.

This is straight out of the Standard Possession Order, of course. Kevin argued it was unclear from the motion and order if the violations are to have occurred on a Thursday or on a Sunday, during the school year, a school holiday, or summer break or who was entitled to possession during the violative periods. The Court of Appeals found this argument wanting, finding the motion and order adequately notified Kevin of the time periods at issue.

Kevin also argued that the contempt order does not state the dates on which he failed to comply with the order because the order does not provide details of when he did return the child to Rebecca. The Court of Appeals dismissed this argument as well because there is no requirement the order include this information.

Kevin argued the order does not state that any of the dates alleged were dates Rebecca was entitled to possession of the child. The Court of Appeals found that the order did not need to state when Rebecca’s possession commenced because it provided for when Kevin’s ended.

Kevin also argued that the motion and order did not state the manner of his noncompliance because the language purportedly did not specify whether he violated the time or place of return provisions. The COA dispatched this argument as well, as the trial court found he did not return the child to the place at the time ordered.

Finally, Kevin alleged his due process rights were violated because he did not receive a jury trial. Because he was confined less than 6 months the charge was not “serious” and he was not entitled to a jury.

 

 

 

Opinions, Nov. 17, 2015

Today, the Fourteenth Court of Appeals released its published opinion in Villalpando v. Villalpando, No 14-14-00526-CV, affirming the decree entered by the 257th.

Susana and Armando Villalpando were married in 2003 and had two children during the marriage. In February 2010, Susana moved to Dallas with the children. In November 2012, Armando filed for divorce, alleging insupportability as the grounds. Susana counterpetitioned for divorce on the grounds of cruel treatment.

At trial, Susana and her sister testified to Armando’s physical abuse of Susana. The COA notes Armando testified he had a drinking problem during the marriage, but does not indicate he contested Susana’s allegations of domestic violence. The trial court granted the divorce on the grounds of insupportability.

Also at trial, the parties testified that they own “many properties and four vehicles” but neither party submitted documentary evidence to support the values of most of the properties. Armando submitted into evidence 5 years of tax returns and an FIS showing his monthly net resources. The trial court divided the parties’ community property and ordered child support based on Armando’s FIS.

On appeal, Susana challenged the grounds upon which the divorce was granted, the division of the property, and the amount of child support ordered. As for the grounds, the COA stated that the trial court had discretion to deny the request for the cruel treatment grounds without further analysis.

Susana also challenged the division of property, arguing:

(1) the trial court mischaracterized two pieces of separate property as community property, (2) in dividing the community estate, the trial court failed to consider all of the factors Susana raised, (3) the trial court abused its discretion in granting a disproportionate amount of the estate to Armando, and (4) the trial court abused its discretion in failing to calculate the amount of the reconstituted estate.

On the first point, the COA held that (I bet you know where this is going) because there was either little evidence or conflicting evidence regarding the characterization of the two pieces of property, the trial court could have reasonably found there was insufficient evidence to meet the clear and convincing evidence standard to overcome the CP presumption.

As to the second point, Susana argued the trial court did not consider the evidence of fault or the disparities in the parties ages, abilities, earning capacities, and separate estates, but she did not cite any portion of the record indicating this. If anything, the COA stated, it appeared from the record the trial court took those factors into account and awarded Susana a larger portion of the community estate.

Susana also argued Armando received a disproportionate share of the CP based on several assertions, e.g. the evidence was insufficient to find there was a $16,000 debt on one of the properties. The COA added up the values of Susana’s award and then Armando’s and found “[c]ontrary to Susana’s assertions, the trial court awarded her a disproportionately higher amount of the community estate.”

As for the reconstituted estate allegation, Susana alleged the trial court erred by failing to make a finding of fact that Susana failed to prove an actual or constructive fraud by Armando on the community estate. The COA noted that Susana requested findings of fact and conclusions of law, which the trial court issued. But the findings of fact and conclusions of law issued by the trial court did not include a finding of fact or conclusion of law related to the claim of fraud on the community or Susana’s request for a reconstituted estate. Because Susana did not request additional findings, she waived the right to complain on appeal about the trial court’s purported failure to make the omitted findings of fact or conclusions of law.

Susana alleged the trial court erred by denying her reimbursement claim, but this allegation hinged on Susana’s assertion one of the properties should have been characterized as separate property. Because the trial court did not err in finding it was community property, the improvements thereon benefited the community estate.

Finally, Susana challenged the order for child support, arguing the evidence was legally and factually insufficient to support the order. On review, the court uses a two-prong test to determine whether the trial court abused its discretion: 1) Did the trial court have sufficient information upon which to exercise its discretion? 2) If so, did the trial court abuse its discretion by rendering a child-support order that was manifestly unjust or unfair? The COA found Armando’s FIS, 5 years of tax returns, and receipt for rental properties were sufficient to establish Armando’s monthly net resources. Susana did not produce any evidence supporting her contention that Armando was underreporting his income.