Opinions, December 17, 2015: Adult Disabled Child Support & Forever Alimony

On December 17, 2015, the First District Court of Appeals released two published opinions in Hallsted v. McGinnis, No. 01-14-00967-CV and Thompson v. Smith, No. 01-15-00010-CV.

In Thompson v. Smith, the father of J.L., his intellectually-disabled  28-year-old daughter, unsuccessfully challenged the trial court’s order awarding the mother Smith indefinite child support.

Thompson and Smith were divorced in 1992. Smith received primary custody of their daughter J.L. In 2013, when J.L. was 28 years old, Smith petitioned the trial court for adult disabled child support.  The evidence showed that J.L. needed near-constant supervision, that she had an IQ of 77 at the age of 17 (near borderline intellectual disability), could not dress herself or prepare her own meals (Once, she had destroyed a microwave oven because she left a metal spoon in it and on another occasion started a grease fire on the stove). When she is depressed, she becomes angry and physically aggressive. She was diagnosed as bipolar.

In response to Smith’s evidence, Thompson testified that he did not believe that J.L. was incapable of self-support or that she required substantial care or supervision. But he did admit that J.L. required some supervision, that she had to be told “to do things,” and that he had not spent any significant amount of time with her since the divorce in 1992 and as a result did not have much personal knowledge of or experience with J.L.’s needs. It is at this point in reading the COA’s opinion one feels pretty sure he is not going to win.

Thompson contended the evidence was legally or factually sufficient to support the trial court’s finding J.L. is disabled. In support, Thompson pointed to the evidence that J.L. testified on her behalf in trial court; was eligible to vote; executed a power of attorney; dresses herself; can read, write, perform basic math; and has a high school diploma. But the COA affirmed the trial court’s finding, stating Thompson’s argument did not account for the preponderance of the evidence.

Thompson also challenged the legal and factual sufficiency of the trial court’s finding that J.L. requires substantial care and personal supervision because of her disability. The COA noted that Thompson failed to point to any affirmative evidence that J.L. was able to live independently. On the contrary, the evidence in the record showed that all three of J.L.’s family caretakers testified that J.L. is unable to do so.

Thompson contended the trial court erred in awarding support under Tex. Fam. Code sec. 154.306. Thompson argued J.L.’s general living expenses did not satisfy the statutory requirement that they meet a need stemming directly from her alleged disability. The COA disagreed, pointing to the evidence that J.L.’s disabilities rendered her unable to work, that she could not independently meet her own daily living and health care expenses, that she requires substantial care and personal supervision, that Smith provides substantial care and personal supervision in her own home, that Thompson was not asked to pay for J.L. to receive care from a third party, such as a supervised living community or adult day care. The evidence supported a reasonable inference that Smith would continue to care for J.L. into the indefinite future. Additionally, any evidence that Smith’s current husband supported J.L. was inapposite as he had no obligation to support J.L.

In short, the COA affirmed the trial court.

In Hallsted v. McGinnis, Shawn Hallsted sued her former husband, Kevin McGinnis, claiming that he failed to comply with the parties’ agreement incident to divorce (AID) requiring him to make periodic alimony payments. As damages, she sought compensation calculated pursuant to the AID’s default and acceleration clause. After a bench trial, the trial court denied Hallsted’s request for relief and her motion for new trial. On appeal, Hallsted argued the trial court erred in rendering judgment denying her claim for breach of the AID and denying her MNT, and the judge who presided over the bench trial who is no longer on the bench engaged in judicial misconduct that prejudiced Hallsted. The court of appeals reversed and remanded on the first issue alone and so did not reach the second issue.

Hallsted and McGinnis entered into the AID in 2001, which was approved by the trial court and incorporated into the parties’ divorce decree. The AID required McGinnis to pay Hallsted $2,500/mo but the parties did not agree on what the correct interpretation of the term of that payment was under the AID. McGinnis alleged the contract required him to make payments for the rest of his life and as such it was an unenforceable agreement under Texas law and against public policy. Hallsted alleged it required payments only through January 2014.

The dispute was based on the indentation of the term paragraph. Analyzing the language of the provision and the evidence, the Court of Appeals concluded the term provision was unambiguous and obligated McGinnis to make payments until 2014. But the court also noted that McGinnis’ contention that the provision was unenforceable because it obligated him to make payments for the rest of his life was without merit. While a court may not be able to order lifelong alimony, there is no reason the parties cannot independently agree to it in an otherwise enforceable agreement.




Opinions, December 8, 2015: Getting Invoices Into the Record

The First District Court of Appeals released its memorandum opinion this morning in Young v. Terral, No. 01-14-00591-CV. It is an unfortunate reminder to attorneys to make sure their invoices are admitted into the record if they want their fee award to survive on appeal.

Jerrod Young (“Father”) filed suit against Kathryn Terral (“Mother”) to establish paternity, conservatorship, and possession of their child. Father appeals the awards of retroactive support, compensation for pre- and post-natal expenses, and attorney’s fees. The Court of Appeals reversed and remanded on the attorney’s fees issue, but affirmed the remainder of the judgment.

Mother and Father lived together when their daughter was born in 2009. They separated in 2010 and initially agreed to an informal child support arrangement in which Father would pay for Mother’s car insurance and the child’s healthcare expenses which totaled about $200.00/mo. In 2012, Mother asked for formal child support and Father signed paperwork from the AG’s office to that effect. Father stopped paying for Mother’s car insurance before the formal child support began. Mother claimed she did have notice that Father stopped paying the insurance and that her car was nearly repossessed. This led to “an incident” in which Mother “took the child from Young by force and prevented him from seeing her for six weeks.” The Court of Appeals did not elaborate further.

Consequently, Father filed to establish for paternity, conservatorship, possession, child support, and attorney’s fees. Mother countered, seeking conservatorship, a restraining order, retro support, and fees. Under an agreed TO, Father paid $300/mo in child support, including withholdings from earnings that would be credited against the child support obligation.

After a bench trial, the trial court ordered Father to pay child support of $679/mo and $5,072 in retroactive support, and $4,375 which represented half of the COBRA insurance premiums as pre- and post-natal healthcare expenses.

Father’s three issues on appeal were: 1) the trial court erred in the amount of retro CS because it deviated from the Texas Family Code; 2) the trial court had insufficient evidence to support an award of pre- and post-natal expenses because the evidence was improperly presented and was an unfair surprise; and 3) there was insufficient evidence to support the award of attorney’s fees.

On the issue of retroactive support, Father alleged the trial court failed to consider the $77 in withholding from his wages that he had been paying pursuant to TO. The Court of Appeals found that the court had sufficient evidence to make the award because it was far less than the amount it could have awarded.

On the issue of natal expenses, the court of appeals found Mother’s mother’s testimony and the handwritten ledger she offered were sufficient evidence of the medical expenses. Father did not raise the issue of unfair surprise at trial.

On the issue of fees, Mother’s testimony on the reasonableness of the fees requested was limited to the following:

Q: Are you asking the Court that Mr. Young pay your attorney’s fees today?
A: Yes.
Q: And did you agree to pay me a reasonable rate?
A: Yes.

Also, at the end of trial, Mother’s counsel asserted her fees were $9,272.

The Court of Appeals found this was insufficient evidence of the fee award and could be brought for the first time on appeal. Mother asserted that the full invoices and contract for employment were disclosed in discovery but admitted that they were not part of the record. Because there was “some evidence” of the fees awarded, the Court of Appeals remanded to trial court for further proceedings.

Opinions, December 3, 2015

If you couldn’t make it to the HBA’s holiday party last night, you missed a charming soiree and great honor for Pam Hunt, the 247th’s exemplar coordinator and recipient of this year’s professionalism award.

This morning, the Fourteenth Court of Appeals issued its published opinion in In re Baden, No. 14-15-00698-CV, in which Ms. Baden challenged an order of contempt entered by the 328th in Fort Bend County. The Court of Appeals sustained the challenge in part and denied it in part.

Mother and Father were not married. In November 2013, Judge Farr in the 312th Harris County Judicial District Court appointed both parties JMCs and named Mother as primary with the exclusive right to designate the residence of the child in Texas and New York. The case was later transferred to Fort Bend.

In May 2014, Father filed a motion for enforcement for possession and access and, alternatively, to modify. He alleged 29 violations including failing to deliver the child to the airport in January 2014 for a four-day visit in New York. Father requested Mother be held in contempt and that he be awarded make up time. He also asked for a modification to be named primary.

In her response, Mother alleged that she was not required to put the child on the plane because Father did not buy tickets.

At the conclusion of an evidentiary hearing in December 2014, the AJ found Mother in contempt for not turning over the child and sentenced her to 60 days’ confinement, suspended upon compliance. He granted Father 62 days of make up possession and also awarded attorney’s fees of about $5,000 (enforceable by contempt), which included the price of airline tickets and $300 cancellation fee.

The Court of Appeals found that Father complied with the order in regards to the purchase of tickets. However, the Court of Appeals found: 1) that the trial court erred in ordering attorney’s fees enforceable by contempt because the testimony on fees was not segregated between work on the enforcement and work on the modification; 2) 62 days of make up time for a missed four day visit was too much, as the Tex. Fam. Code sec. 157.168 requires the trial court to award make up time in similar amounts; and 3) the trial court erred by awarding Father a $300 cancellation fee reimbursement that he did not ask for at trial.