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.

 

 

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