Opinions, April 28, 2016: The Church Giveth & the Court Divideth

On April 28, 2016, both the First and the Fourteenth Court of Appeals released opinions which,  after rehearing, substitute for earlier opinions.

In West v. West, No. 01-14-00350-CV, Thurman West appealed the final decree in his divorce from Gwendolyn West, challenging the trial court’s finding that he was intentionally underemployed and setting his child support obligations at higher than statutory guidelines, mischaracterizing and distributing property, and awarding Gwendolyn her attorney’s fees.

Thurman and Gwendolyn married in 1997 and had three children. Thurman was/is the pastor and president of Southeast Community Church. Gwendolyn worked as the church’s bookkeeper from 2006 to 2009.

In his first and second issues, Thurman challenged the trial court’s findings that he was intentionally underemployed, a finding which the Court of Appeals did not even reach based on its review of Thurman’s income. In its decree, the trial court set monthly child support for Thurman at $1,906. Thurman’s salary from the church was $32,000 to $35,000 but that was his base income. Based on this salary alone, his monthly net resources were $2,485. But Thurman received remuneration from the church in other forms besides his salary. The church paid for the children’s health insurance; he received a weekly expense allowance of $200; the church had for a period of ten years given Thurman a $50,000 annual housing allowance; and every year Thurman received monetary gifts which increased his annual income as much as $20,000 to $25,000. The evidence, the Court of Appeals found, supported a finding that Thurman’s net monthly resources were $9,185. As this amount was above the statutory cap, his monthly child support obligation under guidelines would have been $2,250. By setting child support at $1,906, the trial court actually set it below guidelines. As such, the Court of Appeals affirmed the child support without reaching the issue of whether Thurman was intentionally underemployed.

Thurman’s third and forth issues challenged the property division. In 2003, Thurman and Gwendolyn purchased a residence in their names though the church made the down payment. From 2003 to 2010, Gwendolyn and Thurman lived in the house with their children. Thurman testified that “all understood from the beginning” that Thurman and Gwendolyn would deed the house to the church. Gwendolyn disagreed and testified that she never intended to deed the house to the church; that she and Thurman purchased the property in their names and made payments from Thurman’s income.

In 2005, Thurman and Gwendolyn had in fact executed a deed transferring the house to the church. In 2007, however, when interest rates improved and the church wanted to refinance the loan, the church deeded the property back to the Wests. After the Wests refinanced, Thurman attempted to deed his interest back to the church but Gwendolyn did not. The warranty deed signed by Thurman was in evidence. It purports to transfer both Thurman and Gwendolyn’s interest in the house to the church, but it is undisputed Gwendolyn did not sign the deed.

In its decree, the trial court awarded each party about $75,000 to $80,000 in assets. It awarded the house to Thurman which had a market value in 2013 of $278,140 and in which the community estate had equity of $60,433.

On appeal, Thurman’s third issue argued the trial court erred in characterizing the house as community property and awarding it to him in the division because there was no evidence he owned an interest in the house. Thurman’s fourth issue argued the trial court erred in characterizing funds in two of his bank accounts as community property when they were church related gifts and, thus, his separate property.

The Court of Appeals held that because Gwendolyn did not sign the deed, it was void; Thurman conveyed no interest to the church in 2007; the church remained community property; and the trial court did not err in awarding the house to Thurman.

As to the bank accounts, Thurman argued that the funds in two of the accounts were “gifts” from the church, constituted his separate property, and thus the trial court erred in awarding a portion of the funds to Gwendolyn. Gwendolyn testified that the “gifts” from the church were, in fact, income. The Court of Appeals found that these “gifts” were received by Thurman annually on his birthday and anniversary and that the church took up collections to pay these gifts (not to mention the “love gift” he received every fifth week in the amount of $1,150). As the funds were presumed to be community property, the Court of Appeals held Thurman failed to rebut the presumption with clear and convincing evidence that the funds were gifts instead of community property income.

In his fifth issue, Thurman was successful on his challenge to the award of attorney’s fees, however. The Court of Appeals found that Gwendolyn’s counsel failed to present evidence regarding the prevailing hourly rates, the reasonableness of the rates, or the number of hours spent on the case. The Court of Appeals ordered Gwendolyn take nothing on her claim for fees, but affirmed the decree in all other respects.

In Adeleye v. Driscal, No. 14-14-00822-CV, in his motion for rehearing, the appellant Adeleye presented evidence that he filed for bankruptcy on January 1, 2013 and was not discharged until July 10, 2015. During that two-and-a-half year period, appellee Driscal filed a petition for divorce on November 1, 2013 and the trial court signed a final decree on October 9, 2014. The bankruptcy instituted an automatic stay but the trial court in the divorce proceeding did not handle that issue. As such, the Court of Appeals abated the appeal and remanded the case to the trial court to explore the automatic stay issue.






Opinions, April 26, 2016: Grandparent Standing & Disappearing Lawyers

On April 26, 2016, the Fourteenth Court of Appeals released a memorandum opinion in In re J.O.A., No. 14-14-00968-CV, reviewing a conservatorship and child support modification order, and a published opinion in a grandparent SAPCR, In re K.S., K.S., & C.S., No. 14-15-00008-CV.

In In re J.O.A., the trial court granted a conservatorship and child support order in the father’s favor and the mother appealed. All the issues on appeal flow from the fact that the mother’s lawyer did not appear at trial due to her supposed sudden illness. When the mother’s lawyer did not appear, the mother left the courtroom for a portion of the trial and, when she was present, did not participate in the proceedings because she stated she could not without her attorney.

The mother filed a motion for new trial, alleging her counsel was struck by a “fibroid attack.” But the mother’s counsel had failed to file a motion for continuance, present any details or medical information regarding her supposed illness to the trial court, failed to contact opposing counsel the day before trial, failed to send a representative to trial, and even failed to inform her own staff of her condition.

The Court of Appeals’ opinion is twenty pages long, full of factual recitation and detail, including multiple excerpts from the transcripts of the trial and the hearing on mother’s motion for new trial. Long story short, the judgment of the trial court was affirmed because the mother’s counsel could not establish that her non-appearance was not the result of conscious indifference (i.e. the first prong of the Craddock test).

In In re K.S., K.S., and C.S., after a bench trial, the trial court signed an order appointing appellee Esther SMC of her minor grandchildren. The children’s parents, Michael and Diana, who were named possessory conservators, appealed, challenging both Esther’s standing and the merits of the trial court’s decision. The Court of Appeals affirmed.

Michael and Diana had nine children, ages 11 to 28. When Esther filed her original petition seeking SMC of the children, five of the children were minors. Now only three–K.S., K.S., and C.S.–are. From 1990 to 2011, Michael, Diana, and their children lived at Esther’s house in Hockley, Texas. While the parents and the children lived in the “main” house, Esther and her husband lived in the attached “mother-in-law” suite. Esther spent her days in the main house, caring for the children’s daily needs (food, clothing, bathing, transportation, homework, and medical care). Esther and her late husband also financially supported Michael and Diana in this time.

In August 2011, a dispute arose between Michael and Esther and Michael ordered Esther to leave. Esther and the seven oldest children hastily packed and left. Michael then changed the locks on the property and did not allow Esther or any of the children access to the home. Representatives from TDFPS later met with Esther, Michael, Diana, and the children. The parties agreed to a family safety plan which prohibited Michael from contacting the children.

On September 19, 2011, Esther filed a SAPCR, requesting the trial court appoint her SMC and that Michael and Diana’s visitation be supervised. Her petition included an affidavit alleging Michael verbally and physically abused the children and Diana was unable or unwilling to protect the children from him.

Temporary orders appointed Esther SMC and Michael and Diana temporary possessory conservators. The order granted Diana visitation as agreed upon by the parties but Michael was ordered to have no contact with the children. The trial court subsequently modified the TO, granting Diana visitation with the children through SAFE and found credible evidence Michael had a history or pattern of physical abuse or family violence. The parties were ordered to submit to a psychological evaluation.

After a bench trial, the trial court’s final order appointed Esther SMC of the three minor children and the parents PCs. A modified possession order granted the parents restricted access to the children due to the trial court’s finding that they engaged in a history or pattern of neglect and/or physical abuse of the children. Again, Diana was granted visitation through SAFE, but Michael was ordered to have no visitation or access to the children. The parents appealed.

Michael and Diana’s first issue concerns Esther’s standing to bring the suit. Esther asserted she had standing under Tex. Fam. Code §102.003(a)(9) which permits a person who has had actual care, control, and possession of the children for at least six months ending not more than 90 days preceding the date of suit. There was, simply put, an abundance of evidence that Esther was the primary caregiver for the children for the decades they lived together, including the testimony of the psychologist, members of the family’s church, a scout leader, and three of the no-long-minor children themselves. The parents’ first issue was overruled.

The parents also challenged the appointment of Esther as SMC. The Court of Appeals noted that if the trial court found that Michael and Diana abused or neglected the children, it would be prohibited from appointing the parents as managing conservators. The Court of Appeals then recited a litany of trial testimony that indicated mostly Michael, but also Diana, physically abused and were violent to the children. The issue was overruled.

Finally, Michael and Diana argued the trial court abused its discretion in deviating from the Standard Possession Order to grant them less possession and access. I think you know where this is headed. Two words: best interest. Affirmed.







Opinions, April 19-21, 2016: Primary Residence & Witchcraft

On both Tuesday and Thursday of this week, the Fourteenth Court of Appeals issued a memorandum opinion concerning determination of the primary residences of children, though the Thursday case has some strange facts.

On April 19, 2016, the Court released its memorandum opinion in Jacobs v. Alt, No. 14-15-00028-CV. In this case, the father argued the trial court erred in: 1) granting primary to the mother; and 2) excluding two pieces of evidence.

Mother filed a petition to adjudicate parentage as to the couple’s daughter. The father admitted paternity in his answer. He did not appear at trial and the trial court rendered a final order regarding conservatorship and possession and access (the “First Order”).

The father then filed a bill of review claiming he did not receive notice of the trial. The trial court set aside the First Order but did not set aside Temporary Orders that had been previously signed.

The mother’s brother was a registered sex offender. The father obtained a TRO and injunctive relief prohibiting the uncle from coming within 500 feet of the daughter. The daughter later told the father she had been in the uncle’s presence and then told CPS the same. The trial court entered temporary orders giving the father exclusive right to designate the daughter’s primary residence, ordered that the daughter be interviewed at the Child Advocacy Center, and that the child continue counseling. During the CAC interview, the daughter did not indicate that she had been sexually abused. Daughter’s counselor testified: 1) that she did not believe that the child had been around the uncle; 2) the child wanted to live with the mother; and 3) that granting the father exclusive rights was harmful to the child.

The trial court signed a final order granting the mother exclusive rights to designate the child’s primary residence, which the father appealed.

On appeal, two of father’s issues concern the purported exclusion of evidence. The first concerned a recording father made of a conversation between the mother and daughter which he said indicated the child was coached. The trial court excluded the evidence because it violated wiretap laws. Because the father did not make an offer of proof, his error was not preserved. The second evidence concerned mother’s objections to testimony from father’s medical expert. There were no specific rulings made by the trial court, however, which could give rise to a challenge on appeal.

Finally, the father argued that the trial court erred in designating the mother as primary when the evidence showed, he argued, that the mother allowed the child around the uncle, the mother struck the daughter, and that the mother drank excessive amounts of alcohol.

There was a lot of back and forth about the child’s representations concerning being in the uncle’s presence as there was the CAC interview, the court-ordered counseling, and the father had taken the child to another counselor. Ultimately, the trial court concluded the child had been around the uncle on one occasion but the mother had successfully kept the child away from him. The mother testified she drank one to two glasses of “watered-down wine” four nights per week. She also testified that she slapped the child in public on one occasion over a year before trial when the child cursed.

The evidence also showed that the father engaged in domestic violence while he had the daughter, that he hired a private investigator to search the mother’s trash, and that he was arrested for DWI shortly after completing rehab for alcohol addiction. There was also evidence the father was less willing to share in rights and duties of parenting.

The Court of Appeals found that while the mother did not always make the best parenting decisions, the father made destructive choices. The order was affirmed.

On April 21, 2016, the Court released its memorandum opinion in Chavez v. Chavez, No. 14-14-00481-CV, which also included a challenge to the property division in addition to the primary residence determination.

Lucidalia Chavez and Walter Chavez had two children during their marriage. In her petition for divorce, Lucidalia requested the trial court designate her as SMC and primary. After a bench trial, the trial court heard evidence showing: Lucidalia was the primary caregiver of the children, while Walter worked two jobs; Lucidalia had a relationship with another man for six years; when Walter heard this, he left the marital home and had a relationship with another woman which resulted in the other woman becoming pregnant; Lucidalia and Walter reconciled and resumed living together, with the father also supporting his out-of-wedlock child.

Lucidalia testified that she should be appointed primary because the father worked all the time, was verbally abusive, and hit the children with a belt. Walter testified that Lucidalia drove with the children in the car after drinking, she drinks around the children at home, and she brings men over to the house. Walter also elicited testimony regarding Lucidalia’s immigration status, her inability to speak English, lack of a Texas drivers’ license, and lack of Social Security number. Evidence was also introduced that Lucidalia attempted to marry her cousin. Walter testified that he had a legal immigration status, that he speaks English, and has a valid driver’s license and Social Security Number. Also, he testified that he owned a roofing company where he worked during the day and was a bartender in the evenings, but if he was named primary, he would quit his bartending job and have his mother help care for the children.

The trial court granted the divorce and named Walter as primary.

On appeal, Lucidalia asserted the evidence was legally and factually insufficient to support the trial court’s decision to name Walter primary. The court of appeals then reviewed the negative evidence against both parents in the record. The balance of the negative evidence is definitely against Lucidalia, including evidence of her alcohol abuse, driving the children while intoxicated, bringing men into her home in front of the children, including one occasion when she allowed a man to sleep in the bed with her and her son (which Lucidalia admitted had a negative effect on her son and “harmed his development”).

The most damning evidence is that Lucidalia asked witnesses to fabricate affairs with Walter and then testify to the fabricated affairs and that Lucidalia “spread ashes in front of Walter’s business in an attempt to use witchcraft to harm him.”

The Court of Appeals found that the evidence was sufficient to support the trial court’s determination Walter should be primary. Given the rulings against her in the trial court and now the court of appeals, she may want to double check her spells.

Lucidalia also challenged the admission of evidence relating to her immigration status, nationality, and ethnicity and that she attempted to marry her cousin. During trial, Lucidalia objected to the relevance of this evidence but on appeal, she alleged it was prejudicial. Because she did not object to the evidence as prejudicial in the trial court, she did not preserve error on the issue for appeal.

Lucidalia asserted the trial court erred in awarding a disproportionate amount of the community property to Walter. The Court of Appeals found that the trial court awarded Lucidalia a greater share of the community estate and split the liabilities. She also challenged the valuation of Walter’s roofing business, but the record did not contain any evidence in support of her own valuation. The Court of Appeals found her other specific challenges to the division lacked merit and affirmed the division.


Opinions, April 14, 2016: Absolute Nonsuit & Moot: Found Poetry in the Court of Appeals

This morning, the Fourteenth Court of Appeals released its Memorandum Opinion in In re Montgomery, No. 14-15-00203-CV, which includes a couple of instances of what appear to be inadvertent rhymes but which also happen to encapsulate the case’s holding.

In a divorce proceeding, Melba Jo Montgomery asserted tort claims against several individual and corporate defendants, alleging they conspired to defraud her of community property. These defendants go unnamed in the opinion and are given the vaguely ominous moniker the “Tort Defendants.” The Tort Defendants filed a motion for summary judgment on Melba’s claims. Before the trial court held a hearing on the motion for summary judgment, Melba filed a notice of nonsuit which stated she no longer wished to prosecute her claims against her husband, the Tort Defendants, or any of the remaining parties. Nonetheless, about two weeks after the notice of nonsuit was filed, the trial court signed an order granting the Tort Defendant’s MSJ. The same day the trial court signed the summary judgment order, it also signed an order granting the nonsuit.

If you’re like me (heaven forfend), you thought, “Wait a second. If Melba filed a Notice of Nonsuit, why was there an order granting the nonsuit?” Out of curiosity, I looked up the pleadings on the Harris County District Clerk website. It appears that Melba took the belt-and-suspenders approach of filing both a Notice of Nonsuit (not a motion for nonsuit), which affirmatively states that she no longer wishes to prosecute her claims and that the nonsuit is effective immediately upon filing, and a proposed order granting the nonsuit. Perhaps the trial court determined that by filing a proposed order, the notice of nonsuit was not immediately effective.

The Court of Appeals did not address this issue, though. Instead, it ruled that the notice of nonsuit complied with Rule 162 which provides that a plaintiff may nonsuit her claims at any time before she has introduced all of her evidence, other than rebuttal evidence. Which brings us to our first and clearest found poem in this opinion:

This right to nonsuit is absolute.

It’s not in iambic pentameter, but it’ll do.

The second example is not as precise, but it elaborates on the first:

The nonsuit was effective the moment Melba filed her notice, meaning her case was rendered moot immediately by the notice of nonsuit.

(Emphasis added for poetic effect) In other words, a notice of nonsuit renders the case moot.

Melba sought to set aside the MSJ ruling, which the trial court denied. On appeal, the Tort Defendants asserted several arguments in an attempt to defend the MSJ ruling. First, they argued that Melba had not served them with the notice of nonsuit in compliance with Rule 21a. The Court of Appeals held that Texas Supreme Court precedent does not require proper service for the notice of nonsuit to be effective.

Secondly, the Tort Defendants relied upon the electronic docket sheet which reflected that the trial court rendered summary judgment on the same day as Melba filed her notice of nonsuit but did not specifically state which came first. The Court of Appeals did not find this to be a persuasive argument, noting that a docket sheet does not carry more weight than the actual documents or the fact that the notice of nonsuit was time-stamped almost two weeks before the summary judgment order.

Finally, the Tort Defendants argued that the summary judgment should be upheld as a sanction under Rule 21b. After a notice of nonsuit has been filed, the non-filing party can still move for sanctions. The Tort Defendant moved for sanctions several hours after the notice of nonsuit was filed, along with the Tort Defendants’ reply to Melba’s response to their MSJ.  They alleged that Melba had violated the rules of service because she filed her response with the trial court but did not serve it on the Tort Defendants. They requested that the trial court strike her response from the record. On appeal, the Tort Defendants asserted that the trial court could have dismissed Melba’s suit with prejudice because that was available under the rules. The Court of Appeals disagreed because such sanctions can only be imposed only after notice and hearing and the record did not indicate a sanctions hearing was ever held. Also, the summary judgment order indicated it was granted on the merits of the MSJ.

In conclusion, once Melba filed her notice of nonsuit, the case was over and any rulings thereafter were moot.



Opinion, April 12, 2016: Mi Casa, Sue Casa: Reimbursement Claims & Capital Improvements

The Fourteenth Court of Appeals issued its published opinion in In re McCoy, No. 14-14-00870-CV today, a case concerning the evidence necessary to prove up a capital improvements reimbursement claim.

Husband and Wife were married in 1976. In 1990, Husband inherited real property where he and Wife lived until they separated in 2013. During the bench trial, Wife testified as to various home improvements made to the house during the marriage. Additionally, in 2004, there was a kitchen fire which resulted in the kitchen being completely redone. Wife testified that the total cost of all improvements was almost $100,000.00 and that all improvements were paid with community funds. Wife’s expert testified that the value of the house in 1990–when Husband inherited it–was $113,000.00 and that the value of the property at the time of trial in 2014 was $275,000.00. Wife testified that the “enhanced value” of the property was $162,000.00 (275,000-113,000=162,000) and that the improvements were what increased the value to its then-present value.

The trial court found in favor of Wife on her reimbursement claim in the amount of $162,000.00. The trial court split that amount between the parties, $81,000.00, and granted Wife an equitable lien on Husband’s real party in the amount of $81,000.00. Husband appealed, challenging the determination on Wife’s reimbursement claim.

The Court of Appeals found that there was sufficient evidence for the trial court to conclude that improvements to the property enhanced its value but found the evidence for the amount of the enhanced value wanting.

Enhanced value, the Court of Appeals continued, is the difference between the fair market value before and after improvements made during the marriage. The party seeking reimbursement must establish the enhanced value was due to the renovations. It is not enough for the party seeking reimbursement to show the value of the property has increased over time or the cost and expense to undertake the improvements.

In this case, the only evidence on this issue was the value of the house in 1990, before improvements, and in 2014, after improvements. There was no evidence on the causal relationship between the improvements and the enhanced value. The Court of Appeals remanded for a new trial on the reimbursement claim.





Opinions, April 5, 2016: What is a Substantive Change?

The First District Court of Appeals released two opinions this morning, one published and one memorandum opinion.

The memorandum opinion, Weido v. Weido, No.01-15-00755-CV, concerns a trial court’s changes to a mediated settlement agreement under a motion to clarify.

Brandy and Don Weido divorced when the child at issue was three years old. In the original decree, the parties agreed to send the child to “St. Helen’s Catholic School in Pearland, Texas or any other school agreed to by both parties beginning with preschool.”

When the child was five, the parents agreed to a modified MSA which amended the original decree to grant Don the right to make educational decisions “that enroll the child in a private school or within Pearland ISD.” The parents also agreed the residence of the child would be within Pearland City Limits.

Eventually Don filed a motion for clarification that is the basis of the appeal. Don filed the motion because he was considering sending the child to public school come fall. According to Don’s motion, his house was in the city limits of Pearland but fell within Alvin ISD. He argued two problems existed with the MSA which created ambiguities which he requested the trial court remove. First, he argued that when he signed the MSA, he understood it to allow him to enroll the child in a primary school within the public school district that the child primarily resides, i.e. Alvin ISD. Secondly, he argued that it was not possible for him to send the child to a Pearland ISD school.

The trial court granted Don’s motion because, it found, Don’s performance was impossible as he would have to either move or “lie about about where his kid currently lives.” Brandy’s attorney pointed out that he could continue sending the child to private school. The trial court acknowledged that but found an impossibility of performance as to Pearland ISD and modified the MSA “to read Pearland ISD or Alvin ISD, so that nobody has to move.” Brandy appealed.

The question on appeal is whether adding the words “or Alvin ISD” constituted a substantive change to both the MSA and the modification order improper under Tex. Fam. Code sec. 157.423(a).

The Court of Appeals noted that while the Family Code does not define what constitutes a “substantive change,” Texas courts generally look to judgments nunc pro tunc for guidance. As I blogged very recently, a judgment nunc pro tunc corrects either a clerical error or a judicial error. A judicial error is one that “results from judicial reasoning or determination,” whereas a clerical error “results from inaccurately recording the decision of the court.”

Brandy argued that the provisions of the MSA and modification order that Don seeks to purportedly clarify are clear and unambiguous. There was no evidence presented that the judgment incorrectly stated the rendition, the Court of Appeals held, and thus Don did not meet his burden in establishing an error existed which required clarification. Considering the differences between school districts can include the relative qualities of schools, family and community ties to the schools, and academic and extra-curricular opportunities in different schools. As such, adding Alvin ISD to the order was a substantive change. The order of the trial court was reversed and remanded.

The published opinion, In re Outi Salminen, No. 01-14-01021-CV, is another case I worked on. In this matter, the trial court exercised temporary emergency jurisdiction under Tex. Fam. Code sec. 152.204, and signed temporary orders granting the father temporary SMC and ordering the mother to immediately surrender the child to our client. The mother filed a petition for writ of mandamus. The Court of Appeals found the temporary orders were improper because, according to the Court of Appeals: 1) The father failed to establish the child was present in Texas at the time the temporary orders were entered; 2) The father failed to establish the child had been abandoned or was subject to or threatened with mistreatment or abuse; and 3) The trial court failed to comply with the procedural requirements of section 152.204(c) and (d).