Opinions, May 24, 2016: Please Plead Me

This morning brings us one published and one memorandum opinion from the Fourteenth Court of Appeals, both wins for well-known Houston family law attorney, Walter Mahoney.

In the published opinion, Day v. Day, No. 14-15-00326-CV, the appellant Timothy Day in a restricted appeal challenged the divorce decree entered that awarded spousal maintenance to his ex-wife, Kelly Day, when she had not pled for it.

Kelly filed an original petition for divorce which was served on Timothy. Timothy did not answer or appear. After presenting evidence, Kelly took a default judgment against him which divided the community property and ordered Timothy to pay spousal support for 60 months. Timothy filed a restricted appeal within the six-month deadline.

Timothy’s single issue on appeal is that the trial court erred by awarding spousal maintenance when Kelly’s pleadings did not request it. The Court of Appeals agreed that Kelly had not pled for spousal maintenance and had not provided fair notice it would be an issue at trial. Kelly argued that the pleading gave fair notice by requesting temporary relief and referencing her need for future support. The COA disagreed, construing the petition language to request spousal support while the divorce was pending, not support that extended after divorce.

Kelly also argued that her prayer for general relief was sufficient but the Court of Appeals disagreed there too. The court did note, however, that in the default judgment context, some courts have held that a prayer for general relief will support an award of any relief raised by the evidence. But (a significant but) the relief must be consistent with the allegations in the petition. The Court of Appeals looked to the portion of Kelly’s petition which asked the trial court to consider her “need for future support” as one of the “reasons” she “should be awarded a disproportionate share of the parties’ [community] estate.” The Court of Appeals found this was not consistent with with an award of post-divorce spousal maintenance.

The Court of Appeals sustained Timothy’s issue and deleted the portion of the decree awarding the post-divorce spousal support.

In the unpublished opinion, Williams v. Williams, No. 14-15-00090-CV, Jeff Williams appealed the decree out of the 311th. In his single issue, Jeff challenged the decree’s division of a portion of his retirement account which he claimed were his separate property. In support of this position, he made two arguments: 1) the trial court erroneously failed to include a separate property finding in the decree when the trial court purportedly made an oral pronouncement at the end of trial; and 2) Jeff established the separate property character of the retirement funds by clear and convincing evidence.

The Court of Appeals took issue with the first argument, stating that Jeff did not cite to any place in the record where he preserved his argument by making it in the trial court. Even if he had, the trial court would have still had plenary power when the decree was entered and appellate courts interpret variances between a judge’s oral rendition and the final decree to be “effectively modifications.”

Turning to the second argument, the Court of Appeals agreed that all the evidence at trial showed that Jeff had about $18,000 in his retirement account at the time of marriage.  Both parties presented inventories representing that amount as Jeff’s separate property, and the testimony and rollover document admitted into evidence supported the conclusion.

The Court of Appeals remanded the entire division back to the trial court because the amount at issue was not de minimis.





Opinion, May 19, 2016: International Divorce & Texas Domiciliary Requirements

On May 19, 2016, both the First and Fourteenth Courts of Appeals issued memorandum decisions.

In Willig v. Diaz, No. 01-15-00073-CV, Cornelis Willig challenged the trial court’s granting of Marcela Gutierrez Diaz’s special appearance which the First affirmed.

Willig and Diaz were married in 2009 and, in 2010, they moved to the Netherlands and resided in a home owned by Willig. In January 2010, Willig came to Houston without Diaz on business and evidently traveled back and forth between Texas, the Netherlands, and various other international locales. On February 4, 2014, Diaz filed a petition for “accompanying arrangements” in the Netherlands which sought temporary initial maintenance. She then filed for divorce on March 28, 2014. After receiving the maintenance suit, Willig retained counsel and made in an appearance in the Netherlands. The Netherlands court issued temporary orders that Diaz had exclusive use of Willig’s home, but that he did not have to pay maintenance to Diaz.

Willig then retained counsel and filed suit in the 309th district court of Harris County on March 24, 2014 (i.e. four days before the Diaz filed for divorce in the Netherlands). Diaz responded with a special appearance, contending the Harris County court lacked jurisdiction because she lives in the Netherlands, had insufficient contacts with Texas, and that assumption of jurisdiction over her would offend–you guessed it–traditional notions of fair play and substantial justice. She also filed a plea in abatement arguing Willig himself didn’t meet the domiciliary requirements and the suit should be abated until the Netherlands suit was determined.

Willig amended to seek an in rem divorce and requested the court divide the estate located in Texas and to confirm his separate property. Willig testified at the special appearance hearing but the trial court granted Diaz’s special appearance. Willig filed a request for findings of fact and conclusions of law and a motion for new trial which was denied.

The Court of Appeals dealt with Willig’s second issue first, in which he argued he was entitled to an in rem divorce because, according to him, he met the section 6.301 domiciliary and residency requirements. The trial court’s FOF/COL founds specifically that he had no intention of remaining in Texas and that he was here strictly for business purposes; as such, the court concluded, he did not meet 6.301’s requirements.

Willig testified that he came to the U.S. as an investor in 2010 to incorporate his business, but he admitted that he only slept in Texas 30 to 40 nights per year (50 nights in Texas 2011 and 120-140 in 2012; but six continuous months in 2013). From 2010 to March 24, 2014, he would stay in a suite hotel but signed a lease for an apartment in March 2014 (i.e. the month he filed his petition) and rented furniture. He obtained a Texas drivers’ license in April 2014, which listed the apartment as his address.

Nonetheless, the Court of Appeals noted that when he filed on March 24, 2014, he was required to show that he he’d been a Harris County resident for 90 days and a Texas domiciliary for 6 months. The evidence did not support such a finding, however, and the trial court did not err in finding Willig had not met the requirements of 6.301 to file a divorce.

The Court of Appeals went on to review Willig’s claims under 6.308. Even if he met the domiciliary and residency requirements, he was still required to show the trial court had jurisdiction to grant a divorce. Section 6.308 grants the trial court discretion to exercise authority over a portion of a suit. The Court of Appeals held that Willig did not cite any authority which required the trial court to exercise the minimum discretion to grant the in rem divorce. Given the trial court heard evidence that, inter alia, there were divorce proceedings pending in the Netherlands that both parties had appeared in and in which temporary orders had been entered, the trial court did not abuse its discretion in declining jurisdiction.

Because the second issue was dispositive of the entire matter, the Court of appeals did not reach his other issues.

In a brief five page memorandum opinion in IMMO Apffel, No. 14-15-00076-CV, the Fourteenth Court of Appeals affirmed the Galveston County Civil Court at Law’s decree requiring appellant Ralph Apffel to execute the documents listed in the MSA and resulting divorce decree.

Ralph and Diane married in 1993. After 20 years of marriage, Diane filed for divorce. The parties entered an MSA which required Ralph to pay Diane $140,000 but he was awarded the couple’s property on Airway Lane. It also required him to execute the normal SWD, DOTSA, and promissory note to finalize the matter. Prove up of the MSA occurred in September 2014 and an entry date of October 6, 2014 was set, but the decree was not signed until December 22, 2014.

Ralph appealed the decree and, in his sole issue, contended the trial court erred in requiring him to execute documents securing his $140,000 payment to Diane. He argued that because he had already paid the $140,000 when the decree was signed, there was no need to secure the payment. All the same, the Court of Appeals noted that the agreement between the parties seemed to indicate that the lien should be secured even if the $140,000 payment was made. The MSA included the customary non-revocable and binding language. The Court of Appeals found the trial court did not err in requiring Ralph to execute the documents as required by the agreement and decree.


Opinions, May 5, 2016: Mandatory Transfer of Venue

The First District Court of Appeals released its memorandum opinion in In re Sheard, No. 01-15-01027-CV, a mandamus action over mandatory transfer of venue.

In June 2013, a Harris County district court appointed Sheard PC of her child while her aunt and uncle, Judy and Ronald O’Dell, were named JMCs. In October 2015, Sheard filed a modification and a motion to transfer to Montgomery County under Tex. Fam. Code §§ 155.201 and 155.204. In her motion to transfer, she alleged the child’s principal residence was in Montgomery County and that she and the child had been in the county for the preceding 6 months. The O’Dells filed a counterpetition, seeking termination of Sheard’s parental rights.

The O’Dells also opposed the transfer, arguing the Harris County district court was familiar with the case history. Additionally, they requested the reappointment of the ad litem from the previous order and argued that transferring the case to Montgomery would be an inconvenience for the ad litem. The Harris County trial court denied the motion to transfer and signed an order appointing the ad litem requested by the O’Dells.

Sheard filed the mandamus and, in her first issue, asserted the transfer was mandatory under the statute. The Court of Appeals agreed, noting that transfer of a case to a county where the child has resided for more than six months “is a mandatory ministerial duty under section 155.201 of the Family Code.”

The O’Dells argued in response that the motion to transfer was filed-stamped October 8, 2015 and her modification petition was file-stamped October 13, 2015; thus, the O’Dells argued, the motion to transfer was untimely and too early because Sheard was not, at that moment, a petitioner or movant as required by the statute. Sheard argued that she file the motions simultaneously and that the file-stamp discrepancy was caused by a clerk mixup. The Court of Appeals found the transfer motion was timely because the motion to transfer was filed at the same time as the modification.

Because Sheard’s motion was timely, the burden shifted to the O’Dells to file a controverting affidavit. They had filed an untimely affidavit, but it only argued the issue of convenience and did not dispute the fact the child had resided in Montgomery County for more than six months.

The O’Dells also argued Sheard’s pleadings framed the matter as an issue of convenience which “amounts to invited error.” The Court of Appeals was not persuaded, finding that Shear’s pleading and argument at the hearing, which though they touched upon the inconvenience issue, asserted the basis for mandatory transfer as required by the statute. The “invited error doctrine” was not implicated.

In her second issue, Sheard argued the trial court erred in reappointing an attorney ad litem: 1) without proper notice and hearing; and 2) in Harris County after it was established that transfer to Montgomery County was mandatory. However, the Court of Appeals found that Sheard did not argue in the trial court that the trial court lacked discretion to appoint an ad litem after Sheard established transfer was mandatory and, as such, the argument could not be considered on mandamus. The court also determined Sheard had not established an abuse of discretion as to the ad litem order.

Thus, Sheard’s challenge to the order denying the transfer was sustained, but her challenge to the appointment of the ad litem was not.


Opinions, May 3, 2016: Ex Post Facto Law & Child Support Enforcement

The First District Court of Appeals released one published opinion, Dise v. Dise, No. 01-15-00407-CV, and one memorandum opinion, Hicks v. Hicks, No. 01-15-01011-CV, this morning, while the Fourteenth released a memorandum opinion, In re T.B., No. 14-14-00925-CV.

First, the published opinion, which arises out of the nexus of bankruptcy and family law but concerns statutes of limitation for child support confirmation. The trial court signed the decree of divorce on January 24, 1986, dissolving the marriage between Murphy and Evelina Dise. The trial court awarded managing conservatorship to Evelina over the couple’s one child and ordered Murphy to pay child support. Dise did not make all of his child support payments and the OAG obtained administrative writs of withholding against Dise several times. The child turned 18 in 2003.

In May 2010, the OAG filed a motion to confirm Murphy’s arrearages. A hearing was held in December but Murphy didn’t show. Almost a year later, the trial court entered a default order on October 6, 2011, confirming arrearages of $29,484.31 and ordering Murphy to make monthly installment payments of $200 beginning in January 2011. The trial court also entered an order directing Dise’s employer to withhold from his income.

Murphy moved for new trial, arguing he did not receive notice of the December 8, 2010 hearing and, in fact, he had filed bankruptcy the day before the hearing. What a coincidence.

On his bankruptcy schedules, Murphy listed Evelina as a creditor but did not list the arrearages as a Domestic Support Obligation (“DSO”). He received his discharge in March 2011. In June 2012, the OAG filed a complaint in the bankruptcy court to have the arrearages declared exempt from discharge as a DSO. The bankruptcy court, not surprisingly, agreed the arrearages were a DSO and declared they were exempt from discharge, entering a judgment for $34,405.62.

On December 12, 2013, the trial court took judicial notice of the DSO judgment and, at the OAG’s request, adopted the bankruptcy court’s judgment and confirmed Dise’s child support arrearages in the amount of $34,405.62. Murphy appealed.

Murphy’s sole issue on appeal is that the trial court erred by adopting the bankruptcy court’s judgment because, according to Murphy, the trial court lacked jurisdiction to enter an order confirming the amount of arrearages. He argued Tex. Fam. Code §157.005(b) is a statute of limitations and that the version of the statute that was in effect in 1986 when the decree was signed provided a motion to confirm arrearages must be filed in two years of the child’s turning 18 for the trial court to have jurisdiction to enter judgment confirming arrearages. The basic argument here is that the law at the time was if you can dodge a confirmation action for two years, you’re in the clear.

The version of the statute in effect when the decree was signed was Family Code 14.41(b), which provided that the trial court “retains jurisdiction to enter judgment for past-due child support obligations if a motion to render judgment for the arrearages is filed within two years after (1) the child becomes an adult” or “(2) the date on which the child support obligation terminates pursuant to the decree or order or by operation of law.” But in 1999, the Legislature amended the statute, now §157.005(b) to state:

The court retains jurisdiction to confirm the total amount of child support arrearages and render judgment for past-due child support until the date all current child support and medical support and child support arrearages, including interest and any applicable fees and costs, have been paid.

This is the version that was in effect in 2003 when the child turned 18 and this version, the Court of Appeals observed, eliminates the time period within which a party must file a motion to confirm.

In 2005, the Legislature again amended the time period for which the trial court retains jurisdiction to confirm a total amount of child support arrearages. The current version grants the trial court jurisdiction to confirm arrearages if the motion is filed within 10 years after the date either the child becomes an adult or  on which the child support obligation terminates under the child support order or by operation of law. The Legislature also provided that this 2005 amendment “relating to the enforcement of a child support order rendered before the effective date of this act [June 18, 2005] applies only to a proceeding for enforcement that is commenced on or after the effective date of this Act.”

Murphy argues that the amended versions of §157.005, enacted after the 1986 divorce, are unconstitutional ex post facto laws and should not be retroactively applied to his case. The Court of Appeals disagreed, finding that the statute is, like an administrative writ of withholding, a “procedural vehicle to secure fulfillment of the existing obligation” and cited caselaw which held that “courts of appeals have consistently held that the constitutional ban on retroactive laws does not preclude applying new enforcement tools to old support orders.” See In re A.D., 73 S.W.3d 244, 248 (Tex. 2002).

As applied to this case, the trial court retained jurisdiction to confirm the amount of arrearages if the motion was not filed later than the 10th anniversary of the child turning 18. The child turned 18 in 2003, the motion was filed in 2010. The Court of Appeals affirmed the trial court.

In the First’s other opinion this morning, Hicks v. Hicks, Larry Hicks, appellant pro se, challenged the decree in his divorce from Dawn Hicks, arguing the trial court erred in denying his discovery motion, denying him a jury trial, and not providing him with adequate notice before signing its final decree. The Court of Appeals affirmed.

In his first issue, Larry argued the trial court erred in not providing him with “adequate” notice before it signed the decree. However, Larry signed the final decree, stating that he “approved and consented” to “both [its] form and [its] substance.” Further, the record indicated the divorce was uncontested. The issue was overruled.

In his second issue, Larry contended the trial court erred in not granting his discovery motions, but there was nothing in the record which indicated the trial court ruled on these motions or that Larry objected to the trial court’s refusal to rule. By failing to obtain a ruling on the discovery issues, he waived the issue and did not preserve it for appeal.

In his third and final issue, Larry argued the trial court erred in denying him a jury because he purportedly requested one in the “proposed final decree of divorce” that he filed. That proposed decree stated:

Upon the Court signing this FINAL DECREE OF DIVORCE a jury will be waived. However, in the event that the Court does-not sign this FINAL DECREE OF DIVORCE, a Jury Trial in all things is requested.

Larry did not assert that he paid the jury fee or filed an affidavit of indigence. Even if the Court of Appeals construed the proposed decree as a jury demand, his jury fee was untimely and the trial court was within its discretion to deny the jury request.


Turning to the First District Court of Appeals, the court affirmed the trial court’s SAPCR order. Montria Brown, father, and Candus Jack, mother, had a child (If you studied Latin, you might have momentarily expected Montria to be female and Candus male, but not so). Both filed petitions asking to be appointed JMC with primary. Montria appeared pro se, Candus was represented by counsel, and a court-appointed amicus effectively argued for Montria during a multi-day bench trial after which the trial court entered an order appointing both parents JMC, but naming Montria primary (with exclusive rights of education, medical, dental, and surgical). On appeal, Candus challenged the order and the trial court’s failure to make findings of fact and conclusions of law.

On the FF/CL issue, Candus failed to file a notice of past due FF/CL and thereby waived the issue.

The Court of Appeals then reviewed the evidence which included Candus’s allegations of Montria being abusive and Montria’s allegations of Candus’s secreting the child from him. Additionally, Montria, who was employed by Fort Bend ISD as a diagnostician for special needs children, began to suspect the child had developmental issues. The evidence showed Candus delayed consenting to a special needs evaluation such that the amicus obtained a court order for it to proceed. After the child was determined to have autism and speech impairment, the parents agreed the child would participate in an afternoon preschool program specially designed to help the child with his developmental issues. But Candus then refused to take the child to the program. Montria assumed responsibility for taking the child to program. Candus testified at trial she did not believe the child was disabled. She accused Montria of conspiring with the school district professionals. She testified that she took the child to a neurologist who examined him and determined the child was not autistic. Montria testified he was afraid if Candus was primary, the child would not get the necessary special services.

Montria also presented evidence of Candus’ negative behavior during possession and exchanges. There was also evidence the amicus became involved in addressing possession issues and that Candus was repeatedly uncooperative and disrespectful to the Amicus.

This is one of those circumstances where you know which way the ruling will land from the recitation of evidence. After reviewing the Holley best interest factors, the Court of Appeals found the trial court was within its discretion to award Montria primary.