Opinions, June 24, 2016: Informal Child Support Payments

The Texas Supreme Court issued its ruling in Ochsner v. Ochsner, No. 14-0638, a 7-2 opinion with one concurrence and two dissents. At issue was the statutory interpretation of the child support enforcement statute, Tex. Fam. Code §157.263, which the court held permits a trial court presiding over an enforcement action to consider payments that do not comply with the underlying order when determining the arrearages (if any).

Victoria and Preston divorced in December 2001. The trial court entered a decree which ordered Preston to pay Victoria $240 twice a month and $563 directly to Enron’s Kid’s Center for the daughter’s preschool. If the daughter stopped attending EKC, Preston was to pay Victoria $400 twice a month through the Harris County Child Support Office, noting that failure to comply with the time, place, and manner of the payments may result in Preston not receiving credit for the payment.

The child stopped attending EKC and Preston made payments directly to various private schools rather than to Victoria through the registry. Preston paid almost $80,000 in total, more than $20,000 over the amount required under the order.

Almost a decade after the child stopped attending EKC, Victoria filed an enforcement action against Preston, arguing he was in arrears and seeking a money judgment for the balance, interest, fees and costs. The trial court found for Preston, finding he had discharged his child support obligation, in part because the order did not include decretal language requiring him to pay child support after the daughter stopped attending EKC.

The Fourteenth District Court of Appeals reversed, holding that the decree did order Preston to continue to make payments after the child left EKC. On remand, the trial court, presided over by the same judge who rendered the decree, again found Preston was not in arrears. A divided court of appeal reversed, holding the trial court impermissably enforced a private agreement to modify a child support order. The court of appeals also held that the trial court was barred from considering Preston’s direct tuition payments when confirming the amount of arrearages. Preston appealed.

The majority’s opinion focuses on the statutory language of section 157.263:

(a) If a motion for enforcement of child support requests a money judgment for arrearages, the court shall confirm the amount of arrearages and render one cumulative money judgment.
(b) A cumulative money judgment includes:
(1) unpaid child support not previously confirmed;
(2) the balance owed on previously confirmed arrearages or lump sum or retroactive support judgments;
(3) interest on the arrearages; and
(4) a statement that it is a cumulative judgment.

Regarding the statute as a whole, the majority found that “the structure of the enforcement statute confirms the view that a trial court may consider direct payments that discharge the obligee’s own obligation to provide the funds.” The manner of payment specified by the order does not hamstring the enforcement court in determining the amount of arrearages because, according to the majority, “the statute contemplates that the trial court has discretion to consider direct payments either to the other parent or to a third party in deciding whether an arrearage exists.”

The majority distinguished this case from cases where the parties privately agreed to reduce or abate child support payments outside the order (not the case here, as the amount paid was in excess of what was ordered). The opinion also distinguished Office of the Attorney General of Texas v. Scholer, which held that an obligor may not allege estoppel as an affirmative defense in a child support enforcement action.*

In other words, trial courts may consider indirect payments for the benefit of the child when they assess arrearages. In its conclusion, the opinion warned it should not be construed to mean tuition payments always qualify as child support or to encourage parents to make direct payments to bypass the disbursement unit. On the contrary, the majority stated that, under the right facts, the trial court might not abuse its discretion by refusing to consider such payments. The Supreme Court reversed the court of appeals and rendered judgment for Preston.

It will be interesting to see what effects this opinion has on the case law. The opinion states repeatedly that one of the things that distinguishes this from other cases is that the tuition payments were in excess of the court-ordered child support. But the practical effect of this may raise questions for a family law practitioner. For example, while tuition for private school education is clearly a benefit for the child, would payments made for other expenses count as credit against arrearages? If the parent deposited money into an UGMA in lieu of making child support payments, would that suffice? The holding indicates such questions will be in the trial court’s discretion.

Another important question: What will be considered an adequate substitute for a child support payment? In this case, it was tuition payments. But what else might pass muster? If a parent fails to pay child support, but transfers stock to the nonpaying parent, would that suffice?

Justice Guzman, former Houston family law judge, filed a concurrence (joined by Justice Lehrmann) which stated “[T]his case is not about excusing nonpayment or crediting an overpayment, both of which implicate a modification of the amount of child-support arrearages.” Rather, the case is about the trial court’s authority under section 157.162(c)(1) to count support payments not made through the registry. Additionally, Justice Guzman stressed that obligors who ignore the dictates of the order do so at their own peril but, as a practical matter, parents may agree to accept direct payments instead of registry-only payments.

Justice Johnson’s dissent (joined by Justice Boyd) focused on the language of the decree and Preston’s dereliction therefrom, but the majority opinion criticized Judge Johnson’s dissent for focusing too closely on the decree’s language to the exclusion of controlling statutory provisions.

Justice Boyd’s dissent (joined by Justice Johnson) expressed concern that ruling in favor of either party could produce an inequitable result. Preston testified that he and Victoria agreed he could pay the child’s private school tuition in lieu of support. Forcing him to pay a decade of back child support would be onerous and unfair. But Victoria claimed that was not the agreement; it was  Preston who wanted the child to attend private school and she agreed, provided he paid for it–but not that private school tuition was in lieu of child support. If Victoria’s version of the facts are true, she was denied years of child support. Regardless of which parent was correct, Justice Boyd cautioned the order must be followed as written or it would invite either trial courts to impermissibly modify the order or parents to overthrow the court order.


*Scholer also–inadvertently–stands for the proposition that the prettier brief is not always the winning brief.



Opinions, June 30, 2016: Striking Jury Demands

The First District Court of Appeals released its memorandum opinion in In re I.R.H. & Z.T.H., No. 01-15-00787-CV, holding that the trial court abused its discretion in striking a jury demand as punishment for discovery abuses.

Mother and Father filed competing motions to modify. Trial was set for August 11, 2015. On June 30, 2015, Mother’s attorney moved to withdraw and on July 10, 2015, the trial court signed an order finding Mother was properly noticed and allowing Mother’s attorney to withdraw.

At pre-trial the day before trial, Father’s counsel requested that Mother’s jury demand be struck because Mother had failed to comply with discovery and pre-trial document exchange and failed to pay court-ordered amicus fees. The trial court granted the request, striking Mother’s jury demand, though it had been made and the fee paid months before trial. Mother requested a continuance which was denied. The case went to bench trial.

On appeal, the mother asserted two issues: first, that the trial court erred by denying her motion for continuance when, according to her, she had no notice of her attorney’s withdrawal; and second, the trial court erred by striking the jury demand.

The Court of Appeals did not reach the first issue because it sustained the Mother’s second issue. The refusal to grant a timely requested jury trial is harmless error “only if the record shows that no material issues of fact exist and an instructed verdict would have been justified.” Because Mother’s pleading sought to have geographical restrictions placed on the children’s residence–a jury issue–there were material fact issues which precluded a directed verdict. The trial court’s judgment was reversed and remanded with instructions for the case to be placed on the jury docket.

Opinions, June 28, 2016: AJs & Final Orders

The First District Court of Appeals released a memorandum opinion today in Clark v. Clark, No. 01-15-00615-CV which is a combined appeal and petition for writ of mandamus. The opinion essentially doubles down on the Court’s opinion in April in Gerke v. Kantara requiring orders signed by an associate judge to also be signed by the presiding judge or to include a waiver of de novo review.

Raymond and Wendy were divorced in Fort Bend in November 2009. They were both named JMCs in the decree over the child, with Raymond as primary. The matter was transferred to Brazoria County after Raymond moved.

In 2013, Raymond moved to modify the parent-child relationship, seeking to terminate Wendy’s rights. Wendy countered, seeking SMC. A four-day trial was held in November 2014 before Associate Judge Bradshaw. On the record at the beginning of the trial the parties waived their rights to de novo review by the presiding judge, Judge Hufstetler. AJ Bradshaw announced his ruling on the record at the conclusion of trial and stated his ruling would “be in the form of a final order on modification since the parties have waived de novo.” On February 20, 2015, AJ Bradshaw signed an order appointing Wendy as JMC with primary. Raymond filed a MNT.

On May 6, 2015, AJ Bradshaw issued an “Associate Judge’s Report,” which was a letter sent to the parties and stated there was a clerical error in the order and instructed Wendy to submit “an order nunc pro tunc” by June 12, 2015.  Judge Bradshaw also recommended denial of Raymond’s MNT. The record does not show Judge Hufstetler took any action on the AJ’s report and no “order nunc pro tunc” was in the appellate record.

On May 18, 2015 Raymond filed his first petition for writ of mandamus, asking the Court of Appeals order the judge to vacate the final order and order a new trial. But because the Court of Appeals lacks mandamus jurisdiction over an AJ’s actions, the mandamus was dismissed for lack of jurisdiction.

On July 13, 2015 Raymond sent a letter to the presiding Judge Hufstetler, asking him to take some action on the order. The next day, he filed a notice of appeal. Then, on August 27, 2015, he filed the mandamus under consideration, contending Judge Hufstetler abused his discretion by failing to take any action as to the order signed by the AJ. Wendy responded, arguing the order is a final, appealable order because, according to her, the parties executed a waiver of their right of appeal.

In April, the First District Court of Appeals faced similar issues and ruled in Gerke v. Kantara, No. 01-14-00082-CV, 2016 WL 1590847 (Tex.App.–Houston [1st Dist.] Apr. 19, 2015, no pet. h.) that an order signed only by an associate judge was not a final appealable order. This has caused a controversy in the Houston-area family law bar because it appears to mean that any order–past and future–would need to either be signed by the presiding judge or would possibly need to include a written waiver of de novo review to be a final and appealable order. With this one opinion, the Court of Appeals cast a doubt as to the finality of hundreds if not thousands of orders and cases that the parties believed to be final and closed.*

Relying upon and citing Gerke, the Court of Appeals found that because the order at issue in this case is signed only by AJ without any action by the presiding judge, there is no final, appealable order and the Court of Appeals lacks jurisdiction over the appeal and the appeal is dismissed.

The Court of Appeals next turned to the petition for writ of mandamus in which Raymond alleged the presiding judge abused his discretion by refusing to take any action to the order after Raymond brought it to the trial court’s attention.

The Court of Appeals found that, based on the statutory scheme creating the rights and duties of associate judges, “Judge Hufstetler has a non-ministerial duty to take some action on Associate Judge Bradshaw’s order” and that ten months was an unreasonable amount of time for Raymond to wait for Judge Hustetler to take action. Further, by taking no action, Judge Hufstetler “has effectively deprived Raymond of an appellate remedy” because there is no final, appealable order for Raymond to appeal and he cannot file a writ of mandamus as to the AJ’s actions. As such, the Court of Appeals conditionally granted the petition for writ of mandamus.

This ruling would appear to indicate that not only must an order be signed by the presiding judge or possibly include a waiver of de novo reviewto be final and appealable, per Gerke v. Kantara, but a presiding judge may be mandamused for failing to act on the order within a reasonable time.

In other words, the Court of Appeals is extending its Gerke v. Kantara holding by holding it is an abuse of discretion for a presiding judge to not take action on an AJ’s order when the order has been brought to the attention of the presiding judge. These are interesting developments, to say the least. Will this lead to an onslaught of mandamus petitions filed by disgruntled litigants whose presiding judge has not taken action on their AJ’s order? Perhaps the First District felt its docket was a little too light?


*I did not blog about the case at the time because my firm and specifically my colleague Ashley Tomlinson represent one of the parties in that matter.

Opinions, June 23, 2016: Termination, MSAs, & Statutory Interpretation

The Fourteenth Court of Appeals released its published opinion in In re Barre Morris, No. 14-16-00227-CV this morning, denying a writ of mandamus and addressing the question of whether In re Lee applies to termination suits.

In 2004, the trial court named Relator and the child’s mother JMCs. In 2014, the child’s mother signed an affidavit called “Mother’s Affidavit of Voluntary Relinquishment of Parental Rights” in which she stated termination of her parent-child relationship was in the child’s best interest but apparently provided no facts that supported that conclusion and also failed to affirmatively state that she waived and relinquished her parental rights.

In January 2015, Relator filed an “Original Petition to Terminate Parent-Child Relationship,” seeking an order terminating the mother’s parent-child relationship. The only ground alleged was the affidavit, which was attached as an exhibit to the petition. In April 2015, the parents attended mediation and signed an MSA which stated “the terms of settlement are to enter the order of termination as attached as Exhibit A.” The proposed order stated that the parent-child relationship was terminated. In neither the MSA nor the proposed order did the mother agree that termination was in the best interest of the child.

Relator filed the MSA with the court and attended a hearing to prove it up and ask the court to render judgment on the MSA. The only evidence offered at the hearing were the Relator’s name, the child’s name, the mother’s name, the execution of the MSA by the parents and Relator’s request that the trial court enforce the MSA. Relator did not offer testimony that termination of the mother’s parent-child relationship would be in the child’s best interest. The trial court took the matter under advisement and eventually signed an order denying rendition of judgment on the MSA on the grounds that the MSA did not comply with the statutory requirements for termination. Relator filed a petition for writ of mandamus.

The Court of Appeals found the trial court did not abuse its discretion in finding the MSA did not comply with Chapter 161 of the Texas Family Code. Section 161.001 provides that the trial court may order termination of the parent-child relationship if it finds, by clear and convincing evidence 1) the parent has executed an irrevocable affidavit of relinquishment of parental rights; and 2) termination is in the best interest of the child.

The Fourteenth Court of Appeals has recognized that an affidavit of relinquishment suffices as evidence on which the trial court may make a finding that termination is in the best interest of the child, but it has not held that an affidavit of relinquishment requires the trial court to find that termination is in the BIC.

The only evidence offered by Relator was the MSA and the affidavit, but the affidavit included no facts to support the conclusion that termination was in the BIC. There was no testimony by Relator that termination was in the BIC. The trial court could have reasonably concluded Relator had not met his burden under the statute.

The Court of Appeals went on to address whether Tex. Fam. Code §153.0071(e), which normally requires the trial court to enter judgment on a statutorily-compliant MSA, applies to suits to terminate a parent-child relationship under Chapter 161. In other words, does In re Lee have any bearing on this matter?  The Court found that §161.001 requires the trial court to make a determination by clear and convincing evidence that the termination would be in the best interest of the child and, as such, it requires the trial court to make a determination independent of the agreement of the parties. For this reason, the Court said, §161.001 conflicts with §153.0071(e), the latter of which does not state that it applies to all suits affecting the parent-child relationship.

The Court of Appeals also noted other fundamental differences between Chapter 153 modification and Chapter 161 termination, including the fact that the termination of parental rights impacts not just the interests of the parent but also the fundamental liberty interests of the child, as a child is typically not a party to a modification MSA but, in a termination proceeding, is frequently represented by counsel. Further, a termination of parental rights is final, unlike a modification, which can be yet further modified. The petition for writ of mandamus was denied.


Opinions, June 9, 2016: Satan Worshiping, the Fifth Amendment, & Weak Arguments

Today we have two opinions from bizarre, unfortunate cases which make you shake your head in confusion and disappointment. This morning, the Fourteenth Court of Appeals released a published opinion in In re P.A.C. and K.V.C., No 14-14-00799-CV and the First Court of Appeals released a memorandum opinion in Vargas v. Vargas, No. 01-15-00690-CV.

In In re P.A.C. and K.V.C., the Fourteenth Court of Appeals upheld the final order modifying the parent-child relationship. Marisa Lawcasey and Daniel Casey were divorced in May 2012. Both were appointed JMCs of their two children, with Daniel as primary. The trial court ordered Marisa’s access be supervised until the end of July 2012 or until Marisa completed a psychological evaluation, whichever came later. If Marisa completed the evaluation and Daniel did not present good cause to continue the supervised visitation, then Marisa would be entitled to a “step up” order beginning August 1, 2012.

Over the next couple of months the trial court held hearings and Daniel presented evidence of good cause for the supervised access to continue. The trial court signed an order modifying the parent-child relationship on October 4, 2012.

Daniel remarried in June 2013. In 2013 and 2014, both Daniel and Marisa filed original and amended petitions to modify. Marisa sought a SPO and to be designated primary. Daniel sought to be named SMC and that Marisa’s access continue to be supervised.

The matter was tried to a jury in May and June 2014. The jury found Marisa should not be primary, but also found Daniel should not be named SMC. In the final order signed July 23, 2014, the trial court ordered that the parents remain JMCs with Daniel as primary, but also awarded Daniel the exclusive right to consent to the children’s marriages and to represent them in legal actions (rights that had been shared in the prior order). The trial court further ordered that Marisa’s possession continue to be supervised but provided she would be entitled to a step up MSPO if she complied with court-ordered psychological counseling and did not violate the court’s order. Marisa appealed.

In her first issue, Marisa challenged the legal and factual sufficiency of the evidence supporting the jury’s verdict denying her request to be appointed SMC. The trouble is, her pleadings didn’t request to be named SMC and she waived that issue on appeal.

In her second issue, Marisa argued the trial court abused its discretion by awarding the exclusive rights to consent to the children’s marriages and to represent the children in legal actions “where no such relief had been pled by [Daniel].” In his petition to modify, Daniel asked to be named the SMC, but did not specifically ask to have exclusive rights to consent to the children’s marriages and to represent the children in legal actions.

The Court of Appeals held that those rights are enumerated in section 153.132 of the Texas Family Code among the exclusive rights belonging to SMCs. Thus, by requesting to be named SMC, Daniel constructively requested each of the rights that entailed. The Court of Appeals overruled Marisa’s second issue.

In her third issue, Marisa argued the trial court abused its discretion by deviating from the SPO by limiting Marisa’s periods of possession and ordering supervised visitation. In its final order, the trial court found that the presumption that the SPO was in the best interest of the children had been rebutted, rendering an SPO unworkable and inappropriate. Marisa did not request, and the trial court did not make, findings as to why the court found the SPO should be modified. The Court of Appeals then reviewed the evidence in the record which support the finding, including Marisa’s repeated violation of the trial court’s orders, including hostility at exchanges, refusing to shift her visitation times to accommodate the children’s schedules, and complete failure to comply with the rules of the supervised visitation facilities. The court-ordered psychologist diagnosed Marisa with major depressive order and obsessive compulsive personality disorder. The opinion continues reciting evidence that portrayed Marisa in a negative light, including emails and text messages accusing Daniel of worshiping Satan (“Your serving and worshiping Satan is really confusing my children.”; “As we move forward to taking the case to Washington D.C. then you will get your day with the President of the U.S.”).

The Court of Appeals acknowledged that though supervised visitation is rare in JMC cases, it “may be appropriate when dictated by the circumstances.” In summary, the Court of Appeals affirmed the trial court’s order.

In Vargas v. Vargas, the memorandum opinion from the First District Court of Appeals, Nilson Vargas argued the trial court abused its discretion in denying his motion to appoint an attorney ad litem. The Court of Appeals affirmed.

Nilson and Jessica married 1999. Jessica filed for divorce after Nilson admitted he had inappropriate sexual contact with two underage boys. Nilson was indicted for indecency with a child.

The parties entered an agreed order which allowed Nilson supervised visitation but Jessica began to feel less comfortable about the interactions and refused to allow Nilson further visitation with the children.

A month before trial, Nilson filed a motion for appointment of an attorney ad litem which was heard a week before trial. The motion was denied because the trial court concluded the AAL was unnecessary because the parties were well represented by counsel and the court would be able to get “the whole story” through them at trial.

At bench trial, Jessica was the only witness to testify on relevant issues and, based on the foregoing, asked that Nilson be denied any visitation. Nilson was called by Jessica, but he pleaded the Fifth. Nilson did not call any witnesses and did not submit any evidence in support of his argument for visitation with his children. The trial court ordered Nilson could have 32 hours per month of supervised visits.

Nilson’s sole issue on appeal is whether the trial court erred by denying his request to appoint an AAL. The Court of Appeals noted the decision to do so is discretionary and the trial court stated it believed it would be able to get “the whole story” at trial. Nilson argued on appeal that the trial court did not get the whole story at trial because of his inability to testify due to “pending criminal charges” and “exercising his Fifth Amendment rights.” He further argues that there was no expert psychological testimony and that an AAL “could have bridged that gap.”

Kudos to the Court of Appeals for treating this as a serious argument. I doubt I could do it. The Court of Appeals found Nilson’s argument “problematic” because 1) he did not present any testimony from himself or other witnesses, any documents, or any expert testimony of his own; and 2) he was asking the Court of Appeals to conclude the trial court erred in making a pre-trial ruling only by comparing that pre-trial ruling against the subsequent trial, which is improper. In short, the Court of Appeals found the trial court based its ruling on the best interest of the children and did not err.

Opinions, June 2, 2016: An Unsurprising Opinion from the Court of Appeals

The First District Court of Appeals released its memorandum opinion in Rogers v. Rogers, No. 01-15-00224-CV, yesterday. Todd Rogers appealed the trial court’s final decree of divorce from Gina Rogers in two issues: he challenged the trial court’s decision to award the right to make decisions regarding the children’s education to both parents and he challenged a provision in the decree affecting Gina’s obligation to pay child support. The Court of Appeals affirmed with a minimum of fuss.

Both Todd and Gina sought to be named primary JMCs of the couple’s two children, five-year-old V.R. and three-year-old A.R. In the temporary orders signed by the trial court, they were named JMC, with Todd as primary. At jury trial in August 2014, the jury determined Todd should be primary. The remaining issues–child support, P&A, and division of the estate–were submitted to the trial court in September and October, 2014. The trial court entered an order captioned “Court’s Ruling” on January 13, 2015, which divided the couple’s property, set the amount of child support to be paid by Gina to Todd, and determined the remaining P&A issues. The order also included a judgment against Todd for $25,000.00 to be paid by February 1, 2015 “or is susceptible to offset against the child support of Gina Marie Rogers until paid in full.”

The trial court also signed a clarification order on January 28, 2015 which clarified the $25,000 judgment.

The final decree was signed in September 2015 and also carried more detailed language regarding  the $25,000 judgment. As with the “Court’s Ruling” order, the final decree abated Gina’s obligation to pay child support and granted her credits against the $25,000 judgment if Todd failed to pay the judgment by a date certain.

On appeal, Todd challenged: 1) the trial court’s decision to award the right to make educational decisions for the children to both parents because, he argued, it conflicted with the jury’s finding that he should determine the children’s primary residence (??); and 2) a provision in the decree which abated Gina’s child support payments in the event Todd didn’t pay the $25,000.00 by a date certain.

Incidentally, a reporter’s record was never filed. You probably know where this is headed.

Not surprisingly, the Court of Appeals overruled Todd’s first issue, finding awarding the decision to make educational decisions to both parents is commonplace and did not conflict with the jury’s findings.

As to the second issue, the Court of Appeals disagreed with Todd’s argument that allowing the child support abatement to stand would allow a party to “negate their entire support obligation by claiming that the other party owed them money as a result of the court prior property division.” On the contrary, the Court of Appeals held, “Gina is ordered to pay monthly child support to Todd. Her child-support payments are only abated in the event that Todd fails to do as he is ordered in the decree.”

Additionally, without a reporter’s record, the Court of Appeals had little evidence to consider beyond the decree which indicated the $25,000 judgment was awarded as to Gina for Todd’s fraud on the community estate. Without a reporter’s record, the Court of Appeals must assume the evidence presented was sufficient to support the trial court’s order.