First order of business: I was sad to hear that former Texas Supreme Court Chief Justice Jack Pope passed away last weekend at the age of 103. I had previously blogged on Chief Justice Pope and his influence in family law as he was the author of the touchstone enforcement case Ex parte Slavin. Incidentally, Slavin was issued 50 years ago today. I have often thought of resuming blogging about all cases that cite Slavin, but I have a hard time keeping up with the blog as it is sometimes.
Case in point, I have not blogged on the Texas Supreme Court’s guidepost decision on the “acceptance of benefits” doctrine that came out a month ago (Kramer v. Kastleman) because I wanted to review it a few times and think about it. Stay tuned for that one.
On to the recent First and Fourteenth cases. On February 24, 2017, the Fourteenth Court of Appeals released a published opinion in In re S.J., No. 14-17-00054-CV, a mandamus proceeding regarding temporary emergency jurisdiction under Tex. Fam. Code §152.204. Full disclosure: my firm and I represented the petitioner in this case and the estimable Donn Fullenweider, Grady Reiff, and Sallee Smyth represented the Real Party in Interest. I’m blogging about it because it is a published opinion and it weighs in on an issue that was arguably unclear after the First District’s opinion in In re Salminen regarding whether or not a risk of international abduction is sufficient grounds to trigger temporary emergency jurisdiction under section 152.204. In In re Salminen (which my firm and I also handled), we argued to the trial court that a risk of international abduction was sufficient evidence of threat of abuse or mistreatment of a child to trigger temporary emergency jurisdiction under section 152.204. The trial court agreed, exercised TEJ, and issued temporary orders which granted our client temporary SMC. The mother filed a petition for writ of mandamus which the First District Court of Appeals granted, finding that the father had not established any of the grounds for TEJ under 152.204. The way I read the opinion in In re Salminen, the First District held that even if a trial court finds that a parent is an abduction risk, the statute requires a showing of mistreatment or abuse (or a threat of mistreatment or abuse) and that a risk of abduction does not meet the statutory language sufficient to trigger TEJ.
The Fourteenth Court of Appeals agreed, looking to section 261.001 of the Family Code which states that abuse includes “mental or emotional injury to a child that results in an observable and material impairment in the child’s growth, development, or psychological functioning” or “physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child.” Tex. Fam. Code § 261.001. At trial (which was the same trial court as in In re Salminen) the father and the father’s counsel conceded on the record that the mother was a good parent who had never been physically violent with the child. Given this admission, the only basis for TEJ was the purported threat of abduction but the Fourteenth joined the First, Fifth (Dallas), and Twelfth (Tyler) Courts of Appeal in holding that mother’s moving the child to Texas without the father’s knowledge consent “is not sufficient, by itself, to prove that it was ‘necessary in an emergency to protect the child because the child… is subjected to or threatened with mistreatment or abuse.'”
Also on February 24, 2017, the First District Court of Appeals released its memorandum opinion in Gallis v. Papadogiannis, No. 01-15-00794-CV, which clocks in at a whopping 54 pages. Despite its mammoth length, the crux of the appeal is the interpretation of the parties’ agreed final decree. The Court of Appeals affirmed in part and reversed and rendered in part.
The parties divorced in 2011. Their agreed final decree divided the property, appointed them JMCs with the mother as primary and father having a SPO. Father was ordered to pay $1,500 in child support per month, plus monthly spousal support, the mother’s health insurance, the minor child’s health insurance, the minor child’s uninsured medical and the college expenses of the minor and adult children.
In 2013, the father filed a “Original Petition to Modify Suit Affecting the Parent-Child Relationship, Damage Suit for Parental Alienation and Interference with Possessory Interest in Child, and Suit for Breach of Contract” in the trial court. This appears to have kicked off a campaign of motion filing for the next couple of years. Seriously, the recitation of procedural history reads like the Catalogue of Ships from Book 2 of The Iliad.
The major issue on appeal concerned provisions for the mother’s purchase of a house. Under the decree, the mother had 18 or 24 months (there are conflicting provisions in the decree) to find and purchase a house costing less than $700,000; the father would pay the full purchase price but he would be awarded a 20% interest in the house. The father would also pay insurance, the water bill, and property taxes on the house until either the child aged out or the mother sold the house, whichever occurred first. If the house chosen by the mother costs less than $700,000, the father was to pay the difference between the purchase price and the $700,000 to the mother.
Also, the decree provided that if the mother found and purchased a house within the 24 months, the father’s monthly spousal support payments would decrease from $5,000/mo to $4,000/mo.
The father alleged that he had put up $681,000 of the $700,00 required under the decree but, after 26 months, the mother had not found or purchased a house. At trial, the father requested the $681,000 be returned to him and that the mother be ordered to pay his attorney’s fees. The mother requested that she be awarded the money to purchase a house. She also stated she would still grant the father the 20% interest he was due under the decree.
The father testified that the mother’s attorney had drafted the decree but he had helped (though he was pro se when the decree was drafted). He testified that he understood the decree to say that the mother had 24 months to select a house to buy which would trigger his obligation to provide up to $700,000 for the purchase and he would receive a 20% interest in the house. He testified that the mother asked him for house money in July 2012 and he paid her $560,000 at that time though she did not select a house. He emptied his 401(k) and savings and that, within 24 months after the 2011 decree was signed, he had paid the mother 97% of the $700,00 (i.e. $681,000). He testified he regarded the 20% as a real estate investment which would accrue value. He testified he was damaged by the mother’s failure to purchase a house because it meant his monthly spousal support obligation would not decrease.
The mother testified that she moved to New York on July 11, 2013, just shy of two years after the divorce. She testified that during the almost two years she lived in Houston after the divorce, she never indicated to the father that she had selected a house to purchase. She instead decided to wait until he had delivered the entire $700,000 and then purchase a house. She made two offers on houses in New York after the 24 months post-divorce period had passed, but they were not accepted. She took the deposits from those offers and put them into her attorney’s IOLTA account.
In interpreting the decree, the trial court ruled: (1) the father was not obligated to pay $700,000 for the purchase of a house because the mother did not purchase a house within 24 months of the decree, and (2) after the 24-month house-purchase window had closed, the father was only obligated to pay $4,000 per month in spousal support rather than $5,000 a month. The Court of Appeals affirmed the first ruling but disagreed with the second. Specifically, the trial court found that the mother breached the decree by failing to purchase a house within 18 or 24 months but the Court of Appeals found she was under no obligation to purchase a house because the decree included contingencies which contemplated the mother would have the choice of which action to take. Also, the trial court decided the father’s monthly spousal support obligation automatically decreased from $5,000 to $4,000 24 months after the decree was entered, but the Court of Appeals said there wasn’t any language in the decree to support that conclusion.
Thus, the Court of Appeals ruled the trial court was correct in concluding the father did not owe the mother the $700,000 because his obligation was never triggered but incorrect in reducing the monthly spousal support.