Modification Backfire: Opinions, June 22, 2017

The Fourteenth Court of Appeals released its memorandum opinion in Koenig v. Koenig, No. 14-16-00319-CV, affirming the modification entered by the trial court. The case serves as a cautionary tale about filing a modification when the tables may be turned on the first parent to file.

Mother and Father were divorced in 2013 and both were appointed JMCs, with Father as primary. Subsequently, Father filed a mod requesting Mother’s access be denied or supervised. Mother filed a cross-mod, asking that the Father be denied access to the children and that she be appointed SMC. Father nonsuited his mod and the case went to trial on Mother’s claims.

During a trial to the bench, the court heard testimony from a psychologist and an investigator appointed to conduct a social study. In its final order, the court ordered the parties remain JMCs, but that Father have a step up to an SPO. In other words, even though the father had been the first to file a mod asking the mother’s access be denied or strictly limited, he was the one who wound up with curtailed visitation. Father appealed.

In his first issue, Father alleged legally insufficient evidence and that the trial court erred in relying on the psychologist’s expert testimony. In his second issue, he alleged he received ineffective assistance of counsel during trial. In his third issue, Father contended his due process rights were violated with respect to notice of a hearing on temporary orders.

Taking the last first, the Court of Appeals overruled the third issue because the COA lacks jurisdiction to consider challenges to temporary orders because mandamus is the appropriate vehicle to attack a TO.

Father’s first issue is really two separate inquiries: the psychologist’s expert qualifications and the sufficiency of the evidence. Addressing the expert’s qualifications first, the COA found that the expert has a doctorate in developmental psychology, has a clinical practice in which she works with children and families, and that a large part of her practice includes performing psychological and custody evaluations for courts. Not surprisingly, the COA overruled the father’s objections to her qualifications.

The COA also found that there was some evidence of a substantive and probative character to support the judgment. Specifically, there was evidence of the father’s attempt to alienate the children, including evidence that the father did not notify the mother of the children’s activities and events, the children called her by her first name, the children were demeaning to her after the divorce, the children’s school apparently believed the father was an SMC, etc. The psychologist recommended the father complete counseling for parental alienation. The COA overruled the father’s legal sufficiency challenge.

The father’s third issue was overruled because ineffective assistance of counsel challenges are generally limited to criminal cases.


Non-Parent Standing in a Modification, Docket Sheets, & Immigration Status: Opinions, June 1, 2017

The First District Court of Appeals released a memorandum opinion and a published opinion last Thursday. The published opinion runs forty-one pages and concerns non-parent standing in a SAPCR and the proper standards to apply. The memorandum opinion is notable because of appellant’s allegations regarding her immigration status bearing on the custody determination.

In Rolle v. Hardy, No. 01-16-00402-CV, the mother of the two children at issue had died of cancer. Appellant is the maternal uncle of the children; Appellee is their father, who had previously been named a JMC with the mother. The uncle filed a modification which was dismissed by the trial court. The sole issue on appeal is whether the uncle established he had standing under Tex. Fam. Code §102.004(a)(1), Standing for Grandparent or Other Person.

The trial court had held a hearing on standing at which the uncle, the father, and numerous other friends and family members of both the mother and the father testified. The factual recitation runs about ten pages but it can be summarized by stating a number of people testified as to the merits of the uncle in the children’s life and made serious allegations concerning the father’s fitness for parenting. (It must be said there was testimony in the father’s favor as well)

Under §102.004(a)(1), a grandparent, uncle, or aunt can have standing to file suit requesting managing conservatorship “if there is satisfactory proof to the court that… the order requested is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development.” The court of appeals noted that this standing provision is unique to family law because it requires proof of specific facts that may be relevant to the underlying case.

The court of appeals looked to the trial court’s docket sheet as evidence of its determination that the uncle did not meet his burden in establishing standing. The COA determined the trial court applied the wrong standard because the docket sheet indicated that the trial court required the uncle to provide “satisfactory proof that an order appointing him as the sole managing conservator of the child[ren] is necessary because the children’s present circumstances in the care of [the father] would significantly impair [their] physical or emotional development.” (emphasis added by COA) This, the COA held, was not accurate because it did not reflect the uncle’s pleadings or the requirements to establish standing under section 102.004(a)(1). The uncle had to establish the father‘s care of the children as SMC would significantly impair their physical health or emotional development, not that he, the uncle, should be appointed SMC instead.

Additionally, the COA found the trial court focused on the present circumstances of the children and improperly de-emphasized the past actions and circumstances of the parties, particularly the father’s extensive criminal history.

The COA sustained the uncle’s complaint on appeal and remanded for further proceedings in light of the opinion.

In Turrubiartes v. Olvera, No. 01-16-00322-CV, the mother appealed the trial court’s decision awarding the father SMC and PC to the mother. The evidence showed that, inter alia, the mother was not a legal citizen of this country, that she had been living here peaceably for six years, that she had secreted the children from their father, refused to tell him where they were living and denied him access to the children, and that the mother’s brother-in-law approached the father and threatened to kill him or have him killed if he attempted to visit the children. On appeal, the mother argued that the trial court improperly based its ruling on her immigration status but the Court of Appeals found that there was sufficient evidence in the record to support the SMC/PC finding.

UPDATE: The First COA has withdrawn its original opinion in Turrubiartes v. Olvera and issued a new one which reaches the opposite result.