Slavin Marches On: Opinions, Aug. 22, 2017

Both the First and Fourteenth Courts of Appeal released memorandum opinions today, the First’s in a habeas corpus proceeding and the Fourteenth’s in a hotly contested custody suit.

The First’s habeas corpus opinion presents a textbook case of how ambiguous language in a decree should prevent a contempt finding. In In re Campbell, No. 01-17-00251-CV, the relator challenged the trial court’s orders finding her in contempt, awarding attorney’s fees to her ex-husband’s counsel, and imposing community supervision. Ex-husband Randall Gibson moved to enforce possession and access provisions of the parties’ final decree. The trial court found three violations of the decree and confined Campbell. After six days in confinement, she moved to be released and the trial court granted the release but suspended the balance of her confinement, placing her under community supervision for two years. Her conditions of suspension required Campbell to, inter alia, report to a community supervision officer on a monthly basis, permit the officer to visit her home and work place, and pay a $25/mo community supervision fee. Campbell later moved for reconsideration of the contempt judgment, which the trial court denied. Campbell filed this writ of mandamus, which the COA construed as a habeas corpus, requesting the COA order the trial court to vacate its contempt order as void.

Campbell challenged the contempt order on two grounds: 1) some portions of the final decree are too vague or ambiguous to be enforced by contempt; and 2) the evidence adduced at trial failed to support one or more of the essential elements to support a finding of contempt.

Campbell argued the trial court erred by excluding the testimony of a witness (a woman named Jennifer Yeggoni), but the COA observed errors in the admission of evidence generally are not reviewable by a petition for writ of habeas corpus (the exception to the rule is where a trial court excluded evidence so significant it prevented the relator from presenting a defense). But apparently Campbell didn’t try to call her witness until after the judgment, when it was too late. It appears from the opinion this is the extent of the evidence issues.

Campbell was more successful with her challenges to the contempt violations. First, the trial court found her in contempt on the following basis:

On Thursday, October 20, 2016, during the regular school year,
[Campbell] picked up the children from school during [Gibson’s]
period of possession.

The decree provided that the ex-husband has the right to possess the children after they are dismissed from school each Wednesday until school resumes on Friday; when the children are dismissed from school on Wednesday afternoons, Campbell must surrender them to Gibson at their respective schools. Gibson may designate a third party to pick up the children in his place. The decree provides that either Gibson or his designee must be present when the children are picked up from the school. The decree is silent as to what should happen if neither Gibson nor his designee are present.

Gibson testified that he was unable to pick up two of his children on Thursday, October 20, 2016 because he was on an overnight field trip with the third child. He designated a third party (Yeggoni) to pick up and care for the children that day. Instead, Campbell picked them up from school, had them for a bit, and later dropped them off at Yeggoni’s house, where the children stayed overnight. Campbell admitted at trial that she picked the children up from school that Thursday and explained that Yeggoni was not there. Gibson conceded he did not know whether or not Yeggoni was at the school to pick up the children.

The COA found that the evidence conclusively established that neither Gibson nor his designee was there to pick up the children. Campbell, the COA observed, testified she was present and did not know if Yeggoni was. “While the trial court sitting as factfinder generally may disbelieve a witness’s testimony in whole or part, it cannot simply disregard the uncontradicted testimony of an interested witness that is, clear, positive, and direct, otherwise credible, free from contradictions and inconsistencies, and readily could have been controverted.” Campbell’s testimony about Yeggoni’s absence, the COA held, met this standard and Gibson could have controverted this evidence if it were untrue by, for example, calling Yeggoni as a witness.

The decree required Gibson to arrange for a third party to pick up the children in his absence, which he evidently did not do, and the decree was silent as to what would happen in such cases. As such, the decree was ambiguous on this point and could not support a finding of contempt. The COA sustained Cambpell’s challenge to this violation.

For the second violation, the trial court found Campbell willfully disobeyed the decree as follows:

On Tuesday, November 22, 2016 between the hours of 6:00 p.m. and
8:00 p.m. [Gibson], who was not in possession of the children,
attempted to Skype to [the] children. [Campbell], the party receiving
the call, did not return the call by ordinary telephone methods (cellular
or land-line telephone). [Campbell] took [] purposeful actions to be
away from a computer or phone with Skype or Facetime capabilities to
thwart the spirit and intention of making it possible for [Gibson] to have
a Skype/Facetime call with the children once per week.

Campbell argued the decree did not require her to place a return call if Gibson was unsuccessful in contacting the children via Skype. She also argued there was no evidence she purposefully avoided her telephone and computer to stymie Gibson’s contact with the children. The decree permitted Gibson to place a Skype call or, if the children are not near a Skype-supporting device, by telephone. The decree also instructed Campbell could not take purposeful actions to be away from computers or phones during the call “to thwart the spirit and intention of making it possible” for Gibson to have communication. If the call is missed altogether and Gibson leaves a message, Campbell “shall assist and encourage the children in returning the call in a timely manner.”

Gibson testified that he tried to call the children by Skype on Tuesday November 22, 2016 between 6 and 8 pm, was unable to reach them, and left a voicemail. Just before 10 pm, he sent a text message to Campbell complaining of not being able to communicate with them but she did not respond, nor did it appear from the text-messaging program that she read the text. The next day, he was able to speak to the children. Campbell agreed she did not call Gibson back on Tuesday but testified that she generally tries to have the children return Gibson’s calls in a timely fashion.

None of the evidence, the COA found, supported the contempt finding. The decree contemplated there would be times when Gibson and the children did not connect and Campbell’s obligation in such circumstances was to “assist and encourage the children in returning the call in a timely manner.” In other words, she had no obligation to call Gibson back at all, or to do so necessarily the same day. The COA also agreed with Campbell that there was no evidence as to why they missed Gibson’s call that night. Counsel did not ask Campbell any questions about the circumstances of the missed call. Nor did the record support an inference Campbell purposefully thwarted Gibson’s call. The COA sustained Campbell’s objection.

Regarding the third violation, the trial court found Campbell in contempt for willfully violating the decree as follows:

On Saturday, November 26, 2016 between the hours of 2:00 p.m. and
8:00 p.m. [Gibson], who was not in possession of the children, called
the children. [Campbell] failed to assist and encourage the children in
returning the call in a timely manner.

The decree states that Gibson may call the children each Saturday between 2 and 8 pm when they are in Campbell’s possession. If the children miss his call and he leaves a message, Campbell “shall assist and encourage the children in returning the call in a timely manner.”

Gibson testified he tried to call the children three times between 2 and 8 on November 26, 2016 unsuccessfully. He left Campbell a voicemail and sent her a text message asking her to have the children call him back. The text message program indicated Campbell did not read the text. Campbell testified the children were staying with her parents that weekend. She conceded she did not assist the children to return Gibson’s call while they were with their grandparents but once they returned, they called Gibson back on Sunday.

“Timely,” the COA noted, is an inherently ambiguous term which was undefined by the decree. Because of the inherent flexibility of the term, the decree did not unambiguously inform Campbell of her obligations and thus could not serve as the basis for contempt. I suppose one could argue that “timely,” as it’s used in the decree here with regards to the Skype and telephone calls, suggested that the return call should be in the window of time provided in the decree, but the decree did not specifically say so and reasonable, alternative interpretations (as urged by Campbell here) are the death of contempt claims.

Because the decree did not support the three violations, the COA granted the writ of habeas corpus and declared the contempt order void.

In In re M.S.G., No. 14-16-00236-CV, the mother of the child argued the trial court erred in appointing the biological father as primary JMC and failing to order the father to pay retroactive child support.

The child was born in May, 2014. The parents were not married. Father filed a petition to establish paternity in December and to appoint him primary SMC. Mother counterclaimed, requesting the court appoint them both JMC with her as primary. Both parties amended their petitions repeatedly.

A bench trial was held in December 2015 at which father testified that he was concerned about mother’s excessive drinking and that her drinking caused him to move out from the apartment they shared. Mother admitted that she made a “blatantly false report” to the police accusing father of assault. She was arrested and later pleaded guilty to filing a false report. Father admitted he called CPS (on the advice of counsel) when the mother texted him that “there is no food here” and that the child was hungry and screaming. He also called the police to conduct welfare checks because he received text messages from the mother that she was having a hard time and she couldn’t do it and didn’t want to be a mother.

In January 2015, they reconciled and moved back in together until June 2015. He testified that after he moved out, he helped mother out financially. He also testified that in July 2015 he moved in with another woman who has a child and that child and his child get along well and have bonded.

Mother testified that it was Father who was drinking excessively and had anger issues. She also testified that she has been the child’s primary caretaker and since birth and that the father had not been very involved with the child. She denied father provided the financial assistance besides paying for day care and medical insurance. Mother testified that she had been legally married to a registered sex offender for ten years but that she had left him two months into that marriage and had not seen him in many years. She testified that divorce was finalized in July 2015, but produced no decree or evidence to establish that.

Mother testified that father had attempted suicide in the past, which father denied. Mother also made a number of serious allegations about father’s sexual history, including molestation when he was a child. Mother called father’s sister as a witness and she corroborated a lot of mother’s claims, including multiple suicide attempts, that father should not be the primary custodial parent because he has anger issues and is mentally unstable, and that she witnessed father sexually molesting their stepsister. Mother also called an ex-girlfriend of father’s who also did not have anything nice to say about him either.

The child’s paternal grandfather testified in favor of the father, denying claims about father’s mental instability, molestation claims, or that he spent much of his childhood in foster care. The father of father’s current girlfriend and the current girlfriend also testified in his favor.

At the conclusion of evidence, the trial court appointed the parents as JMCs with father as primary. Mother filed a motion for new trial which was denied.

Mother’s two issues on appeal are that the trial court abused its discretion by 1) appointing father primary JMC; and 2) failing to order father to pay retroactive child support.

As to the first issue, the COA noted that custody disputes are inherently fact-intensive and that the trial court is best able to observe and assess the witnesses’ demeanor and credibility. The COA defers to the trial court’s resolution of underlying facts and credibility determinations. For example, the trial court found that the mother’s allegations of father having an unstable mental history “were not supported by credible evidence.” The trial court also found that mother’s allegations of father having a history of inappropriate sexual conduct with a female while both were minors were also not supported by credible evidence.  To make a long story short, the COA marshaled the evidence which supported the trial court’s determinations and deferred to the trial court’s conclusions on these disputed issues and the credibility of the witnesses. The issue was overruled.

Regarding the second issue, retroactive child support is reviewed for an abuse of discretion. The COA found there was evidence in the record which supported the trial court’s conclusion the father should not be ordered to pay child support. The issue was overruled.


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Name Changes & Alleged Bigamy: Opinions, August 10, 2017

The Fourteenth Court of Appeals released two interesting published opinions yesterday, one on changing a child’s name and the other on invalidating a marriage due to an undissolved previous marriage.

In In re J.N.L., No. 14-16-00325-CV, the father of the child at issue appealed the trial court’s judgment granting petitioner’s request to change the name of the nine-year-old child. The mother and father had been married at one point, but they had divorced; the mother had remarried and filed a petition to change the child’s last name to the step-father’s last name. At the time of trial, father was incarcerated after being convicted of aggravated robbery and is not expected to be released until 2024. He is also a registered sex offender. He testified at trial via videoconference.

On appeal, the father asserted two issues: that the trial court lacked sufficient evidence to grant the request and that it abused its discretion in excluding some evidence.

The COA considered the evidence in support of the factors to be considered in a name change case:

(1) whether the name change would reduce anxiety, embarrassment, inconvenience, confusion, or disruption for the child, which may include parental misconduct and the degree of community respect (or disrespect) associated with the name; (2) whether the name change would help the child identify with a family unit; (3) whether the parent bearing the name the child will have assures that she will not change her name in the future; (4) the length of time the child has used a name and the level of identity the child has with the name; (5) the child’s preference; and (6) the parent’s true motivations for requesting the name change.

The COA examined the evidence in support of each of the elements and determined the evidence as sufficient and overruled father’s issue.

As for the second issue, the COA found the record was incomplete and the father had failed to provide a record which showed he proffered the excluded evidence. The trial court was affirmed.

In Zewde v. Abadi, No. 14-16-00536-CV, the husband appealed from final decree of divorce. Husband and wife were married in January 2014 and their son was born in June 2014. In February 2015, the husband filed an Original Petition to Declare Marriage Void, claiming the wife never properly divorced her prior husband and thus their marriage was void. The wife filed a counter-petition for divorce.

The trial court bifurcated the case, deciding the marriage validity issue on February 15, 2016 and then the divorce issues on May 11, 2016. The husband was represented by counsel in the first stage but was pro se during the second.

During the marriage validity trial, the wife testified that she married her first husband in 2002 in Eritrea, they had two children together, and then they were legally separated in an Italian court proceeding in 2009. The Italian court ordered the first husband to pay child support. The wife initiated pro se divorce proceedings in her native Eritrea in 2013. The record contained a Eritrean divorce decree dated November 12, 2013 and an English translation thereof. The Eritrean decree ordered the wife to announce the proceedings in a local newspaper and that notice appeared in the newspaper on October 22, 2013. The husband produced a copy and translation of the notice of the Eritrean proceedings published in the Eritrean newspaper. The notice states the first husband should be present in the court at 8 a.m. on November 13, 2013. But the decree was granted November 12, 2013. The first husband did not appear in court and the wife took a default judgment. The Court of Appeals noted neither side presented the trial court with any Italian or Eritrean law.

The husband introduced an Italian court decree which indicated proceedings in Italy were ongoing in 2013. This decree was not a divorce decree but a decree on issues related to separation including possession, child support, and damages. The trial court denied the husband’s request that his marriage to the wife be declared void.

The second phase, the divorce phase, began May 11, 2016. Evidence of violence by the father was presented. At the conclusion of trial, the trial court named the wife as SMC and the father as PC. The father was awarded limited possession rights until the child turned three years old and then an SPO would take effect. The trial court awarded child support, retroactive child support, and an additional monthly sum for medical expenses. Father appealed, asserting five issues.

In his first and fifth issues, he challenged the sufficiency of the evidence to support the validity of the marriage determination. In Texas, a marriage is presumed valid and when a person is alleged to be married to more than one person, the most recent marriage is presumed valid against any prior marriage. Thus it was the father’s burden to establish his marriage to the wife was invalid.

Essentially, since neither party presented any evidence on Italian or Eritrean marital law, the husband was unable to establish that the divorce in Eritrea was invalid, either because the notice was improper or because the Italian proceedings were ongoing. The COA overruled the issues.

In his second issue, the husband argued the trial court erred in denying a pretrial motion but the COA overruled the issue because the trial court denied the motion because the husband failed to provide sufficient notice of the motion.

In his third issue, the husband argued the trial court erred in excluding certain exhibits at trial which the trial court excluded on the basis of the wife’s hearsay objection. Because the husband did not offer any argument at trial or on appeal as to why the exhibits were not hearsay, the issue was overruled.

In his fourth issue, the husband argued the trial court erred in considering alleged misrepresentations made by the wife’s counsel but the record did not reflect that the husband objected to the statements in trial and thus they were not preserved for appeal. The trial court was affirmed.