2 Weddings, 2 Divorces, & a Bill of Review: Opinions, Sept. 7, 2017

Not surprisingly, there appears to have been a backlog caused by Harvey, with both the First and Fourteenth COA issuing a dozen or more opinions each today.

The First released one family law memorandum opinion in Grant v. Grant, No. 01-16-00581-CV, regarding bills of review. That sounds boring but the story is not. Howard and Ariann were married and divorced twice. They were first married in 1994. Ariann filed for divorce in 2010. While the divorce was pending, the parties continued living in the same marital residence. Also while the divorce was pending, Howard was convicted of health-care fraud and sentenced to three years in prison. They tried to set trial for before he shipped off to Club Fed. About a week before trial, Ariann’s lawyer came to the house to depose Howard because he had an ankle monitor on and generally was not allowed to leave the premises. The notice of trial was sent to Howard who was pro se at the time. The COS stated it was sent to him by CM/RRR and U.S. regular mail. Ariann appeared for trial, but Howard did not. The trial court awarded her property he now contends was his separate property.

A year after the divorce, and while Howard was still incarcerated, they remarried. While Howard was in hoosegow, Ariann sold some of the property awarded to her in the first divorce (which Howard now says was his separate property). In late 2015, they divorced for the second time. After the decree for the second divorce was entered, Howard filed a bill of review attacking the decree from the first divorce.

At the hearing on the bill of review, Ariann testified Howard had actual notice of the upcoming first trial date and that he could have gotten permission to leave the house to appear in court. Howard alleged that they were sleeping in the same bed, Ariann did not inform him of the trial date and that she misled him to believe she had decided not to pursue the divorce. The trial court denied the bill of review and Howard appealed.

The COA noted that the bill of review was filed more than four years after the first decree was entered and that it would thus be time-barred unless Howard established extrinsic fraud. Howard alleged she committed fraud in two ways: 1) misleading him by waking up, kissing him on the cheek, and going to court to obtain a default judgment when she knew she never told him the case was set for trial; and 2) by providing the court with the address of the marital residence instead of prison in Beaumont because she knew he “was not going to be at the marital residence.”

Taking the second first, the COA found that to show extrinsic fraud, Howard would have to show that Ariann knowingly but falsely certified to the court his last known address after he was incarcerated but before judgment was rendered. “Howard did not make this argument or show that this is what happened.” The issue was overruled.

Secondly, the COA noted he presented no evidence of Ariann’s supposed misleading and thus failed to establish extrinsic fraud.

Because the bill of review was time-barred (because Howard did not establish extrinsic fraud), the COA did not reach the merits of the bill of review issue.

The Fourteenth COA released two memorandum opinions, In re D.A., No. 14-16-00491-CV, and In re C.A.W. and C.H.W., No. 14-16-00768-CV, both affirming the trial courts.

In In re D.A., the father challenged the award of attorney’s fees in a modification order after bench trial. But the record on appeal did not contain a complete reporter’s record and the COA must presume the omitted evidence supported the order.

In In re C.A.W. and C.H.W., the father appealed the trial court’s order granting a child support modification in favor of the mother. Mother and father were divorced in 2013 after signing an MSA. They were named JMCs and father was ordered to pay $1,875/mo in child support, with a step down to $1,562.50 when the oldest turned 18.

C.A.W. aged out and mother filed a modification seeking above-guideline support for C.H.W. At bench trial in August 2016, the following facts were adduced:

C.H.W. resided with Mother. Father stopped fully exercising
his periods of possession of C.H.W. Mother’s net monthly income is $2,116.29 and
Father’s net monthly income is $23,200. C.H.W.’s needs were itemized in Exhibit
6, which is entitled “Child[]’s Needs List” (the “List”). The List also itemized the
anticipated monthly expenses for C.H.W.’s needs while residing with Mother. The
List reflected that C.H.W.’s needs totaled $5,291.65 per month. Mother did not have
the ability to meet C.H.W.’s monthly needs exceeding $1,700.

At the conclusion of trial, the trial court announced its finding that increasing child support was in the child’s best interest. On August 30, 2016, the trial signed an order for father to pay $3,500/mo in child support.

In his first issue on appeal, father argues the trial court abused its discretion in ordering above-guideline support because there was “no evidence of proven needs.” Specifically, the father argued that the mother had “merely shown in the trial court what her monthly expenses may be at this time” and failed to establish “that these expenses exist because of some need for the child.” The COA disagreed and found that the list of child’s needs clearly segregated the child’s expenses from the mother’s and that there was more than a scintilla of evidence establishing the child’s needs. The issue was overruled.

In his second issue, the father argued the trial court abused its discretion in ordering a modification where there was “no evidence of a material and substantial change.” To prevail in a modification suit, the petitioner must establish either that there was a material and substantial change or that more than three years have elapsed since the decree was entered and the monthly child support obligation differs from the amount that would be awarded under the statutory child-support guidelines by 20% or $100. Because this case met the latter, the issue was overruled.

 

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