No-Evidence MSJ in a Modification Upheld: Opinions, Oct. 27, 2017

The Fourteenth Court of Appeals released a memorandum opinion in In re A.J.L. and V.C.L., No 14-16-00834-CV, affirming the trial court’s granting of a no-evidence MSJ in a modification.

Mother and father divorced in 2010. In 2013, the order was modified. In August, 2014, the mother sued to modify the 2013 order; father counter-petitioned.  The father also filed a motion for traditional and no-evidence summary judgment, apparently arguing mother’s motion to modify failed to assert how there had been a material and substantial change in the circumstances of the child. The no-evidence MSJ was granted and the mother appealed, arguing the MSJ was legally insufficient.

In her first  argument, mother alleged father’s MSJ was deficient because it included a reference to Tex. Fam. Code 156.101(1) instead of 156.101(a)(1). The COA disagreed, finding such a typo was not fatal, and overruled the issue.

In her second argument, the mother claimed that the father’s motion referenced the wrong timeframe. That is, father’s MSJ asserted that mother had no evidence of a material and substantial change since the trial court’s 2013 order. The mother argued that because the 2013 order was based on an MSA, it should be from the signing of the MSA to the filing of mother’s counter-petition, as sections 156.101(a)(1) and 156.401(a-1) require evidence of a material and substantial change “since the earlier of… the date of the rendition of the order… or the date of the signing of a mediated… settlement agreement on which the order is based.” This, mother argued, showed father failed to move for no-evidence summary judgment  on “one or more essential elements of a claim or defense” as required by TRCP 166a(i). The COA disagreed, finding that though father’s motion should have more accurately reflected the statute, it declined to hold that father’s no-evidence motion was legally insufficient on this ground. Father’s motion included the full text of section 156.101(a)(1) and incorporated the text into the challenged element by asserting that the mother had no evidence of a material or substantial change of circumstances “as contemplated by Texas Family Code section 156.101(1).” This, the COA found, was sufficient.

In her second issue, the mother argued the trial court erred in granting the no-evidence MSJ because the record evidence raised a genuine issue of material fact as to whether there was a material and substantial change and whether the proposed changes were in the best interest of the children. Father argued the mother failed to present evidence sufficient to show this.

In response to father’s motion, mother filed a response which included 114 pages of exhibits, which included copies of pleadings, mother’s interrogatory responses, father’s responses to RFDs, two affidavits from mother’s attorney, and mother’s affidavit with five attached exhibits. In her response, mother’s substantive response to father’s no-evidence MSJ consisted of the following paragraph:

Petitioner claims a genuine issue of material fact exists as to whether a
material and substantial change in circumstances has occurred and
submits affidavits, discovery, documentary evidence and Petitioner’s
pleadings, as summary judgment evidence, referenced in an appendix
attached hereto, filed with this response and incorporated by such
reference for all purposes as if recited verbatim herein.

As the COA stated, “Mother did not cite, quote, or otherwise point out to the trial court the evidence she relied on to create a fact issue on the challenged elements, in any portion of her response.” By failing to specifically identify the supporting proof, mother’s response failed to identify a fact issue to defeat summary judgment.

As such, the COA found the trial court did not err in granting the no-evidence MSJ and affirmed the trial court.



Spousal Maintenance & Minimum Reasonable Needs: Opinions, Oct. 24, 2017

The Fourteenth Court of Appeals released a published opinion in Willis v. Willis, No. 14-15-00913-CV, on spousal maintenance and evidence of minimum reasonable needs.

Father and mother married in 1995 and had three children, two of which are special needs and receive SSI. Mother has serious medical issues which result in her receiving dialysis treatments three times a week and has resulted in prolonged periods of hospitalization in the past. Mother receives SSI.

At the time of trial, the children lived at the mother’ s house. Mother and father had been separated for more than five years before the divorce commenced. Mother filed the divorce petition in October 2014. Father counter-petitioned. At the bench trial, only mother and father testified. A decree was entered and the father appealed. His issues on appeal are 1) that the trial court erred in dividing the community estate; 2) the trial court erred by ordering the father to pay $972/mo to mother in spousal maintenance; and 3) if the court does not sustain either of the first two issues, then the COA should conclude that the mother is not entitled to both spousal maintenance and the $60,000 judgment contained in the decree because mother asked the trial court to grant one or the other, but not both.

On the first issue, the father argued the division was unfair to him because he received less than twelve percent of the community estate even though there was no evidence of bad behavior by him. At trial, father testified his retirement account was worth about $144,000, though his I&A stated the community interest in the retirement account was $134,898.67. The entire retirement account was awarded to the mother in the decree. After trial, the father filed a MNT alleging newly discovered evidence showed the father’s retirement account was actually worth  $404,696.01 and asking the trial court to grant a new trial based on the evidence and that he did not fail to discover the evidence as a result of lack of due diligence. The trial court denied the MNT.  The father did not appeal the denial of the MNT (the COA pointed this out twice in its opinion). After the MNT hearing, the trial court entered FF/CL which indicated it based its decree on the trial evidence that the retirement account was worth between $135,000 and $144,000, not the $404,000 value. The COA concluded that, based on the record, the trial court did not divide the community estate based on the $404,000 value of the retirement account and it would not be proper for the COA to use this value in its review. Thus, the COA found the division was not 88%/12%, as alleged by the father, but more in the range of 53-56%/44-47% in the mother’s favor.

The father also argued the trial court erred by purportedly basing the disproportionate division on certain findings.  That is, the father alleged in his brief eight instances in which the trial court purportedly misinterpreted the evidence (e.g., “The trial court erred in relying upon Howard’s alleged fraud as a basis for a disproportionate division of the community estate because the evidence is insufficient to show that Howard committed any actual or constructive fraud.”). The COA found that, even if these eight assertions were true, the division was not manifestly unfair based on the evidence at trial (i.e., the nature of the community property, the relative earning capacity and business experience of the spouses, their relative financial condition and obligations, the size of the separate estates, and the health and physical condition of the parties). The COA overruled the father’s challenge to the division.

Of course, if it is the case that the retirement account is worth $404,000 instead of $144,000, that is a major difference which redounded in the mother’s favor.

In his second issue, the father challenged the court’s award of spousal maintenance of $972/mo, arguing the trial court erred in awarding spousal maintenance because there was no evidence that the mother would lack sufficient property on dissolution of the marriage to provide for her reasonable minimum needs.

During her testimony, the mother testified that she believes she is able “to provide for herself and her children’s reasonable needs for living” and that her belief is based on her being able to lived rent-free at her mother’s house and that if she could not live at her mother’s house, it would be much more difficult. The mother’s FIS indicated that her expenses are $1,455/mo, that she receives $603/mo in SSI benefits for herself, $806 in SSI benefits for her two sons, and child support of $1,075/mo. Additionally, the trial court awarded a judgment of $60,000 to her to be paid in $1,000/mo installments as part of the division of the community estate. Her $603/mo in SSI for herself and the $1,000/mo for sixty months totals $1,603/mo, $148 more than her minimum reasonable needs of $1,455/mo. The COA found that the evidence was thus legally insufficient to support a finding that the mother lacked sufficient property to provide for her minimum reasonable needs and that the trial court abused its discretion in awarding the spousal maintenance of $972/mo. The COA sustained the father’s issue. This begs the question: What happens at the end of sixty months?

The final issue, as argued by the father, was conditional. Because the COA sustained the spousal maintenance issue, the final issue was moot.

The COA modified the trial court’s decree to remove the spousal maintenance and affirmed the remainder.


TexasBarToday_TopTen_Badge_June2016 (3).jpg

Affirming Jury’s Verdict After a Modification Trial: Opinions, Oct. 17, 2017

The First District Court of Appeals released a published opinion in Epps v. Duboise, No. 01-16-00285-CV, this morning, affirming a jury’s decision in a custody modification. The COA affirmed.

Mother and father had a child in 2009, ended their relationship, and, in 2011, signed an agreed order regarding conservatorship in which mother was designated as primary. Mother filed a modification in 2013 seeking changes to the child support and possession and access. Father filed a counter-petition, seeking to be named primary. Trial took place in October 2015 and the only question submitted to the jury was who should be named primary. The jury named father. The mother appealed, challenging the legal and factual sufficiency of the determination.

The original order required the mother to inform the father of significant information concerning the health, education, and welfare of the child and required her to furnish father with copies of the child’s insurance policy, the schedule of benefits, and the insurance card. During exchanges, the parents were required to transfer the child’s medication. For health care appointments, each parent was required to notify the other parent of the appointment in advance so the other parent could attend. Psychological or psychiatric treatment was to be consented to by both parents. Also, the order required a possessory parent to notify the other parent if they were going to be absent for more than four hours during their possession; in such situations, the other parent had a right of first refusal.

The father testified that in 2011 he became concerned about a lump on the child’s back. He asked the mother for information about the child’s insurance and the medical card but she refused. He also asked her to schedule a doctor’s appointment but she did not. Medical records for the child were admitted and the father testified that he did not attend medical appointments because he had not been informed of them ahead of time. The mother testified that, until it was pointed out to her at trial, she didn’t realize she was required to notify the father of the doctor’s visits. He was also not informed of counseling sessions the child attended after the agreed order had been entered.

There was substantial testimony about the child’s asthma, medications, and other concerns for the child’s health which the COA summarizes in its opinion. Both parties also claimed at trial that the other had failed to honor the right of first refusal.

In her first issue, the mother argued the father failed to meet his burden to show a material and substantial change . The COA disagreed, observing the evidence showed that the requirements to provide medical and school information did not exist before the first order and the same was true of the right of first refusal. Further, the child was not diagnosed with allergies until after the first order. Because the jury could have reasonably concluded that the mother failed to notify the father of various medical visits, failed to obtain his consent before the counseling, failed to provide the child’s medications to the father at exchanges, etc., the father met his burden to show a material and substantial change.

Next, the COA examined whether there was evidence to support the jury’s determination that a change in primary was in the child’s best interest by examining the Holley factors.  On appeal, the mother argued there was significant evidence that, under the Holley factors, it would be in the child’s best interest for her to remain primary. The COA agreed this was true, but “[n]one of it, however, was so compelling that it established the implied finding of the best interest of the child to be against the great weight and preponderance of the evidence.”

On appeal the mother also argued the trial court erred in denying her motions for mistrial and her MNT.

At trial, a witness made a statement that the mother argued violated the court’s instructions on relevant testimony. The father called one Mr. Flemming as a witness. The mother had a had a child with Mr. Flemming. Apparently there was evidence that Mr. Flemming and the mother had had conflicts with visitation in the past. The mother objected, arguing the testimony of Mr. Flemming’s conflicts with the mother was not relevant. The trial court agreed and instructed father’s attorney not to solicit that testimony in front of the jury. When Mr. Flemming took the stand, father’s attorney asked him how he knew the father and Mr. Flemming responded, “I contacted him through Facebook because, well, she wasn’t letting me see my daughter so I know he was going to court for their marriage.” Mother’s attorney objected and moved for a mistrial; the trial court sustained the objection and instructed the jury to disregard the statement but denied the motion for mistrial. The COA found there was nothing in the record that indicated the jury did not disregard this statement. The issue was overruled.

The mother also argued on appeal that the jury received an improper instruction (“In determining the terms and conditions of conservatorship, you shall consider the qualifications of each party without regard to the gender of the party or the child.”)  because the instruction should not have been included because it was not raised by the evidence and constituted an improper comment on the weight of the evidence. The COA assumed without admitting that it was somehow error for the trial court to submit the instruction, and concluded that the mother failed to establish any harm by the alleged error. No dispute arose between the parties about whether the sex of either parent was relevant to the determination of primary. The issue was overruled and the trial court was affirmed.