Unending Spousal Maintenance?: Opinions, Dec. 21, 2017

The First District Court of Appeals released two memorandum opinions today, Lowery v. Lowery, No. 01-16-00147-CV, on the termination of contractual spousal maintenance, and In re H.C.C., No. 01-16-00876-CV, on modification of conservatorship.

In Lowery v. Lowery, Wife and Husband divorced in 2009. The decree obligated Husband to pay Wife $1,600 per month in spousal maintenance until either Wife died, Husband died, Wife’s remarriage, or further order of the court, including a finding of cohabitation by Wife with another person. Neither party appealed the decree.

Over four years later, in October 2014, Husband filed an original petition to modify his spousal maintenance obligation, arguing the obligation did not terminate in accordance with Section 8.054(a)(1) of the Texas Family Code, which provides that the trial court may not order spousal maintenance for more than three years. Alternatively, he argued that if the trial court did not modify the termination date of the income-withholding order for spousal maintenance, it should be terminated as the obligation was contractual alimony and not subject to wage withholding. Wife filed an answer stating Chapter 8 of the Family Code does not require an end date for spousal maintenance.

In August 2015, Husband filed a motion for judgment nunc pro tunc, arguing the decree had a discrepancy between the judgment signed and the judgment the court intended to sign. Specifically, Husband argued that the MSA signed before the decree provided spousal maintenance would be “in accordance with the Family Code.” And that the decree failed to provide for the termination of the payments three years after entry of the order. The MSA, the COA noted, was not incorporated into the decree.

In August 2015, Husband also began missing payments. Wife filed an enforcement and contempt action and asked, if the order was not specific enough to be enforced, that trial court clarify it. Husband filed an amended motion for clarification of the decree, arguing the decree was not specific enough to be enforced by contempt and asking the court to clarify the termination date for his spousal support obligation.

At the hearing on the motion to clarify, the trial court opined that the decree conflicted with the statute in effect at the time. In January 2016, the trial court found the spousal maintenance section of the decree was contrary to Section 8.054 of the Texas Family Code, was not enforceable by contempt, and that the obligation terminated by operation of law three years after the decree was signed. Wife appealed.

The Court of Appeals held that, essentially, the decree meant what it said. The decree was, as a contract, unambiguous because it provided for when the maintenance obligation ended (Husband’s death, Wife’s death or remarriage, or further order of the court, including a finding of Wife cohabitating with another person) and that the trial court erred by referring to Section 8.054 because it was extraneous evidence that the trial court could not rely on unless the decree was ambiguous. Because the decree was not ambiguous, the trial court could not rely on Chapter 8 of the Texas Family Code. Just because the decree referenced Chapter 8, the COA said, that did not create an ambiguity.

But even if the decree was ambiguous, the COA said, Section 8.054 did not resolve the ambiguity. Subsection 8.054(a) provides a limitation on spousal maintenance for three years and subsection 8.054(b) provides spousal maintenance can last as long as a recipient spouse’s disability continues. The record did not indicate which subsection governed Husband’s obligation.

Because the decree was not appealed and was valid on its face, it was not subject to collateral attack. The trial court’s order terminating the spousal maintenance was vacated.

In In re H.C.C., Father appealed a judgment naming him and Mother as JMCs, with Mother as primary. The opinion is 38 pages. The procedural history and factual background are lengthy. Father, appellant, asserted nineteen issues in his brief. Due to time constraints, I am going to reduce my summary to the main issues.

Mother and Father divorced in 2009. The decree was modified in October 2012, giving Mother a SPO. During the modification, there were allegations that Mother abused the child and CPS concluded there was reason to believe Mother abused the child. After the modification was entered, Father filed numerous complaints with CPS alleging child abuse by Mother. CPS ruled out all of these post-modification complaints. A psychiatrist hired by Father concluded, based on reviewing photos of bruises, the child had been abused, but the child made no direct statement to the psychiatrist regarding abuse. Mother agreed to be placed on supervised visitation in February 2013, which lasted until June 2014. Mother contended the supervised visitation lasted so long because Father purposefully stalled or dragged out the court-ordered evaluation of the child. Mother met with the court-appointed expert, Dr. Petzold, seven or eight times and provided her with documentation, whereas Father only went to Dr. Petzold’s office twice and provided her with no documents. There was evidence that Father was arrested for domestic violence against his new wife just months before trial, but the assault charge was dismissed when Father and his new wife reconciled. A CPS caseworker found that Father and Stepmother were “on the verge of emotionally abusing” the child by repeatedly questioning the child and prompting him to make outcries of abuse or neglect. The Court of Appeals found there was some substantive evidence which supported the trial court’s determination that naming Mother as primary was in the child’s best interest.

One of Father’s issues on appeal was that the final order and the FF/CL differed on the proper amount of child support to be paid by Father, the final order ordering payments of $651/mo and the FF/CL finding that $516/mo was the proper amount. Mother conceded the error. The COA modified the judgment to reflect Father pay $516/mo in child support.

Besides the child support adjustment, the COA affirmed the trial court’s final order.



Unfounded Claims of Sexual Abuse & the Scope of a Nunc Pro Tunc: Opinions, Dec. 7, 2017

The Fourteenth Court of Appeals released two memorandum opinions yesterday morning, one affirming a modification in which a parent’s allegations of sexual abuse against the children were found to be without merit, and the other on correcting errors in a judgment with a nunc pro tunc.

Update: On April 27, 2018, the Texas Supreme Court denied the petition for review in Duffey v. Duffey, below.

In Duffey v. Duffey, No. 14-16-00144-CV, the mother challenged the trial court’s final order granting the father’s modification. Mother and father had two children (a boy and a girl) and divorced in 2010. In the original decree, mother was appointed SMC and father PC with supervised visitation because the trial court found father had a history and pattern of committing family violence.

In the fall of 2012, there was an allegation of father improperly touching their son.  Mother contacted DFPS and began taking their daughter to therapy. In therapy the daughter made an outcry of sexual abuse by the father and the therapist reported the outcry to the authorities. DFPS began investigating the outcry. Father continued with his supervised visitation until March 2013.

Shortly after the outcry, mother filed her modification and father counterclaimed. The father testified that he did not have any visitation with his children from March 2013 until March 2014 when he started having visitation again through Guardians of Hope. Evidence at trial showed the the mother took actions to prevent his visitation for this intervening year. Father testified that when he did see his children, they were hostile to him and claimed to hate him.

Mother contacted law enforcement twice more about allegations of father sexually abusing the children but father was not arrested or charged. Mother also started taking the children to a new therapist in December 2014, in violation of the temporary injunctions. The new therapist made the same sexual abuse allegations to the DFPS. The results of the DFPS’s investigation was “Ruled Out” or “Unable to Determine.”

Mother nonsuited her mod and father’s mod went to trial in front of the AJ. After a bench trial, the AJ signed an order finding it was in the children’s best interest to modify the conservatorship to name both parents JMCs with dad as primary (as well as other exclusive rights). Mother was ordered to pay child support and $65,000 in attorney’s fees.  The trial court entered findings of fact and conclusions of law. Mother appealed, pro se.

In her first issue, mother alleged the trial court erred because the AJ signed an order to modify on November 20, 2015 and the presiding judge signed a final order about a month later, thereby impermissibly creating two final orders. The COA rejected this argument because the AJ signed both orders but even if there had been two separate “final” orders, the second was signed while the court retained plenary power.

In her second issue, the mother argued the trial court erred by failing to consider an answer father testified to at trial which she claimed constituted a judicial admission he had sexually abused their daughter. The COA rejected this argument for two reasons. First, under the language of the final order, the trial court considered the evidence at trial, which per force included the supposed judicial admission. Secondly, the purported judicial admission was not a clear, unequivocal statement of inappropriate conduct. Rather, during his direct testimony, father’s attorney presented him with mother’s modification petition and asked why she was seeking to modify the prior order. Father said, “Because of what I did to [daughter].” Given that father also testified that he did not molest the daughter, the trial court did not err in failing to regard the statement as a judicial admission.

In her third issue, mother argued the trial court erred in appointing father primary JMC.  In its FF/CL, the trial court made half a dozen findings that the father would best provide for the children’s emotional and psychological needs and development now and in the future. Mother did not challenge these determinations on appeal and, the COA held, the record evidence was legally and factually sufficient to support them.

Further, the trial court found that mother had engaged in severe alienation, continued to make unfounded allegations of sexual abuse against father, and failed to obtain proper counseling for the children and abide by the counselor’s recommendations. The mother challenged these determinations on appeal. The COA found the AJ did not abuse its discretion because the evidence presented at trial was legally and factually sufficient to support its rulings.

In her fourth issue, mother argued the trial court erred in awarding attorney’s fees to father because the fees were unreasonable, unjustifiable, unnecessary, and inequitable. In her fifth issue, mother argued the trial court erred in making this award because father failed to segregate proof of the fees in the mod from his fees incurred in an enforcement and contempt action mother brought against father and his fees related to the criminal investigation of father’s alleged sexual abuse of the children. The COA noted that the father succeeded in his modification and that the trial court did not err in awarding fees to the father. In its FF/CL, the AJ concluded that “ATTORNEY FEES WERE PROPERLY PROVED UP.” The COA noted the trial court could have entered more specific and detailed findings, but this was sufficient to support the award. Further, father had presented invoices and his attorney testified that father had incurred $178,771.25 in attorney’s fees in this matter and that the fees requested were reasonable and necessary. Father testified that at the time of trial, he had paid $122,700 in fees. The COA also noted that most of the time entered on the invoices related to the modification, $178,771.25 had been incurred in fees, but the trial court only awarded $65,000 in fees. The COA found the trial evidence was legally and factually sufficient to support the award.

In her sixth issue, mother argued that the presiding judge and the AJ reversibly erred in failing to admonish mother as to the consequences of signing a Rule 11 agreement in which the parties waived any objection to a trial on the merits before the AJ and the right to appeal the AJ’s rulings and recommendations to the referring court. The COA found the Rule 11 agreement did not have any such requirements.

In her seventh issue, mother argued the AJ erred by failing to file additional FF/CL requested by mother. The COA found these requests lacked merit.

The trial court was affirmed.

The record and procedural history of In the Matter of the Marriage of Bowe & Perry, Nos. 14-16-00551-CV and 14-16-00557-CV, are simply dizzying. Below is a fairly detailed synopsis of the opinion, but the ultimate question is whether or not the six orders appealed were beyond the scope of a nunc pro tunc because the orders impermissibly corrected purported judicial errors and not clerical errors. The COA found they were and vacated the six orders.

Mother filed for divorce in 2005. The record did not include a decree but did show the parties thereafter litigated modifications to the custody arrangement. The record included an MSA dated January 6, 2012 which indicated it modified the trial court’s April 28, 2009 court order concerning custody, though the record did not include the April 28, 2009 order.  The MSA provided that father would be liable for the amicus fees and mother’s attorney fees.

In January 2012, mother filed a “second amended emergency motion to modify the parent-child relationship,” citing events that happened after the MSA was signed. This motion also sought to amend the trial court’s July 22, 2009 custody order, which was also not included in the record.

On February 9, 2012, the trial court signed an agreed order to modify the parties’ custody arrangements. This order incorporated by reference the January 2012 MSA and granted the parties’ requested modifications. It also included a Mother Hubbard clause. It did not mention or otherwise purport to resolve the issues raised in the mother’s second amended emergency motion to modify.

Then, for reasons that I don’t think are clear from the opinion, the trial court severed mother’s second amended emergency motion to modify into a separate action and signed an emergency temporary order to modify the parent-child relationship which granted in part the relief requested by mother and limited father’s interaction with the children to supervised visitation.

Custody litigation continued in the severed action. Father filed an amended counterpetition to modify and a motion for sanctions against mother and, in December 2013, a second amended counterpetition.

Mother then nonsuited her claims in the severed action in January 2014. She also filed a motion to dismiss and an alternative plea to the jurisdiction seeking dismissal of father’s counterclaims in the severed action. The trial court denied the motion.

The amicus filed a motion in the severed action on January 27, 2014 seeking a partial dismissal of father’s conservatorship claims, arguing the father had failed to file an affidavit as necessary to modify a conservatorship order less than one year from the order’s date. On January 29, 2014 mother re-urged her motion to dismiss and alternative plea to the jurisdiction, which the trial court orally granted.

Mother’s counsel  drafted an order which was signed by Judge Lombardino on March 3, 2014. This order included eight paragraphs of factual findings that based the dismissal of father’s claims in the severed action on the terms of the February 9, 2012 order. Judge Lombardino then recused himself from the case two weeks later.

In May 2016, the amicus filed a motion to correct the judgment under TRCP 316, seeking to change Judge Lombardino’s March 2014 order. In this petition, the amicus asserted the March 2014 order’s reference to the trial court’s “purported lack of jurisdiction” provided a basis for father to pursue a lawsuit against the amicus and mother’s attorney to recover fees he had paid under the terms of the January 2012 MSA. The amicus contended that there was “nothing in the record indicating that the Court granted [the mother]’s Plea to the Jurisdiction,” and asserted that the March 2014 order’s basis for dismissal was the father’s failure to include the requisite affidavit. The amicus asked the court to sign a nunc pro tunc granting the dismissal, not the plea to the jurisdiction.

After a hearing in May 2016, the court orally granted the amicus’s motion to correct the record of judgment. The court then signed three orders in June 2016 granting the amicus’s requested relief:

  • The trial court signed an order granting the amicus’s motion to correct
    record of judgment on June 2, 2016. The order included the parties’
    original case number, with the case number assigned to the severed
    action included in parentheses.
  • The trial court signed an identical order on June 30, 2016. This order
    included only the case number assigned to the severed action.
  • The trial court signed on June 30, 2016, a reformed order on Mother’s
    motion to dismiss and alternative plea to the jurisdiction. The order
    stated only that Mother’s “Motion to Dismiss is granted.”

Father appealed these orders.

The amicus and the mother’s attorney filed a motion to correct, modify, or reform the trial court’s nunc pro tunc judgment in July 2016. At the hearing on this motion, the amicus represented to the court that the father had filed a suit against the amicus and mother’s attorney to collect the attorney’s fees he had paid to them and that the judge in that suit was “not happy” with the prior NPT order and was unable to discern what the three June 2016 orders purported to change about the March 2014 order. Thus the amicus requested that the trial court sign a subsequent nunc pro tunc explicitly removing all factual findings from the March 2014 order.

In September 2016, the trial court signed three orders, granting the requested relief:

  • an order granting the amicus’s and mother’s attorney’s motion to correct, modify, or reform the nunc pro tunc judgment;
  • a “reformed order on motion to correct record of judgment (nunc pro
    tunc)” that explicitly removed the eight paragraphs of factual findings
    contained in the March 2014 order; and
  • a “reformed order on motion to dismiss or, in the alternative, plea to the
    jurisdiction — nunc pro tunc.” The order stated only that Mother’s
    “Motion to Dismiss is granted.”

In addition to appealing the September 2016 orders, Father filed a request for FF/CL pertaining to the September 2016 orders. The trial court did not issue any FF/CL.

In his appeal the father challenged:  (1) the legal validity of the trial court’s six 2016
orders; (2) trial court’s resolution of certain evidentiary issues at the nunc pro tunc
hearing; and (3) trial court’s failure to issue findings of fact and conclusions of law. Only father filed an appellate brief.

The COA held that the case turned on the “proper characterization of the six 2016 orders.” That is, were the 2016 nunc pro tunc orders corrections of clerical errors or judicial errors? The COA found the six 2016 orders substantively and materially changed the March 2014 order by deleting eight paragraphs of factual findings and changed the legal basis for the trial court’s dismissal of father’s claims. Because the orders attempted to correct a purported judicial error, they exceeded the permissible scope of a nunc pro tunc order. The COA vacated the six orders.