War of the Roses: The End? (& a Rose By Any Other Name): Opinions, Feb. 15, 2018

The First District Court of Appeals issued a published opinion (and dissent) regarding the name change of a child in Werthwein v. Workman, No. 01-16-00889-CV, and the Fourteenth Court of Appeals finally entered its 65-page opinion in Harrison v. Harrison, No. 14-15-00430-CV, possibly bringing that long-running saga to an end.

UPDATE: On June 12, 2018, the Court of Appeals withdrew its Harrison opinion from February and replaced it with this substitute opinion. The significant differences between the prior opinion and the substitute opinion are 1) the analysis of Mother’s challenge to the trial court’s purported failure to enter judgment on the MSA, pg. 60-63 in the original opinion, pg. 60-64 in the substitute opinion; and 2) the characterization of marital property, pg. 63-65 and 64-67. The result of the judgment remained the same.

Longtime readers of this blog will doubtlessly remember the Harrison case, which I previously posted on, and which has spawned myriad appellate iterations. I once heard you could teach all of first year of law school using exclusively railroad cases and, similarly, I wonder if you could teach all of family law using Harrison cases.

In what the Court of Appeals calls Harrison I, (Harrison v. Harrison, 367 S.W.3d 822 (Tex.App.–Houston [14th Dist.] 2012, pet. denied)) the COA affirmed the 2010 decree insofar as it granted the parties’ divorce but reversed the remainder and remanded for new trial. The instant appeal follows a bench trial on remand. On appeal, Mother claims the trial court abused its discretion by: 1) permitting her trial counsel to withdraw, over her objection, approximately four weeks before trial and without granting a trial continuance; 2) naming Father sole managing conservator of the two children; and (3) dividing the marital estate. The COA affirmed.

This doorstop of an opinion begins with an introduction that essentially reiterates the trial court’s power and discretion in resolving cases efficiently and economically when conservatorship of children is at issue. Father initially filed for divorce in October 2006, when the children were 6 and 2 years old. Now they are 17 and 13 and their parents have been in litigation almost their entire lives.

Since the remand of 2012, the case had been set preferentially for trial several times, and Mother had alternated between periods of self-representation and representation by numerous attorneys, all of whom withdrew. (Mother and Father are both licensed attorneys.) In January 2014, the parties signed an MSA. Mother moved to set aside the MSA in March and the trial court denied the motion. Based on the amicus’s motion, the trial court signed an interim order on parent-child issues incorporating portions of the MSA (the “Interim Order”). The Interim Order named the parents JMCs, with Mother as primary. Father received extended possession of the children.

Mother violated the Interim Order and other temporary orders regarding the children’s school and blocked Father’s access to the children. Father moved to set aside the MSA based on Mother’s actions and asked to be named temporary SMC, which the trial court granted in September 2014. Father filed an enforcement and the trial court found Mother in contempt but suspended her confinement and placed her on community supervision, contingent upon Mother paying Father’s attorney’s fees and complying with the trial court’s orders. Mother failed to pay the fees and Father moved to revoke the probation. The motion to revoke was set for hearing on December 18.

On December 15, Mother’s counsel moved to withdraw and filed a motion for continuance. These were set for hearing on December 18. At that hearing, the trial court granted the withdrawal, denied the continuance, and ordered Mother jailed (that enforcement order was later found void).

A pretrial conference was held January 9, 2015. The parties were ordered to exchange exhibits by a certain date and time. Mother failed to do so, which the trial court discovered at a pretrial hearing on January 16. The trial court ordered Mother to produce her exhibits to Father and the amicus by 1:45 that day. Mother failed to do so because she had only her original copies of her exhibits and was “unable to tender copies to opposing counsel  or the amicus.” (Was Kinko’s closed January 16, 2015?) The trial court excluded Mother’s exhibits from the scheduled jury trial.

The parties were ordered to appear on January 20 at 8:30 am. Father and amicus were present, but Mother, pro se at this time, was not. Father waived his jury demand and requested a bench trial. The request was granted and testimony to the bench began. Mother showed up at about 10:15 am and notified the court that she had filed a motion to recuse the trial judge. The trial judge recessed proceedings until the administrative judge could rule on the motion, which was denied. Trial resumed after lunch. Mother objected to the trial resuming without a jury; the objection was overruled.

Father testified to Mother forging checks, attempting to buy an expensive home without Father’s consent or knowledge, secreting the children from Father, alienating them, and violating various court orders. Under cross-examination, Father admitted he had called Mother derogatory names, but denied he had done so in front of the children. He also denied he had physically assaulted Mother in front of the children.

The principal of the children’s former school testified via deposition that the children were not permitted to re-enroll because of Mother’s repeated school policy violations. For example, Mother interrupted teachers, pulled the children out of class during school hours, arrived late for pick up but refused to sign a late form, failed to sign in when she arrived for school visits during school hours, argued with school personnel to alter disciplinary decisions regarding the children and frequently called to change pick up instructions right before dismissal. The principal stated she’d never had a problem with Father.

Mother’s sister also testified via deposition, singing Father’s praises as a father and testifying that she would leave her children with Father, but not with Mother.

At the conclusion of trial, the trial court orally rendered judgment on February 12, 2015 and signed a final judgment on March 26, 2015. Father was appointed SMC, with Mother as PC with supervised possession of the children, for four hours, twice a month. Father was awarded the marital home.

In her first issue, Mother argued the trial court abused its discretion in permitting her attorney to withdraw a month before trial. The COA reviewed the myriad attorneys that had represented Mother since 2006 and noted that Mother had represented herself at the first trial. In December 2014, the attorney that Mother had most recently retained had been on the case for just a couple of weeks when she moved to withdraw. At the December 18 hearing (which was a hearing on Father’s motion to revoke, Mother’s motion for continuance and Mother’s counsel’s motion to withdraw), Mother’s counsel represented Mother for the motion to revoke portion and the continuance portion before telling the court that a conflict had arisen between herself and the client such that she could not continue to ethically represent Mother and could not place Mother’s interests ahead of her own. The conflict was evidently not specified but the trial court ruled that, while it did not want to create a policy of letting lawyers out of cases on the eve of trial, it would not order an attorney to continue representation that required the attorney to behave unethically. The matter was continued to December 22, Mother’s jail review hearing on Mother’s contempt sentence. At that hearing, Mother’s attorney represented her in the jail review portion of the hearing at which the trial court declined to release Mother from jail. The attorney then re-urged her motion to withdraw, arguing that under the disciplinary rules, it was a mandatory withdrawal due to “the egregious conduct that occurred between my client and myself.” The matter was continued to the following day, December 23. At that hearing, Mother opposed the withdrawal and claimed the real reason for her attorney’s motion was financial. The attorney disagreed and asked Mother, “Would you agree with me that I have informed you that there are certain actions that you have done, prior to my filing, post my filing of my Motion to Withdraw, that I have informed you those were one of many reasons why I was withdrawing?” Mother responded that while she did not want to waive her attorney-client privilege, that the attorney had stated reasons for withdrawing though she, Mother, did not agree with those reasons. The trial court permitted Mother’s attorney to withdraw.

The COA observed that though “it would have been preferable to have obtained a more detailed explanation through an in camera conference or other means that would have preserved the attorney-client privilege,” ultimately, it found that the trial court did not abuse its discretion in permitting Mother’s counsel to withdraw a month before trial in this case because Mother’s actions “would have caused [the attorney] to violate the disciplinary rules by compromising her fiduciary duties to [the Mother].” Court watchers will note that in Harrison I, the COA found that the trial court very nearly abused its discretion in permitting Mother’s attorney to withdraw 40 days before trial but the basis of that withdrawal was financial. In this case, Mother’s attorney denied Mother’s charge that lack of payment was the basis of her withdrawal. One could probably write an interesting law review article about this key difference between Harrison I and Harrison II.

The COA also found that the trial court did not abuse its discretion in denying the motion for continuance because the record contained no written motion for continuance and a trial court does not abuse its discretion in denying an oral motion for continuance.

In her second issue, the Mother challenged the trial court’s ruling appointing Father SMC and naming Mother PC with limited supervised visitation. In her brief, Mother divided this issue into a plethora of subpoints. Firstly, the COA found the trial court did not error in excluding Mother’s exhibits because she failed to comply with the court’s orders regarding the exchange of exhibits and she failed to show any resulting harm from the exclusion. Secondly, Mother testified the trial court erred because of Father’s purported history of domestic violence. The trial court, as fact-finder, was within its rights to resolve the conflicting evidence and testimony in Father’s favor. Thirdly, the COA found the trial court did not err in requiring Mother’s visitation to be supervised because of her “detrimental and disruptive behavior.” The COA reviewed the evidence of Mother’s misconduct, including violating court orders. In fact, one parent whose child was friends with one of Harrisons’ children testified against Mother, stating she had a reputation among the parents for untruthfulness and that they had severed their relationship with the Mother as a result. Fourthly, the COA found that the supervised visitation did not empower Father to “determine or defeat any right of access” by Mother to the children. Fifthly, the trial court did not abuse its discretion in granting Father’s request to waive the jury as Mother was not present when trial began and the request was made. Finally, the COA found the trial court did not err in refusing to enter judgment on the MSA under Lee.  The clerk’s record, the COA observed, does not show that Mother filed a motion to enter judgment on the MSA. While there was a “Motion to Enter the Mediated Settlement Agreement and for Full Compliance” in the reporter’s record as part of Mother’s offer of proof, Mother did not direct the COA to where she presented the motion to the trial court for a ruling in accordance with the rules. She attempted to argue the motion at the January 16, 2015 pretrial conference, but she had not set it for hearing or provided proper notice. As such, she waived the issue and Lee did not apply. (The COA also noted that Lee did not apply on the merits, either, as the circumstances had materially and substantially changed since the MSA had been signed)

In her third issue, Mother argued the trial court erred in dividing the marital estate by awarding the parties’ former marital home to Father. Evidently this issue was not adequately briefed and thus was overruled.

If past is prelude, this will not be the end of the Harrison matter, though it probably should have concluded long ago.

In Werthwein v. Workman, the mother contended the trial court abused its discretion by granting the request of the father to change the last name of their two-year-old son because the evidence was legally and/or factually insufficient.

The parties married in June 2012. The mother continued using her unmarried last name, both personally and professionally, but had father’s last name on her driver’s license. Mother became pregnant and the parties separated before the child was born. The parties’ testimony on the events leading to the separation and selection of the child’s last name conflicted.  Mother filed for divorce in May 2013, Father countersued, denied paternity, and requested genetic testing. In his original counter-petition, he did not request the child’s last name be changed to his. In August 2013, according to the mother, the father told her not to contact him any more and communication stopped. The child was born in September 2013. The father was not at the delivery. The mother listed father as the father but indicated the child’s last name would be her own, not the father’s.

A paternity test proved the father was the father. The divorce proceedings continued, without the father requesting the child’s last name be changed. The divorce became final in June 2014.

In September 2015, the father sought to modify the order to obtain more access to the child. Mother filed a counter-petition seeking an increase in child support. Father then amended his petition in January 2016, when the child was about 2.5 years old, asking the child’s name be changed to his. According to the mother, the father never said anything about the child’s last name being changed until he amended in January 2016. The parties resolved their other mod issues but, after a hearing in June 2016 (at which only the parents testified), the trial court ordered the child’s name to be changed to the father’s last name because it was in the child’s best interest. Mother appealed.

The COA noted that at the hearing, the parents’ testimony often directly contradicted each other. For example, mother testified that the father had previously expressed little interest in bonding with the child. The father testified that the mother had denied him access to the child. The trial court’s role was to determine the credibility and the weight of the parents’ testimony. The father testified that allowing the name change would reduce anxiety and confusion for the child in the future when the two participated in activities together. The father also testified to other reasons why it would be in the child’s best interest to share his name and, as with the “anxiety and confusion” reason, it’s unclear how these same reasons don’t also apply to the child having the mother’s name. “Both parents,” the COA stated, “supplied evidence in support of [the child] having their last name. And both provided testimony relevant to several of the best-interest factors.” But, ultimately, the trial court had the sole authority to make the requisite credibility determinations and resolve the conflicts in the evidence.

Mother also argued that the case law imposes a higher burden on a petitioner to obtain a name change and that the father failed to meet this higher burden. In support of this argument, the mother relied on In re H.S.B., 401 S.W.3d 77, 83 (Tex.App.–Houston [14th Dist.] 2011, no pet.) in which that court stated “In Texas, courts have held that a child’s name should not be changed unless the party seeking the change shows that the original name is detrimental to the child.” After this opinion, the Fourteenth rejected an argument similar to the mother’s in In re J.N.L., 528 S.W.3d 237, 241 (Tex.App.–Houston [14th Dist.] 2017, no pet.), “clarifying” its previous opinion in finding that section 54.004(a)(1) requires only that the name change be in the best interest of the child and that no higher burden is imposed on the petitioning parent. As such, the First COA found mother’s argument unavailing.

In her second issue, the mother argued that the trial court improperly shifted the burden of proof to her to disprove the propriety of changing the child’s name. The COA disagreed and did not find such a shifting of the burden in the record.

Finally, the mother argued that the trial court demonstrated a bias toward paternal last names. The COA agreed that tradition is not a separate factor to be relied upon in evaluating a petition to change a child’s last name, but found the record did not support the conclusion that the trial court allowed tradition to dominate the best-interest evaluation.

The mother’s issues were overruled and the trial court’s ruling was affirmed.

Justice Terry Jennings filed a dissent to the opinion of Justices Brown and Bland. The substance of the dissent is that the father’s testimony and reasons regarding why the name change would be in the best interest of the child were speculative and conclusory and were not supported by any evidence. The majority responded to the dissent in a footnote, arguing that in name change cases, frequently the only evidence available is the testimony of the two parents.


















Registering & Enforcing Child Support Judgments: Opinions, Feb. 13, 2018

The Fourteenth Court of Appeals released its memorandum opinion in In re J.S., R.S., & M.J.S, No. 14-17-00024-CV, affirming a judgment for child support arrearage.

In 2000, a California court entered judgment requiring Father to pay child support of $352.00/mo. Mother registered the California child support judgment in Harris County in 2013 and moved to enforce it. At the hearing on the child support order, Father testified that he should be entitled to possession credit because he testified that one of the children lived with him for a 31-month period, but this testimony was contradicted by the testimony of Mother and Mother’s sister. At the conclusion of the hearing, the trial court rendered judgment that Father failed to pay $32,070.71 in child support, from February 2000 to November 2013 and that the accrued interest as of October 31, 2016 was $39,151.46, totaling $71,222.17, plus post-judgment interest and attorney’s fees of $4,500.00. On appeal, Father challenged the failure to award possession credit and the attorney’s fees. The Court of Appeals affirmed the judgment because: 1) The evidence regarding Father’s purported possession of the daughter was contradicted by Mother and the trial court was within its rights to resolve the difference in Mother’s favor; and 2) His arguments against the award of fees lacked merit.

Is a Death in the Family a Material & Substantial Change: Opinions, Feb. 8, 2018

The First District Court of Appeals released an opinion in Smith v. Karanja, No. 01-16-01004-CV, reversing the trial court’s modification allowing the mother to travel internationally with the child.

Father and mother divorced on April 29, 2016. On July 5, 2016, mother filed a mod, seeking modification of the final decree to include an international travel provision. In the original order mother and father were appointed JMCs of the child, but the order did not address the child’s ability to travel abroad. The mother contended that there had been a substantial change in circumstances, that it was in the child’s best interest to travel with her to Kenya, where the mother was born, because the mother’s father had recently died and mother wished to attend a memorial service. She requested temporary orders, specifically that the father execute the consent form for the child to travel abroad. Father objected, asking the child not be allowed to travel abroad until the child turned 16 because he believed she would take the child to Kenya (a non-Hague country) and never return.

After an evidentiary hearing, the trial court granted the mod. The father requested FF/CL, but there were no FF/CL in the appellate record. On December 18, 2016, the trial court signed the order which included passport and international travel language and required either parent to execute a written consent form to travel abroad and any other form. The trial court also found there was credible evidence of a potential risk of international abduction of the child by the mother and ordered mother to post a $75,000 bond and detailed procedures for notification to the U.S. State Department and to the relevant foreign consulate or embassy before she could travel with the child.

On appeal, father represented himself and argued the trial court abused its discretion in granting the mod without imposing adequate international abduction prevention measures. He did not provide a reporter’s record on appeal.

The Court of Appeals ruled that traveling to Kenya to visit mother’s family was an eventuality which was anticipated before the parties’ divorce. In fact, while the divorce was pending father filed a motion addressing the need to determine whether mother should be permitted to travel abroad with the child and requesting the child’s passport be held by the court while the divorce was pending. Thus, international travel was an issue before the decree was entered and could not constitute a change in circumstances after the divorce decree was entered.

Yet, the Court of Appeals admitted, “[W]e cannot say, in the absence of a record, that the death of [mother]’s father and [the child]’s grandfather and the planned memorial service was not a substantial and material change in circumstances. Without the benefit of a record, we do not know the circumstances of his death or his health at the time of the divorce.” Nonetheless, the COA found that the trial court’s modification order granted mother carte blanche permission to travel anywhere in the world and was not tailored to the death of the child’s grandfather. “In other words, the relief the trial court may grant must be somehow connected to the changed circumstance.”

The COA held the trial court erred in two ways: 1) By granting the international travel modification because the mother’s desire for the child to travel internationally was not a material and substantial change; and 2) the order granted relief far broader than the relief requested. The COA reversed the modification order and rendered judgment in favor of father, vacating the modification order.


Immigration Status Redux: Opinions, Feb. 6, 2018

The First District Court of Appeals released an interesting published opinion yesterday, an opinion on rehearing which replaces and reverses the COA’s prior, memorandum opinion in Turrubiartes v. Olvera, No. 01-16-00322-CV. The original memorandum opinion was issued on June 1, 2017. Here is my post on the original opinion in its entirety:

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.

So what changed? The new opinion (like the original opinion) acknowledges that the record included enough evidence to overcome the presumption in favor of JMC, but found the trial court went outside the statutory factors to be considered in deciding whether the presumption has been rebutted by considering the mother’s immigration status. Specifically, the trial court found that the mother “was an undocumented immigrant without a driver’s license who could be detained by the police for driving without a license and subsequently deported due to her immigration status,” and that her immigration status had prevented her from obtaining her own residence. As a result of these findings, the trial court entered orders which required mother find a licensed driver for her periods of possession and ordered the father to designate the child’s primary residence.

“Immigration status, standing alone, is not probative of [mother]’s fitness to be a parent to her children so as to deny her joint managing conservatorship,” the COA wrote. The trial court, the COA wrote, heard no evidence regarding any detention or immigration-related charge, any pending removal proceeding, or that mother was a subject of any criminal prosecution. The trial court expressly found that there was no evidence that the mother had been detained by immigration authorities since coming to the U.S. in 2006 or that she was the subject of any removal proceedings. “Absent evidence showing that it has had a material, adverse effect on the ability to parent, immigration status should not be used as a basis to deny joint managing conservatorship.” Because immigration status is not a statutory factor to determine best interest and the evidence did not establish its relevance, the trial court erred in relying on the mother’s immigration status in determining whether she can be a JMC. In other words, because the statutory factors do not include immigration status, and “it is not otherwise relevant on this record to its determination,” the COA held that the trial court erred in denying mother’s MNT, which challenged the trial court’s reliance on her immigration status. The matter was remanded for new trial.

It will be interesting to see how this issue is developed in the future (barring amendment of the statute by the Legislature). Both the original opinion and the current opinion note that the record included evidence sufficient to overcome the presumption that the parents should be JMCs, without immigration status figuring into the analysis at all. However, whereas the original opinion did not have any problem with the trial court finding mother’s immigration status to be relevant because it affected her ability to legally drive and secure stable housing, the new opinion found that such evidence was not relevant because the children were protected from such dangers because the trial court ordered mother procure someone else to drive when the children were in her possession and by designating the father as the parent to determine the children’s primary residence.

But this ruling seems to raise some questions, in my humble opinion. First, if the trial court felt it was necessary to enter orders to protect the children from possible repercussions of mother’s immigration status (which the new opinion seems to approve of), does that not mean that the immigration status was, ipso facto, at least relevant, if not material or dispositive? Secondly, then when is immigration status relevant to a JMC determination? Does there have to be an open removal proceeding? A history of detention?

It is also interesting to note that the panel that issued the original opinion consisted of Justices Keyes, Bland, and Huddle, with Justice Bland writing the original opinion. Thereafter Justice Huddle resigned her office (apparently returning to private practice) and did not participate with the rehearing, so the panel issuing the new opinion consisted of just Justices Keyes and Bland, with Justice Bland again the author. In other words, after rehearing, the remaining Justices performed a 180 of their original opinion. That must have been some rehearing.