Arbitrating an MSA Drafting Dispute: Opinions, May 17, 2018

The Fourteenth Court of Appeals released a memorandum opinion in Farmer v. Farmer, No. 14-17-00077-CV yesterday, which primarily concerns the effect of an arbitrator’s ruling on a MSA drafting dispute.

Wife filed for divorce in March 2015 and husband counterpetitioned. After a number of continuances, the trial court denied wife’s last motion for continuance and set trial for good on September 19, 2016.

On the date of trial, the court excluded wife’s expert, Robert Adams. After that, the parties entered into an MSA which was proved up that same day. The trial court orally rendered the divorce on September 19 and, on October 26, 2016, the trial court entered a final decree of divorce. (If I’m reading this opinion correctly, the timeline here is impressive: On the date of trial, the parties held a Daubert hearing on wife’s expert; then they rushed to mediation, settled the case, and signed the MSA. Then they rushed back to the courthouse and proved up the MSA before the ink was dry. Quite a day.)  Wife filed a motion for new trial, complaining the trial court improperly incorporated a property division into the decree. The property division included in the decree evidently was the ruling of the mediator, serving as arbitrator of drafting disputes. The MNT was denied by operation of law.

On appeal, wife asserted three issues: 1) the decree should be set aside because it departs from the MSA on the property division; 2) wife’s expert was improperly excluded; and 3) wife’s motion for continuance was denied.

On the first issue, wife argued the property division from the MSA should have been used in the decree, not the one signed by the mediator/arbitrator. First, the Court of Appeals noted that the divorce decree and the property division were attached to her notice of appeal and to her opening brief in an appendix, but were not in the appellate record. Because the documents were not included in the record, the Court of Appeals could not consider them.

But even if they had been in the appellate record, the Court of Appeals held the trial court did not err. First, the trial court could have reasonably relied on the property division as being the result of arbitration (as was provided for in the MSA). Secondly, wife did not include a sufficient record of the arbitration. The first issue was overruled.

As for her second and third issues, husband argued these issues were moot because the parties settled. The Court of Appeals agreed, finding the issues became moot once the parties signed the MSA. The trial court was affirmed.


Offers of Proof for Excluded Evidence: Opinions, May 10, 2018

The First District Court of Appeals released a memorandum opinion this morning in Jacob v. Jacob, No. 01-16-00835-CV, denying mother’s appeal of an order denying her request for an increase in child support. The mother and father had a child and divorced in 2010. Subsequently, the mother had another child and consequently sought a reduction in her monthly child support. At trial, she sought to introduce evidence of her increased expenses and costs related to the new baby, but father objected to the evidence as going outside the scope of her disclosures. Crucially, mother did not make an offer of proof and the Court of Appeals overruled the issue because the error was not preserved. Additionally, mother filed a motion for new trial regarding the excluded evidence, which was denied by the trial court, and the  Court of Appeals affirmed because a motion for new trial cannot preserve error related to the admission or exclusion of evidence. Finally, mother challenged the trial court’s failure to issue findings of fact and conclusions of law, but the Court of Appeals said the remedy for that was to move in the appellate court to abate the case and order the trial court to issue the FF/CL. The trial court was affirmed.

Default Judgment, Disabilities, & Child Support: Opinions, May 3, 2018

The First District Court of Appeals released a memorandum opinion this morning in Dobyanski v. Breshears, No. 01-17-00407-CV, in which the Court of Appeals sustained Father’s restricted appeal and reversed an increase in child support granted on a default basis. Though the case is about child support, it also concerns disability findings and the evidence necessary to establish them.

Mother and Father entered into an agreed order which required Father to pay $490/mo in child support until the child reached the age of 18. About five years later, Mother petitioned for a modification and increase in monthly support.

Father was not present at the modification hearing. Mother testified (and provided doctor’s reports) to the child’s diagnoses of vaccination delay, oppositional defiance disorder, ADHD, developmental language disorder, and autism spectrum disorder. She also testified that the child’s schedule and routine could not vary from day to day and that she believed the child’s disability would prevent her from working full time.

Regarding the father’s financial status, she testified that he was employed as a conductor for a railroad. She also presented a copy of an agreed order from another case in which Father was ordered to pay child support of $600/mo. That agreed order from 2015 showed Father’s gross monthly resources were $7,437.56 and his net monthly income $5,423.30.

Mother requested an increase to $1,200 in monthly child support. She conceded that under the guidelines, Father would not owe $1,200/mo unless his gross monthly income was $9,200. Mother testified that she believed Father was capable of earning that much because he was always telling her he could not visit the child because he was working.

The trial court entered a default order which found: 1) there had been a substantial and material change in circumstances; and 2) the child required substantial care and personal supervision and would not be capable of self-support as long as his disability existed. The order increased the child support obligation to $1,200/mo and to continue beyond the child’s age of 18.

Father filed a restricted appeal, alleging Mother failed to adduce evidence of the parties’ net resources that justified the amount of child support or that the support should continue beyond the child’s 18th birthday.

The Court of Appeals found that the evidence did not support the finding that the child was disabled because Mother’s testimony that the child, aged 6, requires a “very high level of care ” and constant monitoring “does not explain how [the child] requires care beyond that required for a typical child of his age or the extent to which any care or supervision is made necessary by his diagnoses.” Further, the list of diagnoses “provides no information concerning the severity of those conditions or how they may limit his ability to function,” nor did the evidence show the extent to which the mother “takes more time or incurs additional expense to care for and supervise [the child].”

Finally, the evidence before the trial court did not show the father’s current net resources or the additional financial support that is necessary to provide the child with substantial care and personal supervision indefinitely into the future.

The Court of Appeals specifically cited and relied upon Justice Guzman’s concurrence in the denial of petition for review in In re D.C., No. 16-0543, in which Justice Guzman essentially said–rightly– that the caselaw regarding adult disabled child support and the evidentiary requirements thereof under TFC §154.302 was all over the map because of the ambiguity of the statute and calling on the Legislature to provide the courts with more guidance (which I blogged about here). Today’s opinion appears to be a signal to the trial courts that at least the First District Court of Appeals is going to be a lot more rigorous in its review of evidence in support of disability findings under Section 154.302 in the future.




Evidence, Predicates, & Rule 408: Opinions, May 1, 2018

This morning, the Fourteenth District Court of Appeals released a memorandum opinion in In re J.C.K., No. 14-17-00082-CV, an appeal from a modification in which the father was ordered to pay attorney’s fees in the amount of $252,996.55. But most of the father’s issues on appeal and much of the twelve-page opinion revolve around evidentiary rulings and a packet of documents–a MacGuffin–that was never entered into evidence.*

In April, 2010, the trial court entered a divorce decree which named the parents JMCs of the child. In December, 2010, mother’s attorney sent a letter to father’s attorney which included a proposed modification order, a packet of other documents, and an affidavit by the mother which alleged the father had assaulted her as well as several other women and had drug and alcohol problems. At the time, the father was on deferred adjudication for a previous assault of the mother that had occurred prior to the divorce. In the letter, the mother’s attorney expressed a desire that the parties could reach an agreement regarding the modification based on the attached documents or the mother would have to file the mod with the affidavit attached. According to the father, the proposed modification order would have effectively ended his right to see his son as the proposed order made visitation at the mother’s sole discretion and would have required him to pay exorbitant sums in child support. As mentioned above, the packet of documents which accompanied the letter from mother’s lawyer was also at issue at trial and the appeal. In his brief, father calls this letter from mother’s lawyer an extortion attempt.

Mother filed the modification (without the affidavit attached), seeking to be named SMC, limiting the father’s possession and access, and requesting an increase in child support and payment of the mother’s attorney’s fees. The father counterpetitioned. At the conclusion of the trial, the court named mother SMC and ordered father’s visitation be reduced, supervised, and contingent on him meeting certain requirements, such as him attending drug therapy, and avoiding conviction for domestic violence. The court also ordered him to pay $252,996.55 in attorney’s fees. The court’s findings of fact and conclusions of law found mother had presented credible evidence of father’s drug abuse and violence against women and that it was in the child’s best interests to modify the order.

During the trial, father offered the attorney’s letter which preceded the suit and the mother’s affidavit into evidence. They were admitted. He also evidently “indicated a desire” to enter into the record the entire packet of documents that accompanied the letter and affidavit, but evidently did not offer them. Then, after trial, he attempted to enter into the record a formal bill of exception containing the document packet, but the trial court sustained mother’s objection and refused to accept or sign the bill. Specifically, the trial court found father failed to lay the proper predicate or mark and offer the packet into evidence. Also, he failed to timely comply with all requirements to obtain a completed formal bill of exception.

The father’s first seven issues on appeal assert the trial court erred by not admitting into evidence or considering the packet of documents. Father submitted a bench brief in which he argued the packet of documents was admissible. Mother argued the documents constituted part of a settlement offer and thus were inadmissible. The trial court found that, at that point during the trial, the documents were part of a settlement offer, but did state that the court had not yet heard testimony which would support admitting the documents into evidence under one of the other purposes Rule 408 allows for settlement-related material. On appeal, father argued this was a final ruling regarding the admissibility of the documents; mother argued the trial court did no more than offer a preliminary indication of its ruling which could  change subject to later testimony and potential predicate-laying.  The Court of Appeals found father failed to actually offer the packet of documents into evidence, failed to lay a predicate, and thus failed to preserve the issue of the admissibility of the packet. The issues were overruled.

In his eighth issue, the father challenged the legal and factual sufficiency of the evidence to support the award of attorney’s fees. The trial court found mother had incurred $414,809.80 in reasonable attorney’s fees and ordered father to pay $252,996.55 to mother’s attorney. The Court of Appeals found that though the evidence supporting the reasonableness of the fees “[was] quite succinct,” it was sufficient to support the award.

The trial court was affirmed.

*Because the packet of documents was not entered into evidence and was not part of the record, the court’s opinion does not indicate what the packet contains.