Are Court-Appointment Lists Unconstitutional?: Opinions, June 21, 2018

Today the First District Court of Appeals released a memorandum opinion on child support modification, Amudo v. Amudo, No. 01-17-00318-CV, and the Fourteenth released a memorandum opinion on the denial of a protective order, Hassan v. Hassan, No. 14-17-00179-CV, and a really unique published opinion on the constitutionality of the appointments of attorneys ad litem, guardians ad litem, mediators, and guardians under Government Code chapter 37, In re K.L., No. 14-16-01022-CV.

In Amudo v. Amudo, father petitioned to decrease his child support and health insurance obligations. Mother answered. Mother eventually served father with discovery requests which father objected to as being untimely because it was too close to trial. But the trial was continued a couple of times thereafter and father did not amend and answer the requests. At trial, mother objected to father’s evidence on the ground that he did not answer her discovery requests. Father argued mother did not respond to his discovery requests either. But father was the party seeking affirmative relief and, upon mother’s objection, he was not able to testify to his employment, income, and resources because that testimony would have been responsive to mother’s interrogatories. The trial court denied his petition and the COA affirmed.

In Hassan v. Hassan, Elaine filed for a protective order against Tamer. After trial, Tamer moved for directed verdict, which the trial court granted and the COA affirmed. Here is the relevant factual recitation:

The parties proceeded to a bench trial on February 6, 2017. Elaine testified at trial regarding the incidents included in her affidavit. The trial court admitted as an exhibit a photograph of Elaine taken in April 2016; Elaine is pictured wearing a neck brace and has three visible bruises on her right arm.

Elaine testified that Tamer had visited her twice in the three weeks preceding trial. Elaine stated that Tamer did not threaten her with violence during these visits. On cross-examination, Elaine acknowledged that she and Tamer were married twice. Elaine stated that she and Tamer were married in 2005 and divorced in November 2006. Elaine testified that she and Tamer were “common-law married” in December 2006 and “legally” married in 2008.

In response to questioning, Elaine acknowledged that “[a]t any point [she’s] free to go where [she] want[s] when [she] want[s] during the day.” Elaine also stated that she never reported Tamer’s abuse to the police. Elaine testified that she and Tamer currently live about 12-13 miles apart from each other.

Elaine responded “yes” when asked if she was “still afraid of family violence from [Tamer] today?” When asked why she was afraid, Elaine stated “I don’t know. I always go back.”

Elaine rested her case and counsel for Tamer moved for a directed verdict on the grounds that Elaine “has not proved . . . that [Tamer] is, in fact, a threat of future violence, nor is conclusive as to any specific incidents of violence.” The trial court stated that it did “find that the evidence of family violence has been presented” but did not “have any basis for future” violence. The trial court granted Tamer’s motion for a directed verdict.

Perhaps the most interesting decision today is In re K.L., in which the Court of Appeals reversed the trial court’s determination that chapter 37 of the Government Code was unconstitutional. But the COA’s ruling is based on standing, not the merits of the dispute.

In this case, the maternal grandparents of two minor children petitioned to be named primary conservators for the children. The children’s parents were named as respondents though at the time they did not know the identity of one of the fathers. Under Chapter 37 of the Government Code, the trial court appointed an attorney ad litem for the unknown father. Chapter 37 requires courts in certain counties to create and maintain lists of qualified people who are registered to serve as attorneys ad litem, guardians ad litem, mediators, and guardians. Courts are then generally required to make such appointments on a rotating basis from the lists, but may disregard the lists and appoint someone agreed to by the parties or of the court’s own choosing, so long as there is a finding of good cause and an explanation is provided.

After the AAL was appointed, the grandparents filed a motion to reconsider, arguing chapter 37 violated the separation of powers doctrine in the Texas Constitution both because it infringes on core judicial powers and its vague and undefined use of the word “qualified” requires the judiciary to legislate in the guise of interpreting the statute. The grandparents requested the trial court find the statute unconstitutional, rescind the appointment of the AAL, and appoint an AAL without using the chapter 37 procedures.  The State of Texas was notified of the Constitutional challenge.

Before the motion could be heard, the mother filed a counterpetition identifying the child’s father as an “alleged father.” At the hearing on the motion, the father appeared pro se and the appointed AAL appeared as AAL. The State did not appear or respond to the motion. After the hearing, the trial court granted the motion, held that chapter 37 was unconstitutional because it violated the separation of powers doctrine and vacated the appointment of the AAL. The father’s paternity was subsequently established.

Several months later, the OAG intervened and filed a motion to reconsider the order and declaration that chapter 37 procedures are unconstitutional. The trial court denied the motion. The case proceeded to trial. The grandparents were named primary conservators and the parents were named possessory conservators. The State appealed.

The State argues that the grandparents lacked standing to challenge the constitutionality of chapter 37 because the grandparents had no “concrete and particularized,” “actual or imminent” injury from the appointment of a AAL for one of the fathers. The Court of Appeals agreed. The grandparents responded that they had a justiciable interest in the appointment process because 1) they could potentially be ordered to pay the ad litem’s fees and 2) the ad litem would be involved in a case to determine the best interests of their grandchildren.

With regard to the first argument, the COA ruled that the grandparents could still be on the hook for fees whether or not the father or an AAL appeared in his place. That is, there is nothing about the AAL’s appointment that caused that potential injury.

As to the second argument, the grandparents argued that the chapter 37 procedures unnecessarily hamper the trial court’s ability to match an appropriate AAL with the circumstances in a particular case and that, as the child’s grandparents, they have an interest in assuring that an appropriate ad litem is appointed to represent the unknown father. The COA ruled that these arguments do not present a sufficient interest in the representation of an opposing party to give them standing to contest how that representation is accomplished.

As such, the Court of Appeals ruled the  grandparents lacked standing to challenge the constitutionality of chapter 37 and thus the trial court lacked subject matter jurisdiction to consider the issue. The COA modified the judgment to vacate the trial court’s ruling that chapter 37 is unconstitutional and affirmed the judgment in all other respects.

One can’t help but wonder who could have standing to challenge the constitutionality of the chapter. If the grandparents can’t challenge the provision, then who can? The father? Once the father appears in the suit, wouldn’t the AAL be dismissed and the issue moot? Or would the likelihood of future recurrence allow the issue to be heard? Even then, what injury would the father have to seek relief on? Would he have to show that the judge wanted to appoint a particular AAL that was better suited to represent his capacity but was barred from doing so by the appointment list? But in that circumstance, the trial court can deviate from the list for good cause. The head, it reels. We may have to wait until the trial court in this case (the 257th) gets another case and a party whose capacity was previously represented by an AAL or GAL to challenge the provision. It could be a while before we get an answer… if ever.



What is Actual Care, Control, & Possession?: Opinions, June 15, 2018

On June 15, 2018, the Texas Supreme Court released an important opinion on standing to file a SAPCR under TFC §102.003, specifically the interpretation of §102.003(a)(9) (“actual care, control, and possession of the child for at least six months”) in In re H.S., No. 16-0715. The vote was 5-4, with Justices Johnson, Guzman, and Brown joining a dissent authored by Justice Blacklock. Justice Guzman also authored her own dissent.

The child at issue lived in her maternal grandparents’ home for the first 23 months of her life. During the last 8 months, her grandparents were the primary caretakers and providers. The child’s mother was in rehab much of this time. The child saw her father intermittently. While the mother was in rehab, the grandparents directed the child’s day-to-day activities and took care of her daily needs, such as feeding her, clothing her, and paying for her daycare. The parents did still participate in some parenting decisions and saw the child on occasion.

The issue is whether or not the grandparents had standing under §102.003(a)(9) to bring a SAPCR and what the meaning of “actual care, control, and possession” in the statute is. The trial court dismissed the grandparents petition and the Fort Worth Court of Appeals affirmed. The Supreme Court reversed, finding they did have standing and that the meaning of the statutory text does not require any additional considerations posited by other Courts of Appeal, such as legal control, exclusive control, permanent control, or a showing that the parent has abdicated or relinquished his/her rights. In other words, just being a (not necessarily the sole) caretaker for the child on a day-to-day basis for a period of six months is sufficient under the statute, even if the parents continue to help care for the child and make decisions for the child. The Supreme Court emphasized that the issue is standing under the statute, not the final determination.

The test put forward by the Supreme Court is whether:

if, for the requisite six-month time period, the nonparent served in a parent-like role by (1) sharing a principal residence with the child, (2) providing for the child’s daily physical and psychological needs, and (3) exercising guidance, governance, and direction similar to that typically exercised on a day-to-day basis by parents with their children. The statute does not require the nonparent to have ultimate legal authority to control the child, nor does it require the parents to have wholly ceded or relinquished their own parental rights and responsibilities.

The Supreme Court specifically rejected an interpretation from the Beaumont Court of Appeals, which found the statute required legal right of control over the child. (In re K.K.C., 292 S.W.3d 788, 793 (Tex.App–Beaumont 2009, orig. proceeding). The Court also cited approvingly both Smith v. Hawkins, No. 01-0900060-CV, 2010 WL 3718546 at *3 (Tex.App.–Houston [1st Dist.] Sept. 23, 2010, pet. denied) (mem. op.) (finding nothing in the statute required the nonparent’s care and control to be exclusive) and Jasek v. Tex. Dep’t of Family & Protective Servs., 348 S.W.3d 523, 535 (Tex.App.–Austin 2011, no pet.) (finding the Legislature’s word choice manifests an intent to confer standing on a person who had for six months developed and maintained a relationship with the child by virtue of that person’s de facto care, control and possession “as distinguished from a bare legal right of care, control, and possession”).

The Blacklock dissent begins:

Today the Court holds that nearly anyone who has “played an unusual and significant parent-like role in a child’s life” may sue for legal rights of visitation and control over the child even if the child’s parents remain actively involved in the child’s life and oppose the non-parents’ wishes. According to the Court, section 102.003(a)(9) of the Family Code dictates this outcome. I respectfully disagree.

Noting that the grandparents established actual care and actual possession, the dissent goes on to examine what is meant by “actual control.” Both the majority and the dissent cite dictionaries, as they must because the phrase “actual care, control, and possession” is not defined by the statute and it is not a legal term of art. The dissent posits, without citing any authority, that “control” here “means more than day-to-day or hour-to-hour supervision and discipline” and “means responsibility for the important choices that must be made for the child.” (While this is certainly a reasonable interpretation, I do not believe it is the only reasonable interpretation and the statute does not provide much guidance on the point.)

The dissent goes on to argue that the control contemplated by the statute can only take place after the child’s parents have relinquished control, on the theory that “control” must mean something different from “care” and “possession” or the word would be surplusage: “If all parental ‘control’ means is deciding ‘when [a child] gets up and goes to bed, how much television she watches, whether she gets dessert, [and] when she needs to go to the doctor,’ then I can discern no distinction between ‘care’ and ‘control.'” While it is important to give meaning to each word of a statute, reasonable minds can differ on what is taking an axiom of statutory construction too far.

Justice Guzman’s dissent cites how the parents remained involved in the child’s life and exercised their parental rights during the relevant time period to make an overlapping argument that “control” implies a single point of decision-making and that a “non-parent’s supportive participation in parental decision-making commensurate with actual control over the child is neither reasonable nor consistent with the plain meaning of the term.”

Even if one agrees the Supreme Court’s holding, one must acknowledge that is a relatively-broad reading that might open the door to more petitioners in the future. Stay tuned for further cases over what constitutes “control.”  I know a lot of parents who say that there is no such thing.

Post-Divorce Division: Opinions, June 12, 2018

The First District Court of Appeals released a memorandum opinion in Hazelwood v. Hazelwood, No. 01-17-00147-CV, concerning post-divorce division of property.

Husband and wife divorced in 2011. They signed an MSA and a decree was entered. In 2015, wife discovered documents that suggested husband had concealed several retirement accounts and other assets during the divorce. She filed a petition for post-divorce division of the omitted assets and then a supplemental petition for bill of review alleging husband committed fraud. In October 2016 they signed a second MSA which awarded all omitted property to wife, except for two Woodforest bank accounts, one of which belonged to his mother. After the second MSA was signed, husband discovered that his mother’s bank account number was incorrect in the MSA. He executed an affidavit regarding the mistake and how it should be corrected.

On November 7, 2016, the trial court entered a final order based on the MSA, which included the wrong account number. The next day, the parties’ attorneys filed an agreed motion to reform the final order to correct the error. On December 2, 2016, the trial court entered the reformed order, correcting the bank account digits.

In mid-December, wife’s attorney withdrew from representing her. Wife then filed a pro se motion for new trial, asserting she did not agree to the reformed order, that it decreased her award, and that her lawyer lacked authority to represent her when the agreed motion to reform the final order was filed. She also alleged that she discovered new evidence after the court signed the final order on November 7, 2016 indicating husband received oil production distributions during the marriage, despite husband’s representation in the 2011 MSA that he never received distributions or royalties from his oil production partnership. Wife also alleged husband transferred some retirement and life insurance assets to the partnership but she did not attach any evidence to the MNT in support of this assertion. A hearing was held on the MNT. Wife made arguments but no evidence was introduced at the hearing and the MNT was denied. Wife appealed.

Wife brought eleven issues on appeal. The first, that the 2011 divorce decree did not comport with the first MSA, was waived because wife did not make the argument in trial court and the error was not preserved. Her second, third, ninth, tenth, and eleventh issues were inadequately briefed and were thus waived.

As for issues four, five, and six, the COA found wife failed to demonstrate error. In her fourth issue, she argued the trial court erred by failing to vacate her supplemental petition, the one which included the bill of review, because she did not authorize the filing of the petition. But the trial court denied the request for bill of review, so it was unclear how the alleged error impacted the final order.

In her fifth issue, wife argued the trial court erred by failing to send her notice that the final order was signed on November 7, 2016, but she acknowledged that her attorney received notice of the final order and reformed final order.

In her sixth issue, she alleged her attorney lacked authority to represent her when he filed the agreed motion to reform the final order because the scope of the engagement excluded post-judgment work. The Court of Appeals found she failed to rebut the presumption that an attorney acts on behalf of a client with authority.

Wife’s seventh and eighth issues pertained to the trial court’s denial of the MNT. In her seventh issue wife alleged “that the court should have given her some relief from the agreed reformed order because her attorney acted without authority in filing the agreed motion to reform, because she had no notice of the entry of the final order or the agreed motion to reform, and because [husband]’s affidavit about the account number of Woodforest Bank account was made in bad faith.” In her eighth issue, she alleged the trial court erred by failing to hold a hearing on the allegation of newly discovered evidence she raised in her MNT.

A hearing on her MNT was held on February 9, 2017, at which she did not introduce any evidence to controvert husband’s affidavit, rebut the presumption that her husband lacked authority to act on her behalf, or any evidence to justify a new trial based on newly discovered evidence. The issues were overruled and the trial court was affirmed.







Overcoming a Premarital Agreement: Opinions, June 7, 2018

The Fourteenth Court of Appeals released a memorandum opinion in In re Veldekens, No. 14-16-00770-CV, primarily regarding a premarital agreement and the evidence necessary to overcome its separate property provisions.

The day before the parties married in 2007, they executed a premarital agreement which precluded the accumulation of community property during the marriage. Seven years later, wife filed for divorce. After a bench trial, the marital residence was confirmed as wife’s separate property. The husband appealed.

In his first issue, husband argued the trial court erred in ruling the marital property was wife’s separate property because he presented evidence that wife sold a one-half interest in the property to him, including a sales contract and a hand-written note acknowledging husband’s one-half interest. However, it appears from the opinion that either the husband did not provide or admit into evidence a copy of the purported sales contract or the sales contract itself failed to convey a one-half interest in the property to wife. Wife evidently testified that she did not intend to sell a one-half interest in the property to husband and the trial court could have determined her testimony was credible. And the trial court reasonably could have determined that the $50,000 paid by husband to wife was a gift. The Court of Appeals affirmed the trial court’s finding that the property was wife’s separate property and overruled the husband’s first issue.

This also led the COA to overrule the husband’s second issue. Under the terms of the premarital agreement, the parties were barred from making a claim for any property designated as separate property and making such a claim could entitle the other party to attorney’s fees for defending the claim. The Court of Appeals affirmed the trial court’s finding of attorney’s fees for wife in defending against husband’s claim for the marital property.

Finally, in his third issue, the husband alleged the trial court abused its discretion in not awarding him a full SPO. He made the novel argument that “[i]t is well past the time for Texas courts to discard the undefined legal vernacular of ‘best interest’ in resolving conservatorship issues and set forth viable guidelines for determining when a trial court can strip a parent of its alienable right to statutorily mandated periods of possession with his or her children.” The COA cited the Holley factors and then recited the trial court’s findings of fact that the husband uses abusive language around the children, calls the mother inappropriate and extremely vulgar names in the presence of the children, he becomes more frustrated and abusive toward the mother the longer his visitation period lasts, he is stressed by getting the children ready for school in the morning, the children are often stressed when the father participates in the morning routine, husband tended to exercise his possession at his parents’ house which was forty miles from the school, and for these reasons the children should not have overnights on Sunday or Thursday nights. The COA affirmed.



Contempt & Inability to Comply: Opinions, May 22, 2018

Three new memorandum opinions to discuss this morning! The First District Court of Appeals released its opinion in In re White, No. 01-18-00073-CV on contempt and the Fourteenth Court of Appeals released two memorandum opinions which primarily concern the division of the marital estate: Slagle v. Slagle, No. 14-16-00113-CV, and a barnstorming 32-page opinion in In re Mugford, No. 14-16-00436-CV.

In In re White, father filed an enforcement alleging four violations of a previously entered modification order against mother. That modification order incorporated an MSA signed by the parties. The trial court found two violations: 1) the mother canceled a counseling session; and 2) the mother violated the MSA requiring her to transport the child to and from each counseling session because the MSA required her to take the child to counseling at least once a month but she had taken the child to only four sessions in the six months following the agreement. Mother was held in contempt and placed on community supervision.

Mother filed a habeas corpus proceeding arguing the contempt order must be set aside because: 1) the underlying order was not specific enough to support contempt; 2) she did not violate the underlying order; and 3) the evidence showed an inability to comply with the requirements that the trial court imposed.

Regarding the mother’s cancellation of the counseling session, the Court of Appeals sustained the mother’s objection to this contempt finding because the provision in the underlying order required her to “follow the counselor’s recommendations regarding the frequency of the sessions.” Because mother’s actions in canceling a counseling session did not violate the terms of the order, the contempt finding was set aside.

The order did require her to bring the child for reunification counseling “a minimum of once a month.” The Court of Appeals found the evidence supported the trial court’s finding of a violation because the evidence showed that mother admitted that between March 2017 and December 2017 she took the child to a total of four sessions. Mother’s challenge to the violation finding was overruled.

But Mother also argued that she established a defense by proving an involuntary inability to comply with the underlying order. Specifically, she argued her son is a six-foot-tall, 17-year-old football player and she is unable to force him to attend counseling if he refuses. Both the mother and her son testified that the son refused to attend the canceled session, despite mother’s admonitions that he do so. The son further testified that after telling his mother he would not go to the session, he took the car and left the house. The Court of Appeals held that the mother and the son were interested witnesses and that the trial court was free to disbelieve their testimony and thus determine mother had the ability to comply and that the mother had not conclusively established her involuntary inability to comply. (While the holding of the Court of Appeals makes sense, one must wonder if mother could have established this defense and if so, how.)

In summary, the first violation was set aside, but the second was affirmed.

In Slagle v. Slagle, the husband challenged the division of the marital estate. Specifically, he argued: 1) the trial court erred in finding a business was his separate property and that the community estate was entitled to reimbursement for community funds used to benefit the SP business; and 2) the trial court violated his due process rights in several ways. The Court of Appeals affirmed the trial court.

Husband and wife married in 2000. Wife filed for divorce in 2014. At the time the divorce was filed, wife was employed full time, but husband (who had an MBA in accounting and finance) was not. He admitted that he was devoting more than sixty hours a week to “spending money” on a lawsuit involving his separate business. Husband also spent all of his free time day-trading, which he evidently was not successful at, losing $130,000 in 2013 alone.

Husband’s separate property business, Graphic Creations, existed at the time of the marriage, with two locations in amusement parks operated by Six Flags. During the marriage, Graphic Creations grew to six locations. Under its agreement with Six Flags, Graphic Creations paid 30% of its earnings to Six Flags. Wife testified that the business was profitable and husband had used it to pay his way through college. But the business hit hard times when Six Flags did in 2007. Six Flags increased the fee to Graphic Creations to 40% of earnings. Graphic Creations sued Six Flags over the increase. Wife testified that husband did not earn an income after 2007. Husband maintained an office for Graphic Creations until he shut down the business in 2013.

Wife testified that husband spent all of his time on the Six Flags lawsuit, leaving the house at 6 am and sometimes not returning until 2 am and that during this time he began taking Adderall. Husband returned the salary he paid himself from Graphic Creations which totaled $164,502. Wife testified that loans to Graphic Creations from her salary totaled $681,042.

The trial court found the community estate was entitled to a reimbursement from husband’s separate estate for $681,042 and that wife was entitled to a judgment of $340,521.00. To “pay” this judgment, wife was awarded the house, the entire 401(k), and the entire IRA, which still left a debt of $65,391. To offset this debt, husband was awarded the AMEX and Chase Visa credit card debts (which totaled only $42,000).

Husband challenged the division because, according to him, it awarded 100% of the community’s assets to wife and 100% of the community’s debts to him. The Court of Appeals overruled the issue because the evidence admitted supported the judgment.

In his second issue, the trial court violated his due process rights by 1) allowing wife to file amended pleadings days before the final trial; 2) wife failed to serve her trial exhibits and her inventory on him prior to trial; and 3) the trial court failed to adhere to various local procedural rules and the Texas Rules of Civil Procedure. But he failed to preserve error during trial and the issue was overruled. The trial court was affirmed.

Finally, in Mugford v. Mugford, wife challenged various portions of the divorce judgment including property and custody issues. Mother and father are Canadian citizens who moved to Friendswood for husband’s work. The parties separated in 2015 and a jury trial was held in December 2015. The jury named the parties as JMCs with mother as primary. The jury also found that grounds for divorce existed on the basis of cruel treatment by both parties and adultery by father. The jury also determined the characterization of eight items of property, six of which are challenged on appeal. Remaining issues, such as terms of possession and access and division of the marital estate, were decided by the trial court. A final decree was entered on March 16, 2016 and mother timely appealed.

In her first issue, mother claimed the trial court erred by employing a smaller geographic restriction in its judgment than the jury provided. That is, the judgment allowed her to designate the child’s primary residence within 30 miles of the city limits of Calgary, Alberta, Canada, but the jury’s answer allowed a radius of 50 miles. The Court of Appeals found that mother was misinterpreting the jury’s answer which gave a geographic area as “Calgary, Canada & 50 mi outward radius–or–Galveston County & contiguous counties.” Thus, the jury did not give her a 50 mile radius from the city limits of Calgary,  but 50 miles from the center of Calgary. Because the record did not reflect how far the city limits of Calgary are from its center, it also did not show that the geographic restriction in the judgment was smaller than that awarded by the jury. Nonetheless, the Court of Appeals found that the trial court did not enter the jury’s verdict in its decree and that the trial court was not permitted to “clarify” the jury’s answer. The issue was sustained and, in its conclusion, the COA modified the decree to reflect a fifty-mile outward radius of Calgary as the geographic restriction.

In her second issue, mother argued the trial court erred by granting father a SPO incorporating the “alternate beginning and ending possession time” found in section 153.317 of the TFC.  The decree stated that the minor variations in the possession order from the SPO were in the best interest of the child under TFC §153.253. (Only in her reply brief did mother assert the evidence in support of the variation was legally and factually insufficient, which the COA said was too late.) Because section 153.253 allows variation from the SPO and the evidence in the record of father’s work schedule, the child’s school schedule, and father’s frequent travel to Canada supported a variation, the issue was overruled.

Issues three through fifteen concerned the division of the marital estate. First, issues three through six concerned the admission of expert testimony. Mother’s third issue is that the trial court erred by allowing father’s expert to testify about the terms of the lines of credit used to purchase the Friendswood house because the expert had never read those notes and/or contracts and they were not produced prior to trial pursuant to requests for discovery. The fourth issue was overruled because it was inadequately briefed. In issue five, mother argued the trial court erred in admitting the same expert’s testimony and report (except for the reimbursement claims) because he erroneously characterized the bank debt as father’s separate liability and the resulting loan proceeds as father’s separate property. In issue six, mother argued the trial court abused its discretion by admitting the expert’s testimony because his misstatements of law rendered his opinions concerning the character of the marital property incorrect and unreliable. Mother had filed a Daubert motion before trial, a hearing was held, and the motion was overruled. Mother does not challenge the expert’s qualifications or the relevance of his testimony, but whether his testimony was based on a reliable foundation.  The trial court’s job is not to determine whether the expert’s conclusions are correct, but whether the analysis used by the expert is reliable. The bulk of mother’s complaint is that the expert mischaracterized the debt from three lines of credit as father’s separate property and the distributions from a funding entity as father’s separate property. As it was not the trial court’s job to determine the accuracy of the expert’s conclusion, issues three, five, and six were overruled.

In issues seven through nine, mother argued the trial court erred by admitting a loan document, Petitioner’s Exhibit 130. Mother objected to the admission of PE 130 on the grounds it had not been produced in response to her third supplemental request for production. She also claimed unfair surprise, denial of due process, failure to authenticate, and hearsay. Father acknowledged the document was not produced in discovery, but stated the requests for production were limited in time to the start of the marriage and the document was dated well before then. While mother’s brief included a footnote reciting the RFP (and father did not dispute that the recitation was correct) mother did not refer the Court of Appeals to the location of the requests in the record and the requests themselves fail to indicate whether or not they are limited to a specific time period. The COA held that mother’s “failure to cite to the relevant portion of the trial court record prevents this court from resolving this claim on its merits and therefore waives appellate review.” Issue seven was overruled (ouch).

Mother also argued the exhibit was not properly authenticated but father’s uncontroverted testimony was that the document was scanned and emailed to him from the Royal Bank of Canada and thus the record contained evidence that the document was what father claimed it was and thus the trial court did not abuse its discretion by overruling mother’s authentication objection. Issue eight was overruled.

Mother also objected to the document on hearsay grounds and the COA agreed that the the trial court erred in admitting the document over mother’s hearsay objection. But then the inquiry turned to whether the error probably caused the rendition of an improper judgment. Mother did not explain how the admission of PE 130 probably caused the rendition of an improper judgment. Issue nine was overruled.

In her tenth issue, mother complained she was not allowed to bring in her own expert after PE 130 was admitted. The COA found this point was inadequately briefed and thus overruled.

Issues eleven through thirteen related to the characterization of marital property and fourteen concerned mother’s reimbursement claims. The Court of Appeals went into great detail on the amounts and percentages of various accounts found to be father’s separate property, overruling issue eleven as to four out of five accounts. For one  account (“Account 1418”), the COA found that no witness testified about the account and that the exhibits did not corroborate father’s claim that the account was entirely his separate account and mother’s issue was sustained as to that account.

Regarding the real property in Friendswood, the jury found 78% of the house was father’s separate property and 22% was community property. The COA held that a reasonable fact finder could find there was clear and convincing evidence sufficient to overcome the community property presumption. Issue twelve was overruled.

In her thirteenth issue, mother argued the trial court erred in sustaining father’s objection to mother’s attempted explanation of Texas law on partition or exchange of community property during opening argument. The COA found the trial court did not err in sustaining the objection because P&E agreements were not relevant in this case.

Mother’s fourteenth issue argued the evidence was legally and factually insufficient to support the jury’s answer to the question concerning the community estate’s claim for reimbursement from father’s separate estate. The jury awarded $12,020 as reimbursement owed by father to the community estate. Mother asserted she was entitled to additional reimbursement, but the COA found she failed to establish as much and the issue was overruled.

Finally, in her fifteenth issue, mother claimed the trial court abused its discretion in dividing the community estate because the division was “grossly” disproportionate and awarded “the majority” of the community estate to father. First, mother’s argument that the community was entitled to $24,821 of Account 1418 was not evidence of an unfair and unjust division. But beyond that, to determine whether the assets of the community were divided in a just and right manner, the COA requires the court’s findings on the value of those assets and without those findings, the COA cannot know the basis for division, the values assigned to the community, or the percentage of the marital estate each party received. Neither the judgment nor the findings of fact or conclusions of law reflected the value the court assigned to each asset or liability or the value of the community property. The parties’ respective inventories do not substitute for the court’s findings and the issue was overruled.

In conclusion, the decree was modified to reflect the jury’s response concerning the geographic restriction, but the record did not reflect the trial court abused its discretion in the overall division, nor did the trial court abuse its discretion in ordering minor variations from the SPO. As modified, the decree was affirmed.










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.