Wasting $800,000 of Community Assets: Opinions, Jan. 30, 2018

This morning the Fourteenth Court of Appeals released its memorandum opinion affirming a divorce decree in Walzel v. Walzel, No. 14-16-00637-CV, over the husband’s challenge of the trial court’s finding of wasted community assets in the amount of approximately $800,000.

Husband and wife married in 1968. W filed for divorce in June 2014. The property division was tried to the bench; H was pro se at trial.

At the time the divorce was filed, the parties were retired. H had left the marital home in October 2013. W was disabled and could not leave the home or even take care of herself. After leaving, H lived with a girlfriend at a different residence between October 2014 and August 2015.

At trial, H testified that the parties bought a vacant lot in a planned development in Belize in 2010. He also admitted to withdrawals from his retirement account of approximately $703,000.00. He further admitted to withdrawals from non-retirement financial accounts. When asked where the money went, he testified that the money was “used for our pleasure, bills. Everything we did was for our estate. Everything we ever did was for us to live a better life and that’s where it all went.” W’s expert, a CPA hired to attempt to trace the approximately $800,000 in total withdrawals, testified that H did not provide her with or refused to provide her with sufficient documents. H did not call a financial expert to testify or any witnesses regarding the withdrawals.

After trial, the trial court signed a decree which divided the marital estate (awarding H the Belize property) and found H had wasted community assets in the amount of approximately $800,000 and charged H with the wasted funds “as part of the marital property division as if the estate was reconstituted to include the funds that were wasted.” H appealed.

In his sole issue, H argued the trial court abused its discretion because the evidence was legally insufficient. Specifically, H argued that W’s expert CPA based her analysis on assumptions not supported by evidence. The Court of Appeals found that it did not need to review these assumptions because they had no impact on the CPA’s ultimate opinion that she could not account for the unexplained withdrawals. Further, H himself admitted in his testimony that he withdrew the funds and did not adequately explain what he did with them. The Court of Appeals affirmed the trial court.


The Spousal Maintenance Presumption: Opinions, Jan. 4, 2018

This morning, the First Court of Appeals released its memorandum opinion in Arellano v. Arellano, No. 01-16-00854-CV, in which the husband appealed the trial court’s spousal maintenance award. The COA affirmed.

Husband and wife were married in 2005. Husband filed for divorce in February 2015. After bench trial, the trial court ordered Husband to pay spousal maintenance in the amount of $1,305.43/mo for five years. Husband appealed, arguing Wife failed to rebut the presumption against spousal maintenance and the trial court erred in awarding spousal maintenance for the maximum duration available under the statute.

Wife testified that when she was 16, in 1999, she moved in with Husband and her step-son. Husband prohibited her from working outside the home and paid for all the bills and food while she handled housecleaning and cooking and attending parent-teacher meetings for her step-son. During the marriage, she finished high school, earned credits at Houston Community College and started classes at the Coleman College for Health Sciences to become a surgical technologist. Wife further testified that she nearly finished the surgical-technology program but Husband prevented her from doing so. After Husband filed for divorce, Wife waited tables at a restaurant, and by the time of trial was working at Babies R Us, earning $1,553.57/mo, and that her monthly expenses were between $3,800 and $3,389 [sic]. She testified that she had researched several programs to find better jobs but because she could not attend them full time, it could take her five years to complete them. Additionally, earlier in the divorce, CPS had required her to have full time employment. On cross examination, she testified that since working at Babies R Us, she had applied for one other job but had not heard back.

Husband testified that he didn’t do anything to stop her from attending or finishing school. He claimed she missed school because she was drunk and that, on one occasion, he stopped her from going to school because she was drunk.

The presumption against spousal maintenance found in TFC section 8.053 provides that spousal maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in 1) earning sufficient income to provide for his/her minimum reasonable needs; or 2) developing the necessary skills to provide for the spouse’s minimum reasonable needs during a period of separation and during the time the divorce is pending.

The COA found that there was evidence in the record that, since the age of 16, Wife had tended to the house, prepared meals, and cared for the step-son and the couple’s children. Also, during the marriage, she attempted to bolster her education but Husband prevented her from doing so. The trial court was free to resolve the conflict in testimony over whether Husband allowed her to work during the marriage in Wife’s favor. The COA found the trial court did not abuse its discretion in finding Wife overcame the presumption in 8.053 because she exercised diligence in earning sufficient income but her efforts were hindered by her lack of education. She was also hindered in developing skills by CPS’s requirement for her to have full-time employment.

Husband also challenged the trial court’s awarding of spousal maintenance for five years, the maximum available under the statute. The COA found that Wife testified that to earn more money and get a better job, she would need to start an educational program that would take five years to complete. As such, there was factual and legally sufficient evidence to support the award.

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.

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.

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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