The Jury Demand Strikes Back: Opinions, July 25, 2017

The First and the Fourteenth Courts of Appeal released memorandum opinions yesterday, on jury demands and, essentially, the unlikelihood of success on appeal where a reporter’s record is not filed.

In Wheeler v. Wheeler, No. 01-16-00642-CV, the parents filed dueling mods. The father (a criminal defense lawyer)  filed a jury demand and paid the fee. The proceedings in trial court were, to use the First’s word, “rancorous.” The mother moved to strike the father’s jury demand as a sanction for failure to pay court-ordered amicus fees. The trial court granted the request and struck the jury demand. The father moved for reconsideration of the order, arguing the order violated his constitutional right to a jury trial, but the motion was denied.

After the conclusion of a bench trial, the trial court increased the father’s child support obligation and reappointed the parents as JMCs, with mother as primary. Father appealed.

The refusal to grant a timely-requested jury trial is harmless error only if there are no material fact issues. A party is entitled to a verdict by a jury on the issue of which JMC is to be primary. The First cited its opinion in In re I.R.H. & Z.T.H., No. 01-15-00787-CV, (which I previously blogged about here) for the proposition that “[a] trial court abuses its discretion by striking the jury demand of a party for failure to pay the amicus fee when that party has raised” a material fact issue to be decided by the jury under Tex. Fam. Code §105.002(c). It is surely not a coincidence that the First cited In re I.R.H., and not just because the relevant facts are nearly identical, but because the trial court in that case and the present case are the same.

Because the father presented some evidence in support of his claim to be appointed primary JMC, the trial court erred by depriving him of a jury trial on that issue. The case was reversed and remanded for reinstatement on the jury docket.

In In re Adamski, No. 14-16-00099-CV, the mother and father had one child together during the marriage. A jury trial was held in May, 2015, and remaining issues were tried to the bench in October, 2015. The father was represented by counsel during the jury trial portion, but not the bench trial portion. The father did not appear for the third day of the bench trial portion. On November 13, 2015, the father filed a motion for continuance in which he made allegations of physical abuse of the child by the mother, but no hearing was held on the motion.

On February 2, 2016, the trial court entered a final decree which appointed the mother primary JMC. On appeal, he also did not file a reporter’s record (cue ominous music).

In his first issue on appeal, the father argued the trial court erred in ordering above-guideline support, relying upon his tax returns attached to his inventory which was filed with the trial court. But because he did not obtain a reporter’s record, the Fourteenth could not determine if the returns were admitted into evidence at trial or any other evidence regarding his income was admitted. The issue was overruled.

In his second issue, the father argued the trial court erred in ordering a division that did not conform to the parties’ premarital agreement. But because the COA did not have the reporter’s record, it could not tell if the premarital agreement was admitted into evidence. The issue was overruled.

In his third issue, the father argued the trial court erred in not granting his motion for new trial. But because he never requested a hearing on the motion, the issue was waived. Also, the COA stated in a footnote that even if he hadn’t waived the issue, he did not meet his burden under Craddock in the MNT. The trial court was affirmed.




Pleading Affirmative Defenses: Opinions, July 20, 2017

The Fourteenth Court of Appeals released a brief memorandum opinion in Moore v. Moore, No. 14-15-00859-CV, yesterday. Johnnie Moore sued his ex-wife Kathalean Moore for breach of an agreement incident to divorce. Kathalean countersued for enforcement of the property division. Under the AID, Kathalean was to turn over the marital residence and Johnnie was to pay Kathalean $1.4m in installments. Johnnie alleged that when he took possession of the property, it was in shambles and had been stripped of its fixtures. Kathalean alleged that Johnnie had failed to pay her $665,960.00 as required by the AID. The jury found for both parties, awarding Johnnie $183,600.00 on his conversion claim, $136,592.00 on his breach of contract claim, and $25,000 on his civil theft claim, and awarding Kathalean $650,000.00 on her breach of contract claim. The trial court disregarded the jury’s findings as to the breach of contract and civil theft claims because they represented a double recovery. Johnnie appealed.

In his first issue, Johnnie argued the trial court by denying his motion to disregard the jury’s finding that Johnnie breached the agreement. Johnnie argued that Kathalean had breached the agreement first and because she materially breached the agreement first, he was excused from further performance. While this is a perfectly valid affirmative defense, it appears Johnnie failed to plead it and it was not tried by consent. Thus the defense was waived. Even if he had pled it, the Court of Appeals noted Kathalean’s counter-petition alleged Johnnie missed two payments before she surrendered the residence.

In his second issue, Johnnie argued the trial court erred by disregarding the jury’s findings in Johnnie’s favor on his claims for breach of contract and civil theft. The COA found these damages arose from the same facts, same injuries, and same measure of damages and thus constituted an impermissible double recovery. The judgment was affirmed.

Modification in Less Than a Year & Partial Revocation of a Rule 11: Opinions, July 11, 2017

Yesterday, the Fourteenth Court of Appeals released a published opinion, In re J.R.P., No. 14-15-00912-CV, and a memorandum opinion, In re D.R.G., No. 14-16-00023-CV. The published opinion concerns modifications of custody within a year of a final order and the memorandum opinion is on partial revocation of a Rule 11 agreement.

Taking the published opinion first, In in re J.R.P., a conservatorship order was entered in December 2013, naming the parents as JMCs with mother as primary. Father filed a mod in May 2014 and alleged in his affidavit that the mother had been taking drugs. At a temporary orders hearing in June, the mother requested the case be dismissed because father’s affidavit was not sufficient to support a less-than-a-year mod. The trial court declined to dismiss the case and the parties agreed the mother would submit to drug testing the next day. Within a few weeks, the father filed an amended mod petition with a revised affidavit which stated the mother had tested positive for drug use. The court conducted a temporary orders hearing and found the child’s living environment with mother endangered the child. The trial court awarded father primary and mother supervised visitation.

Trial took place in May and July 2015 at which further evidence of mother’s drug use was presented. Mother represented herself pro se. In August, the trial court granted the father’s petition to modify and entered an order appointing father and mother as JMCs with father as primary. After her motion for new trial was denied, mother appealed.

In her first two issues, mother argued the trial court erred in not dismissing the mod after finding father’s first supporting affidavit was insufficient and when it ruled the second affidavit was sufficient. The Court of Appeals found that the trial court did not abuse its discretion because the statute does not require dismissal and the trial court’s findings of fact and conclusions of law set forth its findings that the second affidavit was sufficient under the statute.

In her third issue, mother argued the trial court erred by granting the mod when there was no material and substantial change. This argument did not get very far because the evidence showed that since the entry of the prior order in December 2013, the mother had tested positive for drugs, refused to participate in CPS services or drug testing, admitted to using drugs (including crystal meth and marijuana), and there was testimony that mother’s behavior was erratic. The opinion also includes the following sentence presented without comment: “To the extent [the mother] argues that she was unstable and had a drug habit prior to the agreed final order in December 2013 and her use of drugs after that order was a continuation of established behavior, the trial court could have rejected this argument based on [the father]’s testimony that she had passed a drug test prior to the final order and he thought she had stopped using drugs.” The COA overruled the third issue.

In her fourth issue, the mother alleged the trial court erred by relying on “hearsay statements of an admitted perjurer,” i.e. the father. The COA found there was sufficient non-hearsay evidence to support the judgment.

The COA overruled the mother’s fifth issue concerning admissibility of evidence because the issue was not preserved. The judgment was affirmed.

In In re D.R.G., parents who had been named JMCs in the prior order filed competing mod petitions. They then signed a Rule 11 agreement on all issues, including their agreement to remain JMCs with father’s child support increasing. One provision allowed the child to travel by air without the father’s supervision upon reaching the age of ten. But in his amended petition, the father requested an order allowing the child to fly alone beginning at the age of five. Four months after signing the Rule 11, the father filed a motion for partial revocation of the Rule 11, specifically with regard to the travel age provision.

At trial, the trial court requested evidence to show the agreement was in the best interest of the child. The mother testified that she did not believe it was in the child’s best interest to fly alone at the age of six. The father testified that the child would be accompanied by a flight attendant and the child would never be left alone and would not be in danger. He also testified that he felt coerced into authorizing his attorney to sign the Rule 11 agreement because the mother had allegedly refused to turn over possession of the child to be the ring-bearer in the father’s wedding unless he signed the Rule 11.

The trial court signed an order which found the child could travel by air unaccompanied after the age of five. The mother appealed, seeking modification of the judgment to prohibit the child to fly alone until the age of ten.

On appeal, the mother asserted two issues: 1) the evidence was insufficient to support the father’s allegation that he was under duress and coercion when he signed the Rule 11 agreement; and 2) the Rule 11 was unambiguous and the trial court was required to sign a judgment consistent with the Rule 11 agreement because a) the father withdrew his consent to only a portion of the agreement which is not effective to withdraw consent because the agreement was an integral whole, and b) the father’s attorney signed the Rule 11 agreement with the father’s permission.

The Court of Appeals found the father’s partial revocation was sufficient to prevent the trial court from rendering an agreed judgment and the trial court did not err in rendering a judgment on the issues raised by the parties’ petitions in accordance with the best interests of the child.

The COA found that the father’s partial revocation was effective, contrary to the mother’s argument, citing the “familiar principle” that partial revocation of a Rule 11 prevents a court from entering an agreed or consent judgment.  The agreement was not an MSA, which would have required the trial court to enforce the MSA, regardless of a party’s revocation of consent. Additionally, the mother did not challenge the trial court’s best interest finding, so the COA was not required to review it. The judgment was affirmed.








Donald Sr. & Jr. in a Comedy of Heirs: Opinions, July 6, 2017

The Fourteenth Court of Appeals released its memorandum opinion in In the Matter of the Marriage of Carolyn Clark Kennedy and Donald Ray Clark Sr. and in the Interest of Donald Ray Clark, Jr. this morning, which illustrates the necessity of getting names right on title documents.

Donald Clark Sr. leased a property in Galena Park, Texas for most of the 90’s where he lived with his four children, including Donald Jr. In 2000, the owner of the property executed a quit claim deed to the property in Donald Jr.’s favor.

Donald Sr. and Carolyn Clark were married in 1996. She and her three children moved into the Galena Park house. A divorce petition was filed in 2012. In the divorce, Carolyn claimed the Galena Park house was community property. Donald Sr. disputed the characterization.

After a bench trial (and some strange procedural twists and turns), the trial court ruled the Galena Park property was community property, ordered the property sold, the proceeds divided as community property, and that Donald Jr. take nothing.

On appeal, Donald Sr. and Jr. argued the trial court erred by mischaracterizing the house as community property because the quit-claim deed vested title in the property to Donald Jr.

The evidence included the original lease dated May 7, 1992. The Lessee was listed as “DONALD RAY CLARK JR.” But it was signed “Donald Ray Clark Sr.” with “JR.” crossed out.  The quit-claim deed, on the other hand, executed by the Lessor quit-claims the house “unto the said Donald Ray Clark, Jr., his heirs and assigns…” Donald Sr. testified it was intended for the title to be in Jr.’s name and that Donald Jr. is the owner of the property. Donald Jr. was 16 at the time of the quit-claim deed. Donald Sr. testified he was not asking the court to award him the property. Donald Jr. also testified that he was the owner and that the property should be awarded to him.

However, the evidence also included a General Warranty Deed dated September 29, 2001 in which Donald Sr. claimed to be the executrix of Donald Jr.’s estate. At trial, Donald Sr. denied the purpose of the General Warranty Deed was to correct title from Donald Jr. to Donald Sr. He testified that the purpose of the General Warranty Deed was to obtain a loan and put the Galena Park home up as collateral. Having received the loan proceeds of $39,000, Donald Sr. and Carolyn split the proceeds between them and Donald Sr. did not give any to Donald Jr. The loan was paid off in 2015 before trial.

In 2005, Donald Sr. and Carolyn executed a home equity loan on the house for $37,999.90. Then, on December 16, 2011, Donald Sr., Donald Jr. and Carolyn executed a tax lien deed of trust on the house. Donald Sr. testified the tax lien was taken to pay delinquent taxes on the home and he was paying it back.

Carolyn argued the purpose of the 2001 General Warranty Deed was to “put the public on notice that [the property] was owned by” Donald Sr. and Carolyn. But, the Court of Appeals pointed out, there was no evidence that title transferred from Donald Jr. to either Donald Sr. or Carolyn. Texas law does not restrict the ability of minors under the age of eighteen to own property. The 2001 General Warranty Deed is not signed by Donald Jr. It is signed only by Donald Sr. and Carolyn. In other words, regardless of the parties’ intentions, the quit-claim deed effectively transferred title to the property to Donald Jr.

As such, the Court of Appeals found the trial court erred by finding the house was community property, reversed the judgment of the trial court and the order that the house be sold, and remanded the matter for “consideration of Carolyn’s other grounds for relief and Donald Jr.’s cross-claim.”  The remainder of the judgment was affirmed.

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Modification Backfire: Opinions, June 22, 2017

The Fourteenth Court of Appeals released its memorandum opinion in Koenig v. Koenig, No. 14-16-00319-CV, affirming the modification entered by the trial court. The case serves as a cautionary tale about filing a modification when the tables may be turned on the first parent to file.

Mother and Father were divorced in 2013 and both were appointed JMCs, with Father as primary. Subsequently, Father filed a mod requesting Mother’s access be denied or supervised. Mother filed a cross-mod, asking that the Father be denied access to the children and that she be appointed SMC. Father nonsuited his mod and the case went to trial on Mother’s claims.

During a trial to the bench, the court heard testimony from a psychologist and an investigator appointed to conduct a social study. In its final order, the court ordered the parties remain JMCs, but that Father have a step up to an SPO. In other words, even though the father had been the first to file a mod asking the mother’s access be denied or strictly limited, he was the one who wound up with curtailed visitation. Father appealed.

In his first issue, Father alleged legally insufficient evidence and that the trial court erred in relying on the psychologist’s expert testimony. In his second issue, he alleged he received ineffective assistance of counsel during trial. In his third issue, Father contended his due process rights were violated with respect to notice of a hearing on temporary orders.

Taking the last first, the Court of Appeals overruled the third issue because the COA lacks jurisdiction to consider challenges to temporary orders because mandamus is the appropriate vehicle to attack a TO.

Father’s first issue is really two separate inquiries: the psychologist’s expert qualifications and the sufficiency of the evidence. Addressing the expert’s qualifications first, the COA found that the expert has a doctorate in developmental psychology, has a clinical practice in which she works with children and families, and that a large part of her practice includes performing psychological and custody evaluations for courts. Not surprisingly, the COA overruled the father’s objections to her qualifications.

The COA also found that there was some evidence of a substantive and probative character to support the judgment. Specifically, there was evidence of the father’s attempt to alienate the children, including evidence that the father did not notify the mother of the children’s activities and events, the children called her by her first name, the children were demeaning to her after the divorce, the children’s school apparently believed the father was an SMC, etc. The psychologist recommended the father complete counseling for parental alienation. The COA overruled the father’s legal sufficiency challenge.

The father’s third issue was overruled because ineffective assistance of counsel challenges are generally limited to criminal cases.

Non-Parent Standing in a Modification, Docket Sheets, & Immigration Status: Opinions, June 1, 2017

The First District Court of Appeals released a memorandum opinion and a published opinion last Thursday. The published opinion runs forty-one pages and concerns non-parent standing in a SAPCR and the proper standards to apply. The memorandum opinion is notable because of appellant’s allegations regarding her immigration status bearing on the custody determination.

In Rolle v. Hardy, No. 01-16-00402-CV, the mother of the two children at issue had died of cancer. Appellant is the maternal uncle of the children; Appellee is their father, who had previously been named a JMC with the mother. The uncle filed a modification which was dismissed by the trial court. The sole issue on appeal is whether the uncle established he had standing under Tex. Fam. Code §102.004(a)(1), Standing for Grandparent or Other Person.

The trial court had held a hearing on standing at which the uncle, the father, and numerous other friends and family members of both the mother and the father testified. The factual recitation runs about ten pages but it can be summarized by stating a number of people testified as to the merits of the uncle in the children’s life and made serious allegations concerning the father’s fitness for parenting. (It must be said there was testimony in the father’s favor as well)

Under §102.004(a)(1), a grandparent, uncle, or aunt can have standing to file suit requesting managing conservatorship “if there is satisfactory proof to the court that… the order requested is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development.” The court of appeals noted that this standing provision is unique to family law because it requires proof of specific facts that may be relevant to the underlying case.

The court of appeals looked to the trial court’s docket sheet as evidence of its determination that the uncle did not meet his burden in establishing standing. The COA determined the trial court applied the wrong standard because the docket sheet indicated that the trial court required the uncle to provide “satisfactory proof that an order appointing him as the sole managing conservator of the child[ren] is necessary because the children’s present circumstances in the care of [the father] would significantly impair [their] physical or emotional development.” (emphasis added by COA) This, the COA held, was not accurate because it did not reflect the uncle’s pleadings or the requirements to establish standing under section 102.004(a)(1). The uncle had to establish the father‘s care of the children as SMC would significantly impair their physical health or emotional development, not that he, the uncle, should be appointed SMC instead.

Additionally, the COA found the trial court focused on the present circumstances of the children and improperly de-emphasized the past actions and circumstances of the parties, particularly the father’s extensive criminal history.

The COA sustained the uncle’s complaint on appeal and remanded for further proceedings in light of the opinion.

In Turrubiartes v. Olvera, No. 01-16-00322-CV, the mother appealed the trial court’s decision awarding the father SMC and PC to the mother. The evidence showed that, inter alia, the mother was not a legal citizen of this country, that she had been living here peaceably for six years, that she had secreted the children from their father, refused to tell him where they were living and denied him access to the children, and that the mother’s brother-in-law approached the father and threatened to kill him or have him killed if he attempted to visit the children. On appeal, the mother argued that the trial court improperly based its ruling on her immigration status but the Court of Appeals found that there was sufficient evidence in the record to support the SMC/PC finding.



Record on Appeal, Defamation, & Ancient Cauldrons: Opinions, May 23, 2017

The First District Court of Appeals released one family law opinion this morning and two published opinions that I just found interesting and wanted to share with you, even though they are not related to family law.

Allen v. Porter, No. 01-16-00823-CV, concerns retroactive child support, but is really a reminder to obtain a record when appealing. The mother’s sole issue on appeal was that the trial court erred in not awarding retroactive child support from the date of the child’s birth. But the mother did not produce a record on appeal which, the Court said, “makes it impossible for the appellate court to determine that the trial court abused its discretion in making the ruling.” The Court affirmed the trial court.

In Johnson v. Phillips, No. 01-15-00173-CV, Houston attorney Michael Phillips wrote a book (Monster in River Oaks) about his own client Dinesh Shah’s sordid infiltration and lengthy abuse of the Johnson family. The family sued Phillips (and his law firm and publisher) for defamation, alleging the book libeled them. Phillips’ motion for summary judgment argued the book constituted a fair report of the 2008 trial. The trial court agreed and granted the summary judgment and the Court of Appeals affirmed.

The published opinion in Hatzenbuehler v. Essig, No. 01-16-00515-CV, has easily the most interesting first paragraph of a special appearance case ever:

This appeal from a special appearance arises out of a dispute between German citizens concerning the provenance of a cauldron discovered in a Bavarian lake. Josef Hatzenbuehler sued Jens Essig, alleging that Essig and others falsely represented the cauldron to be of ancient Celtic origin. With Essig’s assistance, Josef purchased the cauldron at a Swiss bankruptcy sale. Josef alleged that he later discovered that the cauldron was likely created by the Nazis in the 1940’s, making it significantly less valuable.

When Hatzenbuehler sued Essig in Harris County, the trial court granted Essig’s special appearance. And the Court of Appeals affirmed.