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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

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

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

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.

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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Buyer’s Remorse: Challenging MSAs, Opinions, Sept. 21, 2017

The Fourteenth Court of Appeals released a published opinion this morning, In re C.C.E., No. 14-16-00571-CV, on the revocability of MSAs.

Four years after mother and father divorced, the mother filed a mod seeking changes in visitation and child support. The parents attended mediation and signed a binding, irrevocable MSA which included an expanded SPO, an injunction against corporal punishment, communication through OFW, changes to the rights and duties, and designating the child’s elementary school. The MSA also included a provision which barred the mother from seeking an increase in child support for at least 13 months. The parties then signed an agreed order, stating they agreed to the order in form and substance.

Two and a half months later, and before the trial court had signed the agreed order, the mother sought to revoke her consent to the agreement. After a hearing, the trial court signed the agreed order. There was no reporter’s record from the hearing. (If you’re like me, this is the point at which you just know in your appellate guts that this is going to be affirmed)*

The trial court also issued findings of fact and conclusions of law which the mother did not challenge on appeal. These FF/CL include the MSA is valid under TFC 153.0071(d), that the mother’s claims of domestic violence predate not only her signing the proposed agreed order but the prior order, and that there was no allegation that domestic violence occurred any time pertinent to or during the suit or mediation.

In her motion for new trial, the mother argued: 1) the MSA–and thus the agreed order–was void because it restricted the parties’ right to seek changes in child support; 2) the MSA contained language making it subject to the court’s approval and thus the mother could withdraw her consent before the order was signed; and 3) the MSA was made due to undue influence caused by prior family violence and she was not able to present evidence on the family violence allegations. The MNT was overruled by operation of law and mother appealed.

On appeal, the mother alleged issues which echoed her MNT: 1) the MSA is void because the child support freeze provision is illegal and against public policy; 2) the MSA’s provision that it was subject to the trial court’s approval allowed her to revoke her consent; 3) and that the trial court may not refuse to hear evidence of alleged family violence after the parties have agreed upon an MSA.

On the first issue, the COA presumed, without deciding, that the child support freeze was illegal and violated public policy. But that does not make the entire MSA void, even though the MSA lacked a severability clause. Generally, if a provision in an agreement is illegal or violates public policy, that provision may be severed if it does not constitute the essential purpose of the agreement. The mother did not assert on appeal that the freezing provision cannot be severed and leave the rest of the agreement enforceable. As such, the mother did not brief the point and waived the argument on appeal.

Regarding mother’s argument that she could withdraw her consent to the MSA before the final order was signed because the MSA was “subject to the Court’s approval,” the COA (not surprisingly) disagreed as she could not revoke her consent to an MSA that complied with 153.0071(d).

Finally, regarding the trial court’s refusal to hear evidence on the family violence exception, the COA noted that the mother did not point to any place in the record where the trial court denied her the opportunity to present the evidence and thus the error was not preserved.

The trial court was affirmed.

*  I feel like this should be called something like the Point of No Return or the Breaking Point, because it is the inflection point at which the reason and facts gather momentum to the inescapable conclusion.