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.

 

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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.

Is It All in the Timing or the Pleading? Res Judicata & Child Support Enforcement, Opinions, Sept. 19, 2017

The Fourteenth Court of Appeals released its memorandum opinion this morning in In re J.A.L., C.C.L., Jr., C.N.L. & M.R.L., No 14-16-00614-CV, concerning res judicata of enforcement suits. It is also yet another win for friend-of-the-blog, Janice Berg!

Mother and father divorced in October 2008. Father was ordered to pay $5,000/mo in child support. Mother brought her first enforcement suit on April 9, 2013, alleging father failed to make 54 monthly child support payments from November 1, 2008 through April 1, 2013 and requesting he be held in contempt for these violations. The motion also included four future monthly payments (from May through August 2013). A hearing was held on March 3, 2014 at which the trial court granted mother’s motion, finding father in contempt on all 58 violations, and signed a judgment for the arrearages. The order listed 58 unpaid months and concluded that as of August 1, 2013, father owed $168,750.00 plus interest in child support. The order also included a Mother Hubbard clause, that all relief not requested is denied.

Mother filed a second contempt proceeding on July 31, 2015, seeking relief for father’s failure to make child support payments from September 1, 2013, through March 1, 2014. Father filed a motion to dismiss the matter on the grounds of res judicata, alleging that the violations for the seven months before the March 3, 2014, hearing should have been heard  at that hearing. The trial court granted the motion to dismiss and mother appealed.

Mother made four arguments on appeal:  (1) res judicata does not apply because these claims were not litigated and could not have been litigated in the first enforcement proceeding; (2) Father did not meet his summary judgment burden; (3) notice requirements applicable to enforcement proceedings foreclosed Mother’s ability to recover in the first enforcement proceeding for the September 2013-March 2014 arrearages; and (4) recent decisions from the Supreme Court of Texas limit the use of affirmative defenses in enforcement proceedings. The Court of Appeals agreed the first won the day and thus it need not reach the others.

The elements of res judicata are:

1. There is a prior judgment on the merits by a court of competent
jurisdiction;
2. the party currently asserting a claim was also a party to the prior action
or was in privity with a party to the prior action; and
3. the current claims were raised, or could have been raised, in the prior
action.

Mother conceded father met the first two elements, but disputed the third.

Father argued the enforcement motion request for contempt based on prospective violations shows that the September-March arrearages were litigated in the first enforcement proceeding. The COA rejected this argument because: 1) the motion only named the four violations from May through August 2013; 2) the reference to prospective violations was included in the motion’s request for contempt and contempt and money judgment are separate remedies; and 3) the order specifically stated the judgment was for arrearages through August 1, 2013, not prospective violations.

The father also argued the March 2014 order’s Mother Hubbard clause established that the Spetember-March arrearages were litigated in the first enforcement proceeding. The COA rejected this argument because the Supreme Court of Texas has advised courts to exercise caution when attaching significance to Mother Hubbard clauses that are “open to interpretation.” Because the order specifically stated the judgment was for arrearages “as of August 1, 2013,” concluding that the September-March months were litigated as well was a bridge too far.

Father also argued res judicata applied because the September-March months could have been heard in March but mother effectively forever waived her rights to do so when they were not. The COA held that these arrearages were not mature when the first enforcement proceeding was filed in April 2013. (“Res judicata precludes the litigation of related claims that were mature at the time an earlier lawsuit was filed.”). Conversely, res judicata does not bar a claim that was not mature at the time the earlier proceeding was filed. The key date for maturity here is the date of filing, not the date of hearing. The COA further noted Section 157.002(e) of the Texas Family Code provides a movant “may allege repeated past violations of the order and that future violations of a similar nature may occur before the date of the hearing.” (emphasis added) The COA found this language was permissive, and that mother had the option of asserting future violations when she filed her first enforcement proceeding and she did so, but she did so for only four future months, not all months prior to hearing. The COA found that father’s argument would require a movant to assert every future occurrence before the hearing, an interpretation the COA found was contrary to the discretionary language of 157.002(e).

The COA reverse the trial court’s order granting the father’s motion to dismiss and remanded for further proceedings.

Supervised Visitation & Judgment Nunc Pro Tunc: Opinions, Sept. 12, 2017

The Fourteenth Court of Appeals released a published opinion and a memorandum opinion this morning. The published opinion is on supervised visitation and the memorandum opinion is yet another installment in the Reynolds Saga, which I previously blogged about here and here and here.

In In re A.G. & A.F.G., No. 14-16-00341-CV, a father challenged the trial court’s modification order which required the father’s visitation be supervised and the denial of his motion for enforcement against the mother.

Mother and father were divorced in Austin County in 2006. Under the decree, mother had primary custody of their two children and father had an SPO. In 2014, the father filed a modification seeking primary custody of the son who had not yet aged out. After a hearing, the trial court entered TO awarding primary custody to the father. The case was then transferred to Harris County. In March 2015, the parties entered into a Rule 11 agreement under which the child returned to live with the mother as primary and father had a SPO. But in his first amended petition, the father reiterated his request for primary. In her second amended petition, the mother requested the father be denied access to the children or, alternatively, supervised because he posed a danger to the children’s physical and emotional well-being. In November 2015, the father filed a motion for contempt, alleging the mother had been preventing his visitation with the children under the Rule 11 agreement.

The case was tried in March 2016. A licensed professional counselor testified she had made a written report to CPS regarding allegations of the father beating the children. The father denied having struck the children. The mother testified to having observed bruises on the child when he returned from visitation with the father and that the children had told her that the father beat them. The children conferred with the judge in chambers. At the end of trial, the judge ruled the father’s visitation needed to be supervised and denied the father’s enforcement.

The COA noted that the record indicated findings of fact were not requested or entered and therefore the court must infer that the trial court made all findings necessary to support its judgment (reading between the lines: no dice for appellant). Because there was some evidence of the father posing a physical danger to the children which was legally and factually sufficient, the ruling was affirmed.

In his second issue, the father alleged the trial court abused its discretion by denying his motion for enforcement and granting the mother’s motion for judgment which evidently objected to the father’s motion for enforcement as not complying with the statutory requirements of an enforcement motion. At trial and before signing the judgment, the trial court had questioned whether the father’s motion met the requirements of TFC 157.002. The COA found the motion was deficient in several ways (it did not identify the provisions of the decree allegedly violated, or state the times and locations in which the order was violated). The father also filed a supplemental motion which also failed to provide the date, place, time, or manner of noncompliance for each alleged violation. The father argued that the mother waived these objections by not filing special exceptions, but the COA noted that these deficiencies were “the very subject of” the mother’s motion for judgment.

Both of father’s issues were overruled and the trial court was affirmed.

In In re Reynolds, No. 14-17-00614-CV, the COA partially granted and partially denied a petition for writ of mandamus.

The parties, Wilma and David Reynolds, were divorced in July 2008. A final decree was signed in May 2009. Wilma appealed the property division and the COA affirmed it because Wilma had waived her right to appeal by accepting the benefits of that judgment. More than eight years after the decree was signed, she filed a motion for judgment nunc pro tunc in July 2017 asking the trial court to modify certain provisions of the decree based on alleged clerical errors which, she argued, did not conform to the trial court’s pronouncement of judgment at trial. David responded, asking the trial court to deny the motion and to impose sanctions on Wilma and her attorney for prosecuting an allegedly frivolous case. After a hearing, the trial court denied Wilma’s motion and granted David’s motion, ordering Wilma’s attorney to pay a penalty and attorney’s fees in the amount of $40,000.

The COA observed that the law states that proof of a difference between the judgment rendered and the judgment entered is not enough to require correction by JNPT; there must also be a fact finding, support by evidence of the trial judge’s personal recollection, that the variance resulted from clerical error.

Wilma asserts the oral division of property differed from the written judgment as to four different categories of property. After examining each category, the oral pronouncement, the findings of fact and conclusions of law and the written decree, the COA disagreed on each and affirmed the trial court.

Turning to the sanctions order, the opinion paused to examine the parties and the procedural posture. Specifically, the sanctions order is predicated on conduct of Wilma and her attorney and, though not crystal clear, it appears to impose sanctions on both Wilma and her attorney. But Wilma was the only named relator in the mandamus petition and Wilma only has standing to challenge the sanctions awarded against her. That is, because her attorney did not seek appellate review in his own capacity, the COA can only address the sanctions order as it relates to Wilma.

Nonetheless, a trial court cannot enter a sanctions order after its plenary jurisdiction has expired and the trial court’s plenary jurisdiction had long since expired in this case and thus the sanctions order was void.

Will this be the end of the Reynolds Saga? Time will tell.

2 Weddings, 2 Divorces, & a Bill of Review: Opinions, Sept. 7, 2017

Not surprisingly, there appears to have been a backlog caused by Harvey, with both the First and Fourteenth COA issuing a dozen or more opinions each today.

The First released one family law memorandum opinion in Grant v. Grant, No. 01-16-00581-CV, regarding bills of review. That sounds boring but the story is not. Howard and Ariann were married and divorced twice. They were first married in 1994. Ariann filed for divorce in 2010. While the divorce was pending, the parties continued living in the same marital residence. Also while the divorce was pending, Howard was convicted of health-care fraud and sentenced to three years in prison. They tried to set trial for before he shipped off to Club Fed. About a week before trial, Ariann’s lawyer came to the house to depose Howard because he had an ankle monitor on and generally was not allowed to leave the premises. The notice of trial was sent to Howard who was pro se at the time. The COS stated it was sent to him by CM/RRR and U.S. regular mail. Ariann appeared for trial, but Howard did not. The trial court awarded her property he now contends was his separate property.

A year after the divorce, and while Howard was still incarcerated, they remarried. While Howard was in hoosegow, Ariann sold some of the property awarded to her in the first divorce (which Howard now says was his separate property). In late 2015, they divorced for the second time. After the decree for the second divorce was entered, Howard filed a bill of review attacking the decree from the first divorce.

At the hearing on the bill of review, Ariann testified Howard had actual notice of the upcoming first trial date and that he could have gotten permission to leave the house to appear in court. Howard alleged that they were sleeping in the same bed, Ariann did not inform him of the trial date and that she misled him to believe she had decided not to pursue the divorce. The trial court denied the bill of review and Howard appealed.

The COA noted that the bill of review was filed more than four years after the first decree was entered and that it would thus be time-barred unless Howard established extrinsic fraud. Howard alleged she committed fraud in two ways: 1) misleading him by waking up, kissing him on the cheek, and going to court to obtain a default judgment when she knew she never told him the case was set for trial; and 2) by providing the court with the address of the marital residence instead of prison in Beaumont because she knew he “was not going to be at the marital residence.”

Taking the second first, the COA found that to show extrinsic fraud, Howard would have to show that Ariann knowingly but falsely certified to the court his last known address after he was incarcerated but before judgment was rendered. “Howard did not make this argument or show that this is what happened.” The issue was overruled.

Secondly, the COA noted he presented no evidence of Ariann’s supposed misleading and thus failed to establish extrinsic fraud.

Because the bill of review was time-barred (because Howard did not establish extrinsic fraud), the COA did not reach the merits of the bill of review issue.

The Fourteenth COA released two memorandum opinions, In re D.A., No. 14-16-00491-CV, and In re C.A.W. and C.H.W., No. 14-16-00768-CV, both affirming the trial courts.

In In re D.A., the father challenged the award of attorney’s fees in a modification order after bench trial. But the record on appeal did not contain a complete reporter’s record and the COA must presume the omitted evidence supported the order.

In In re C.A.W. and C.H.W., the father appealed the trial court’s order granting a child support modification in favor of the mother. Mother and father were divorced in 2013 after signing an MSA. They were named JMCs and father was ordered to pay $1,875/mo in child support, with a step down to $1,562.50 when the oldest turned 18.

C.A.W. aged out and mother filed a modification seeking above-guideline support for C.H.W. At bench trial in August 2016, the following facts were adduced:

C.H.W. resided with Mother. Father stopped fully exercising
his periods of possession of C.H.W. Mother’s net monthly income is $2,116.29 and
Father’s net monthly income is $23,200. C.H.W.’s needs were itemized in Exhibit
6, which is entitled “Child[]’s Needs List” (the “List”). The List also itemized the
anticipated monthly expenses for C.H.W.’s needs while residing with Mother. The
List reflected that C.H.W.’s needs totaled $5,291.65 per month. Mother did not have
the ability to meet C.H.W.’s monthly needs exceeding $1,700.

At the conclusion of trial, the trial court announced its finding that increasing child support was in the child’s best interest. On August 30, 2016, the trial signed an order for father to pay $3,500/mo in child support.

In his first issue on appeal, father argues the trial court abused its discretion in ordering above-guideline support because there was “no evidence of proven needs.” Specifically, the father argued that the mother had “merely shown in the trial court what her monthly expenses may be at this time” and failed to establish “that these expenses exist because of some need for the child.” The COA disagreed and found that the list of child’s needs clearly segregated the child’s expenses from the mother’s and that there was more than a scintilla of evidence establishing the child’s needs. The issue was overruled.

In his second issue, the father argued the trial court abused its discretion in ordering a modification where there was “no evidence of a material and substantial change.” To prevail in a modification suit, the petitioner must establish either that there was a material and substantial change or that more than three years have elapsed since the decree was entered and the monthly child support obligation differs from the amount that would be awarded under the statutory child-support guidelines by 20% or $100. Because this case met the latter, the issue was overruled.

 

Slavin Marches On: Opinions, Aug. 22, 2017

Both the First and Fourteenth Courts of Appeal released memorandum opinions today, the First’s in a habeas corpus proceeding and the Fourteenth’s in a hotly contested custody suit.

The First’s habeas corpus opinion presents a textbook case of how ambiguous language in a decree should prevent a contempt finding. In In re Campbell, No. 01-17-00251-CV, the relator challenged the trial court’s orders finding her in contempt, awarding attorney’s fees to her ex-husband’s counsel, and imposing community supervision. Ex-husband Randall Gibson moved to enforce possession and access provisions of the parties’ final decree. The trial court found three violations of the decree and confined Campbell. After six days in confinement, she moved to be released and the trial court granted the release but suspended the balance of her confinement, placing her under community supervision for two years. Her conditions of suspension required Campbell to, inter alia, report to a community supervision officer on a monthly basis, permit the officer to visit her home and work place, and pay a $25/mo community supervision fee. Campbell later moved for reconsideration of the contempt judgment, which the trial court denied. Campbell filed this writ of mandamus, which the COA construed as a habeas corpus, requesting the COA order the trial court to vacate its contempt order as void.

Campbell challenged the contempt order on two grounds: 1) some portions of the final decree are too vague or ambiguous to be enforced by contempt; and 2) the evidence adduced at trial failed to support one or more of the essential elements to support a finding of contempt.

Campbell argued the trial court erred by excluding the testimony of a witness (a woman named Jennifer Yeggoni), but the COA observed errors in the admission of evidence generally are not reviewable by a petition for writ of habeas corpus (the exception to the rule is where a trial court excluded evidence so significant it prevented the relator from presenting a defense). But apparently Campbell didn’t try to call her witness until after the judgment, when it was too late. It appears from the opinion this is the extent of the evidence issues.

Campbell was more successful with her challenges to the contempt violations. First, the trial court found her in contempt on the following basis:

On Thursday, October 20, 2016, during the regular school year,
[Campbell] picked up the children from school during [Gibson’s]
period of possession.

The decree provided that the ex-husband has the right to possess the children after they are dismissed from school each Wednesday until school resumes on Friday; when the children are dismissed from school on Wednesday afternoons, Campbell must surrender them to Gibson at their respective schools. Gibson may designate a third party to pick up the children in his place. The decree provides that either Gibson or his designee must be present when the children are picked up from the school. The decree is silent as to what should happen if neither Gibson nor his designee are present.

Gibson testified that he was unable to pick up two of his children on Thursday, October 20, 2016 because he was on an overnight field trip with the third child. He designated a third party (Yeggoni) to pick up and care for the children that day. Instead, Campbell picked them up from school, had them for a bit, and later dropped them off at Yeggoni’s house, where the children stayed overnight. Campbell admitted at trial that she picked the children up from school that Thursday and explained that Yeggoni was not there. Gibson conceded he did not know whether or not Yeggoni was at the school to pick up the children.

The COA found that the evidence conclusively established that neither Gibson nor his designee was there to pick up the children. Campbell, the COA observed, testified she was present and did not know if Yeggoni was. “While the trial court sitting as factfinder generally may disbelieve a witness’s testimony in whole or part, it cannot simply disregard the uncontradicted testimony of an interested witness that is, clear, positive, and direct, otherwise credible, free from contradictions and inconsistencies, and readily could have been controverted.” Campbell’s testimony about Yeggoni’s absence, the COA held, met this standard and Gibson could have controverted this evidence if it were untrue by, for example, calling Yeggoni as a witness.

The decree required Gibson to arrange for a third party to pick up the children in his absence, which he evidently did not do, and the decree was silent as to what would happen in such cases. As such, the decree was ambiguous on this point and could not support a finding of contempt. The COA sustained Cambpell’s challenge to this violation.

For the second violation, the trial court found Campbell willfully disobeyed the decree as follows:

On Tuesday, November 22, 2016 between the hours of 6:00 p.m. and
8:00 p.m. [Gibson], who was not in possession of the children,
attempted to Skype to [the] children. [Campbell], the party receiving
the call, did not return the call by ordinary telephone methods (cellular
or land-line telephone). [Campbell] took [] purposeful actions to be
away from a computer or phone with Skype or Facetime capabilities to
thwart the spirit and intention of making it possible for [Gibson] to have
a Skype/Facetime call with the children once per week.

Campbell argued the decree did not require her to place a return call if Gibson was unsuccessful in contacting the children via Skype. She also argued there was no evidence she purposefully avoided her telephone and computer to stymie Gibson’s contact with the children. The decree permitted Gibson to place a Skype call or, if the children are not near a Skype-supporting device, by telephone. The decree also instructed Campbell could not take purposeful actions to be away from computers or phones during the call “to thwart the spirit and intention of making it possible” for Gibson to have communication. If the call is missed altogether and Gibson leaves a message, Campbell “shall assist and encourage the children in returning the call in a timely manner.”

Gibson testified that he tried to call the children by Skype on Tuesday November 22, 2016 between 6 and 8 pm, was unable to reach them, and left a voicemail. Just before 10 pm, he sent a text message to Campbell complaining of not being able to communicate with them but she did not respond, nor did it appear from the text-messaging program that she read the text. The next day, he was able to speak to the children. Campbell agreed she did not call Gibson back on Tuesday but testified that she generally tries to have the children return Gibson’s calls in a timely fashion.

None of the evidence, the COA found, supported the contempt finding. The decree contemplated there would be times when Gibson and the children did not connect and Campbell’s obligation in such circumstances was to “assist and encourage the children in returning the call in a timely manner.” In other words, she had no obligation to call Gibson back at all, or to do so necessarily the same day. The COA also agreed with Campbell that there was no evidence as to why they missed Gibson’s call that night. Counsel did not ask Campbell any questions about the circumstances of the missed call. Nor did the record support an inference Campbell purposefully thwarted Gibson’s call. The COA sustained Campbell’s objection.

Regarding the third violation, the trial court found Campbell in contempt for willfully violating the decree as follows:

On Saturday, November 26, 2016 between the hours of 2:00 p.m. and
8:00 p.m. [Gibson], who was not in possession of the children, called
the children. [Campbell] failed to assist and encourage the children in
returning the call in a timely manner.

The decree states that Gibson may call the children each Saturday between 2 and 8 pm when they are in Campbell’s possession. If the children miss his call and he leaves a message, Campbell “shall assist and encourage the children in returning the call in a timely manner.”

Gibson testified he tried to call the children three times between 2 and 8 on November 26, 2016 unsuccessfully. He left Campbell a voicemail and sent her a text message asking her to have the children call him back. The text message program indicated Campbell did not read the text. Campbell testified the children were staying with her parents that weekend. She conceded she did not assist the children to return Gibson’s call while they were with their grandparents but once they returned, they called Gibson back on Sunday.

“Timely,” the COA noted, is an inherently ambiguous term which was undefined by the decree. Because of the inherent flexibility of the term, the decree did not unambiguously inform Campbell of her obligations and thus could not serve as the basis for contempt. I suppose one could argue that “timely,” as it’s used in the decree here with regards to the Skype and telephone calls, suggested that the return call should be in the window of time provided in the decree, but the decree did not specifically say so and reasonable, alternative interpretations (as urged by Campbell here) are the death of contempt claims.

Because the decree did not support the three violations, the COA granted the writ of habeas corpus and declared the contempt order void.

In In re M.S.G., No. 14-16-00236-CV, the mother of the child argued the trial court erred in appointing the biological father as primary JMC and failing to order the father to pay retroactive child support.

The child was born in May, 2014. The parents were not married. Father filed a petition to establish paternity in December and to appoint him primary SMC. Mother counterclaimed, requesting the court appoint them both JMC with her as primary. Both parties amended their petitions repeatedly.

A bench trial was held in December 2015 at which father testified that he was concerned about mother’s excessive drinking and that her drinking caused him to move out from the apartment they shared. Mother admitted that she made a “blatantly false report” to the police accusing father of assault. She was arrested and later pleaded guilty to filing a false report. Father admitted he called CPS (on the advice of counsel) when the mother texted him that “there is no food here” and that the child was hungry and screaming. He also called the police to conduct welfare checks because he received text messages from the mother that she was having a hard time and she couldn’t do it and didn’t want to be a mother.

In January 2015, they reconciled and moved back in together until June 2015. He testified that after he moved out, he helped mother out financially. He also testified that in July 2015 he moved in with another woman who has a child and that child and his child get along well and have bonded.

Mother testified that it was Father who was drinking excessively and had anger issues. She also testified that she has been the child’s primary caretaker and since birth and that the father had not been very involved with the child. She denied father provided the financial assistance besides paying for day care and medical insurance. Mother testified that she had been legally married to a registered sex offender for ten years but that she had left him two months into that marriage and had not seen him in many years. She testified that divorce was finalized in July 2015, but produced no decree or evidence to establish that.

Mother testified that father had attempted suicide in the past, which father denied. Mother also made a number of serious allegations about father’s sexual history, including molestation when he was a child. Mother called father’s sister as a witness and she corroborated a lot of mother’s claims, including multiple suicide attempts, that father should not be the primary custodial parent because he has anger issues and is mentally unstable, and that she witnessed father sexually molesting their stepsister. Mother also called an ex-girlfriend of father’s who also did not have anything nice to say about him either.

The child’s paternal grandfather testified in favor of the father, denying claims about father’s mental instability, molestation claims, or that he spent much of his childhood in foster care. The father of father’s current girlfriend and the current girlfriend also testified in his favor.

At the conclusion of evidence, the trial court appointed the parents as JMCs with father as primary. Mother filed a motion for new trial which was denied.

Mother’s two issues on appeal are that the trial court abused its discretion by 1) appointing father primary JMC; and 2) failing to order father to pay retroactive child support.

As to the first issue, the COA noted that custody disputes are inherently fact-intensive and that the trial court is best able to observe and assess the witnesses’ demeanor and credibility. The COA defers to the trial court’s resolution of underlying facts and credibility determinations. For example, the trial court found that the mother’s allegations of father having an unstable mental history “were not supported by credible evidence.” The trial court also found that mother’s allegations of father having a history of inappropriate sexual conduct with a female while both were minors were also not supported by credible evidence.  To make a long story short, the COA marshaled the evidence which supported the trial court’s determinations and deferred to the trial court’s conclusions on these disputed issues and the credibility of the witnesses. The issue was overruled.

Regarding the second issue, retroactive child support is reviewed for an abuse of discretion. The COA found there was evidence in the record which supported the trial court’s conclusion the father should not be ordered to pay child support. The issue was overruled.

 

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Name Changes & Alleged Bigamy: Opinions, August 10, 2017

The Fourteenth Court of Appeals released two interesting published opinions yesterday, one on changing a child’s name and the other on invalidating a marriage due to an undissolved previous marriage.

In In re J.N.L., No. 14-16-00325-CV, the father of the child at issue appealed the trial court’s judgment granting petitioner’s request to change the name of the nine-year-old child. The mother and father had been married at one point, but they had divorced; the mother had remarried and filed a petition to change the child’s last name to the step-father’s last name. At the time of trial, father was incarcerated after being convicted of aggravated robbery and is not expected to be released until 2024. He is also a registered sex offender. He testified at trial via videoconference.

On appeal, the father asserted two issues: that the trial court lacked sufficient evidence to grant the request and that it abused its discretion in excluding some evidence.

The COA considered the evidence in support of the factors to be considered in a name change case:

(1) whether the name change would reduce anxiety, embarrassment, inconvenience, confusion, or disruption for the child, which may include parental misconduct and the degree of community respect (or disrespect) associated with the name; (2) whether the name change would help the child identify with a family unit; (3) whether the parent bearing the name the child will have assures that she will not change her name in the future; (4) the length of time the child has used a name and the level of identity the child has with the name; (5) the child’s preference; and (6) the parent’s true motivations for requesting the name change.

The COA examined the evidence in support of each of the elements and determined the evidence as sufficient and overruled father’s issue.

As for the second issue, the COA found the record was incomplete and the father had failed to provide a record which showed he proffered the excluded evidence. The trial court was affirmed.

In Zewde v. Abadi, No. 14-16-00536-CV, the husband appealed from final decree of divorce. Husband and wife were married in January 2014 and their son was born in June 2014. In February 2015, the husband filed an Original Petition to Declare Marriage Void, claiming the wife never properly divorced her prior husband and thus their marriage was void. The wife filed a counter-petition for divorce.

The trial court bifurcated the case, deciding the marriage validity issue on February 15, 2016 and then the divorce issues on May 11, 2016. The husband was represented by counsel in the first stage but was pro se during the second.

During the marriage validity trial, the wife testified that she married her first husband in 2002 in Eritrea, they had two children together, and then they were legally separated in an Italian court proceeding in 2009. The Italian court ordered the first husband to pay child support. The wife initiated pro se divorce proceedings in her native Eritrea in 2013. The record contained a Eritrean divorce decree dated November 12, 2013 and an English translation thereof. The Eritrean decree ordered the wife to announce the proceedings in a local newspaper and that notice appeared in the newspaper on October 22, 2013. The husband produced a copy and translation of the notice of the Eritrean proceedings published in the Eritrean newspaper. The notice states the first husband should be present in the court at 8 a.m. on November 13, 2013. But the decree was granted November 12, 2013. The first husband did not appear in court and the wife took a default judgment. The Court of Appeals noted neither side presented the trial court with any Italian or Eritrean law.

The husband introduced an Italian court decree which indicated proceedings in Italy were ongoing in 2013. This decree was not a divorce decree but a decree on issues related to separation including possession, child support, and damages. The trial court denied the husband’s request that his marriage to the wife be declared void.

The second phase, the divorce phase, began May 11, 2016. Evidence of violence by the father was presented. At the conclusion of trial, the trial court named the wife as SMC and the father as PC. The father was awarded limited possession rights until the child turned three years old and then an SPO would take effect. The trial court awarded child support, retroactive child support, and an additional monthly sum for medical expenses. Father appealed, asserting five issues.

In his first and fifth issues, he challenged the sufficiency of the evidence to support the validity of the marriage determination. In Texas, a marriage is presumed valid and when a person is alleged to be married to more than one person, the most recent marriage is presumed valid against any prior marriage. Thus it was the father’s burden to establish his marriage to the wife was invalid.

Essentially, since neither party presented any evidence on Italian or Eritrean marital law, the husband was unable to establish that the divorce in Eritrea was invalid, either because the notice was improper or because the Italian proceedings were ongoing. The COA overruled the issues.

In his second issue, the husband argued the trial court erred in denying a pretrial motion but the COA overruled the issue because the trial court denied the motion because the husband failed to provide sufficient notice of the motion.

In his third issue, the husband argued the trial court erred in excluding certain exhibits at trial which the trial court excluded on the basis of the wife’s hearsay objection. Because the husband did not offer any argument at trial or on appeal as to why the exhibits were not hearsay, the issue was overruled.

In his fourth issue, the husband argued the trial court erred in considering alleged misrepresentations made by the wife’s counsel but the record did not reflect that the husband objected to the statements in trial and thus they were not preserved for appeal. The trial court was affirmed.