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.

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

 

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.