/INTERESTING CASES: August 7, 2019



Sallee S. Smyth

  1. Ethridge v. Opitz, 2019 Tex. App. LEXIS 5461 (Tex. App. – Tyler June 28, 2019) (Cause No. 12-18-00088-CV)

Note:  This decision was originally reported on in the May 2019 Interesting Cases edition as found at 2019 Tex. App. LEXIS 2529 (Tex. App. – Tyler March 29, 2019).  Rehearing was denied but a new opinion issued.  The analysis and outcome remain the same but it remains interesting!

H and W divorced in 2010.  The decree awarded H the parties’ residence and all of the community interest in a business known as Summit Dairy, including all assets used in connection with the operation of that business.  The decree awarded W $50K for her interest in the residence and the business.  In 2014, W filed suit against H and also named his parents.  This post divorce suit sought division of 6 tracts of land that W claimed were purchased during marriage but which were not awarded as part of the division in the 2010 final decree.  H’s parents were joined because W claimed that she and H had purchased 3 of the tracts with his parents jointly.  H and his parents claimed that the 6 tracts of land belonged to a partnership which was in effect the business known as Summit Dairy, awarded to H in the divorce.  W testified that she paid for the land out of the Summit Dairy account and that this account made all payments on any debts associated with the land as well as taxes and insurance.  H and an accountant both confirmed this was the case.  H testified that partnership funds paid for everything.  There was no dispute that all 6 tracts were purchased during the parties’ marriage, however the evidence established that 3 tracts were purchased before the partnership was formed.  The case was tried to a jury.  The jury was instructed on two statutory presumptions.  One, that all property acquired during marriage is community property and two, that property purchased with partnership funds belongs to the partnership.  The jury awarded a take nothing judgment against W and she appealed.  The COA examined the sufficiency of the evidence.  Noting that the evidence established that 3 of the tracts were purchased before the partnership existed, the COA determined that these 3 tracts were not mentioned in the divorce decree, making H and W joint owners.  H attempted to show that these 3 properties were transferred to the partnership when it was created, but the COA found that there was no written evidence of such a transfer which was required.  As such, W’s request to partition these 3 tracts should have been granted.  As to the other 3 tracts, the COA determined that H’s testimony created a presumption that the property was purchased with partnership funds and W carried the burden to rebut that.  Because there was no evidence offered to the contrary, the jury was allowed to determine that the parties’ intended these 3 tracts to be partnership property, purchased after the partnership was formed.  The COA stated that property owned in the name of a partner does not bar a partnership from claiming ownership because the question of ownership is a matter of intent. Take nothing judgment reversed as to the 3 tracts purchased as community property and that matter was remanded to the trial court for a just and right division.  Terms in the judgment reflecting a muniment of title awarding the properties to Eric modified as the properties belong to the partnership.

  1. C. v. L.C., 2019 Tex. App. LEXIS 5615 (Tex. App. – Fort Worth July 3, 2019) (Cause No. 02-18-00425-CV)

M and F married and had two children.  Up until the incident which triggered the divorce filing, F described his relationship with M and her parenting skills as a 9 out of 10.  The relationship hit a rough spot over F’s work schedule, M’s complete responsibility for children, F’s time spent on his music production business, and M’s concerns about infidelity.  M traveled to Mississippi with the children but her family convinced her to return to address the marriage.  She returned without the children and confronted F, demanding access to his cell phone which she believed contained evidence of an affair.  The parties spent a day arguing over the phone, hiding the phone, erasing matters on the phone etc. until W introduced a loaded gun into the situation.  She allegedly followed F around the house with the gun at her side requesting the phone.  When F attempted to take the gun, it went off wounding F in the leg and grazing M’s forearm.  M was arrested on felony charges but eventually pled guilty to a misdemeanor and received probation.  When H was released from the hospital he filed for divorce and secured the return of the children from MS.  After a contested TO hearing the court appointed F as temporary SMC and gave M supervised access.  The court later modified the TO and gave M unsupervised access.  Over the course of the proceeding the parties accused the other of various offenses, filed multiple motions, and challenged which parent should be named primary conservator.  At the time of trial M was living in Georgia but said she would consider returning to Tarrant County for her children despite not having any support system there.  After considering all of the evidence, the court named the parties JMC and named M as the parent with the exclusive right to establish the residence of the children provided that she moved back to Tarrant County by a date certain.  F pursued an appeal.  M was granted habeas corpus relief to obtain possession of the children after her return, with H disputing that she returned on time.  On appeal, H challenged the trial court’s decision to name the parties JMC in light of the incident of family violence and the limitations imposed by TFC 153.004(b) (rebuttably presuming that a parent may not be named JMC if there is a history or pattern of past or present physical abuse).  The COA thoroughly examines all of the interrelated statutes which address the issue to determine whether the law reasonably supports the notion that a single incident of violence mandates a finding of a history or pattern of abuse thereby precluding JMC appointment for the offending parent.  When reviewing all of the various sections of TFC 153.004, the COA notes that some subsections refer to a “history or pattern” while other sections refer to or imply the existence of a single incident.  The COA notes that these varying standards for integrating family violence into the conservatorship decision must be weighed against TFC 153.131 which creates a presumption that naming parents as JMC is in the child’s best interest.  The Opinion goes through a history of conflicting appellate court decisions which initially trended that even a few multiple events of abuse did not rise to a level establishing a history or pattern and thus did not preclude JMC appointments but thereafter shifted to cases which determined that single events could constitute a “history” which triggered the statutory limitation of TFC 153.004(b).  The Opinion uses code construction tools to determine how “history” should be interpreted as a disjunctive of “pattern” noting that the legislature is presumed to have used the words it intended.  The COA reasons that a finding that TFC 153.004(b) required abstention from JMC appointment where a single incident was found would necessarily eliminate TFC 153.004(a) altogether which provides that in determining whether to appoint a party as SMC or JMC, the court must consider evidence of intentional physical force within the 2 years preceding the suit.  In other words, if a single act under (b) requires the court to take JMC off the table, then there would be no need for the court to consider any acts of physical abuse in deciding on SMC or JMC because JMC would already be out of the equation.  The COA also notes that explanations, circumstances and the time removed from a single incident must be considered in the trial court’s discretion.  The COA gives the example of a young married couple whose marriage has a rocky start with an incident of abuse that is resolved and they go on to have children and raise them productively and cooperatively for years.  In this situation, the COA recognized that it would be inappropriate to consider a single remote incident (likely even before children were born) as constituting a history or pattern which excluded JMC consideration.  Ultimately the COA concludes that while a single incident can constitute a history, it does not do so as a matter of law and the trial court retains discretion to consider evidence rebutting the presumption.  The COA is clear to point out the seriousness of M’s decision to infuse a gun into the parties’ disagreement and makes no excuses for her conduct.  However, as to whether this single event prevented her appointment as a JMC as a matter of law the COA could not agree.  The COA examined all of the evidence and found no abuse of discretion in the trial court’s overall decision, including naming M as the primary parent.  Judgment affirmed.  COMMENT:  This decision emphasizes the importance of specific words in a statute and how they cannot necessarily be singled out but must be considered as part of a more global statutory scheme.  Although the Code Construction Act presumes that the legislature knows what it is doing when enacting a statute, choosing the language carefully, cases like this one might warrant a reexamination and clarification of such statutes, particularly when they impact important decisions such as conservatorship and specific terms that potentially limit the courts authority in making those decision.

  1. In re Swart, 2019 Tex. App. LEXIS 5732 (Tex. App. – Dallas July 9, 2019) (Cause No. 05-19-00015-CV) (orig. proceeding)

H and W married in 1997 in Bolivia.  H is a resident of Costa Rica and a citizen of the Netherlands.  W is a resident of Costa Rica and a citizen of Bolivia.  The parties participated in marital separate proceedings in Costa Rica in 2015.  H was ordered to pay some temporary alimony but later these orders were vacated.  On May 1, 2016 W traveled to Dallas on a B1/BS Visa which is obtained by representing to the US government that entry is sought on a temporary basis for business and pleasure, that the individual plans to remain for only a limited period and that the individual has a residence and ties outside the US and they intend to return upon expiration of the Visa.  Individuals with a B1/BS Visa must return to their country of residence every 6 months.  On November 14, 2016 W filed a petition for divorce in TX claiming to be a resident and domiciliary for the required statutory 6 month/90 day period.  In August 2017 H filed his own suit for final divorce in Costa Rica and served W but she did not respond.  In September 2017 personally served H herself with the TX divorce action while in Costa Rica.  H filed a special appearance in the TX action and a plea in abatement, challenging the TX court’s jurisdiction to maintain the divorce action as well as challenging personal jurisdiction over him.  In March 2019 the trial court denied the special appearance.  H sought mandamus relief.  The COA  notes that because H challenged both personal jurisdiction and the trial court’s jurisdiction over the suit, the COA was in a position to decide the case on either basis.  The COA focused on the TX court’s right to proceed with a divorce based on W’s claimed residency.  The COA found that W’s representations made to secure her B1/B2 Visa were consistent with the requirements of the Immigration and Nationality Act §1101(a)(15)(B) which specified that in order to obtain such a Visa the individual must express their intent to leave the US and their intent that the visit is temporary only.  The COA found that W’s representations were inconsistent with the definitions of residence and domicile which imply a permanent residence and a party’s intent to remain there.  The COA found that under binding federal law, W could not meet the statutory residency requirements and thus the trial court had abused its discretion.  Further the COA notes that while normally a lack of residency would only require “abatement,” here it required dismissal because W’s B1/B2 Visa status barred her claims that she intended to stay and that she would not be legally permitted to remain, warranting dismissal of her suit altogether.  Mandamus granted without the need to address H’s special appearance issues.

  1. In the Interest of D.Z., 2019 Tex. App. LEXIS 6466 (Tex. App. – Houston [14th] July 30, 2019) (Cause No. 14-17-00938-CV)

Note:  Opinion originally issued on May 16, 2019 withdrawn and replaced in light of Texas Supreme Court decision abrogating precedent in Nath v. Texas Children’s Hospital, 2019 Tex. LEXIS 636 (Tex. June 21, 2019) (Case No. 17-0110)

M and F divorced in 2010.  In 2015 the OAG filed a suit to modify child support.  F filed a motion to modify seeking SMC or primary JMC.  M counter filed for an increase in child support.  Over the course of the proceedings, W filed three motions to compel discovery from F and requested sanctions each time.  The trial court issued various orders obligating production but never sanctioned F.  An amicus attorney was appointed and orders were issued obligating the parties to deposit costs for her benefit.  In October 2017 the case was scheduled to go to trial and F sought a continuance which was opposed.  F was ordered to designate lead counsel as seven attorneys with a specific firm had appeared on his behalf at various times and the case was set for trial later in October.  F filed another motion for continuance which was denied.  The day of trial, F non-suited his modification claims and trial proceeded on M’s counter petition.  M offered her own testimony that F’s suit was frivolous and she identified the various fees which she had incurred relating to discovery and to the defense of F’s suit.  She offered evidence demonstrating that F’s claims supporting modification were unfounded.  She requested the payment of attorney fees from F.  The court increased child support and found “good cause” to award M attorney fees of $10,000 and issued judgments for payment of the amicus fees characterizing them as additional child support.  F appealed, challenging the sufficiency of the evidence supporting the attorney fee award and the amicus fees as child support.  In its original opinion issued May 16, 2019 the COA overruled F’s issues.  As to the attorney fee award, the COA determined that the fees were actually sanctions for F’s discovery abuses and frivolous suit and under the precedent established in Allied Associates, Inc. v. INA County Medical Insurance Cos., 803 S.W.2d 799 (Tex. Civ. App. – Houston [14th] 1991, no writ), when fees are shifted to sanctions it is not necessary to offer proof that the fees are reasonable and necessary.  On June 21, 2019 the Texas Supreme Court issued its decision in Nath v. Texas Children’s Hospital, 2019 Tex. LEXIS 636 (Tex. June 21, 2019) (Case No. 17-0110), holding that whether characterized as an award of attorney fees or shifted to designate them as sanctions, sufficient evidence is initially required to establish that the fees are both reasonable and necessary.  This decision abrogated the precedent set by Allied upon which the COA relied in its initial May 2019 Opinion.  Now, in this new Opinion, the COA examines whether or not the $10,000 award to M was properly characterized as sanctions and further whether the evidence supporting them as reasonable and necessary was sufficient.  The COA determines that the fees were in fact sanctions although the trial court never expressly made this determination.  The COA relies upon the court’s repeated use of the phrase “good cause” which tracks TRCP 13 as well as the evidence supporting F’s discovery abuses and frivolous suit.  However, the COA finds that there was insufficient evidence supporting the fees as reasonable and necessary under the Arthur Anderson factors as there was no testimony or evidence admitted by an expert attorney demonstrating hours, nature of work, etc.  As such, the COA reverses the fee award and remands the issue back to the trial court in the interest of justice.  As to the amicus fee characterization as additional child support, the COA finds that F did not preserve the issue for appeal as he did not object to the form of the order in the trial court before it was signed.  Reversed and remanded in part, affirmed in part.  DISSENT:  Justice Christopher dissents asserting that there is nothing in the record to support a decision that the fees were awarded as sanctions, noting that there were no pleadings under TRCP 13, the rule was not mentioned at trial, the court did not make the requisite findings to support Rule 13 sanctions and the final judgment did not refer to it.  Justice Christopher would have characterized the award as attorneys fees and rendered.  However, she notes that because of the intervening Supreme Court decision in Nath, remand in the interest of justice is appropriate, stressing that on remand, the trial court should specifically consider the factors in Low v. Henry, 221 S.W.3d 609 (Tex. 2007) which detail what must be taken into account when shifting fees to an award of  sanctions.


2019-08-08T12:49:29-05:00 August 7th, 2019|SideFeatured-Home|