INTERESTING CASES: January 3, 2018

Sallee S. Smyth



  1. Finley v. May, 2017 Tex. App. LEXIS 11036 (Tex. App. – Amarillo November 28, 2017) (mem. opinion) (Cause No. 07-17-00233-CV)


ExH sued ExW for intentional infliction of emotional distress surrounding all of her efforts to alienate their two children from him over an extended period of the children’s minority as well as some false accusations she made about him.  ExH did not file suit until after the children had reached the age of 18.  The suit was tried to the court which denied relief and held that ExH could not prosecute claims arising from actions occurring before each child turned 18 but could seek damages for conduct occurring after.  The trial court concluded that an IIED claim is a “gap-filler” cause of action and is only available when no other cause of action is available to the plaintiff, finding that ExH had other recognized theories of recovery available to him which he did not pursue.  H appealed, pro se.  The COA noted the Texas Supreme Court holding in Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62(Tex. 1998) and its progeny which hold that IIED is in fact a gap filler cause of action and it is generally not available where the gravamen of a plaintiff’s claim is really another tort.  The COA then notes that ExH could have sued ExW under a TFC Chapter 42 claim for interference with possessory rights and further could have pursued remedies of contempt and/or modification all while the children were under the age of 18.  The COA noted that H’s decision to wait until the children were adults did nothing towards prevention of the ExW’s behavior whereas a suit before the age of 18 would have potentially served a more remedial purpose.  ExH argued that an IIED claim was completely difference from a Chapter 42 suit, but the COA disagreed and held that the mere fact that an IIED claim might enhance the damage recovery does not justify ignoring the Supreme Court’s mandate that IIED claims are not available when recovery under another tort theory would suffice.  Because ExH’s claims were encompassed in other recognized torts (which he never pursued) the COA affirmed the trial court’s decision.


  1. In re Charles, 2017 Tex. App. LEXIS 11234 (Tex. App. – Austin December 1, 2017, orig. proceeding) (mem. opinion) (Cause No. 03-176-00731-CV)


In 2014, M and F entered into an agreed order providing for conservatorship and support of their one year old daughter, with M having the right to establish the child’s domicile in Bell or contiguous counties.  In 2016 the trial court issued an agreed ordering modifying child support and possession.  In August 2017, after M gave F last minute notice that she was moving to Arlington to begin school there, F filed a motion to modify with an affidavit and requested a hearing for temporary orders, seeking to be named as the child’s primary conservator.  The motion and affidavit alleged a material and substantial change in circumstances, asserted that M had interfered with F’s possession, had relocated outside the defined geo area and complained that when he was able to visit the child always appeared neglected, dirty, not well-cared for and had contracted a serious case of scabies that went untreated.  The trial court held a hearing at which M, F and stepmom testified in addition to several other witnesses.  The trial court issued temporary orders naming F as primary conservator.  M sought mandamus relief.  The COA determined that although the motion to modify included an affidavit as required by TFC 156.006, the substance of the affidavit did not refer to the requirements of the statute, make any allegations as required by the statute or detail specific facts supporting the relief requested.  Because the COA found the affidavit lacking, they determined that the trial court abused its discretion in conducting a hearing.  Even so, the COA stated that the absence of a sufficient affidavit can prove harmless if the evidence at the hearing rises to a level establishing that the circumstances of the child would significantly impair their well-being.  However, in this case the COA found that the allegations were not such that implicated any substantial or imminent harm to the child, determining that the trial court likewise abused its discretion or issuing temporary orders changing primary conservatorship.  Mandamus ganted.


  1. Walters v. Walters, 2017 Tex. App. LEXIS 11531 (Tex. App. – San Antonio December 13, 2017) (mem. opinion) (Cause No. 04-16–00690-CV)


W filed suit for divorce in summer 2016.  The case was called to trial in the fall and H at the time was serving a 15 year sentence for aggravated assault with a deadly weapon.  H was also facing additional felony charges.  H, pro se, filed several pre-trial motions including a motion for continuance and a motion to interview the two children who were under the age of 12.  H also served discovery the week before trial but failed to serve W and served the AG instead.  The trial court denied the continuance but suggested that if the evidence demonstrated his need for discovery the court would consider that.  The court declined to interview the children.  At trial W established evidence of a history of abuse by H including many instances where the children either witnessed the abuse or suffered from H’s temper themselves.  W testified that she allowed the children to visit H in prison a couple of times but they did not handle it well and were in counseling.  W testified that H sent the children letters from prison that were inappropriate.  At the conclusion of trial the court appointed W sole MC and specified that H’s possession would be determined by the children’s counselor.  H appealed.  H complained that the court did not properly rule on his pre-trial motions.  The COA found that the court was not required to interview the children under 12 thus it was not error to refuse.  Further the COA found that H had not served discovery properly and thus is was not improper to move forward with trial.  The COA found sufficient evidence to name W sole MC.  As to H’s possession the COA held that while a trial court may, in some circumstances, involve a third party to resolve issues relating to possession and access, the right to do so is not limitless.  The COA held that in situations where third party involvement is warranted, the trial court must nevertheless issue specific guidelines or terms under which a parent will know how to comply in order to be able to exercise possession or enforce the order if necessary.  In this case the trial court issued a blanket order that simply provided for the children’s counselor to decide possession and thus it afforded H no enforceable possessory rights.  The judgment was affirmed in all respects except the possession order which was reversed and remanded for further orders clarifying the possession terms.


  1. In the Interest of J.D.A., 2017 Tex. App. LEXIS 11768 (Tex. App. – Dallas December 19, 2017) (mem. opinion) (Cause No. 05-17-00053-CV)


M and F divorced in 2011.  Before the divorce, the child made an outcry of abuse against the maternal grandfather which CPS ruled “unable to determine.”  At trial F requested a permanent injunction against unsupervised access by MGF with the child but this was denied by the trial court who named the parties JMC and designated M as primary parent with orders for F to pay child support.  The parties entered into an agreed modification several years later which restricted the child’s domicile to a specified area contemplating F’s move to that same area and triggering modified access by F upon his move.  Three months after F’s move, M announced she was moving in with her parents as a result of her financial situation.  F filed a motion to modify and for sanctions.  F requested the court to name him SMC if M moved and again sought injunctions against unsupervised access by MGF with the child.  During a bench trial M testified that she moved because she could no longer afford to live in her prior residence.  M testified she was a CPA but earned only $15K the prior year because her health caused fatigue which, along with the time involved in the litigation prevented her from working more hours.  M suffered from MS.  F testified that he thought she earned more and was lying to the court or that she was underemployed.    MGF testified that he had helped financially and that she had incurred significant debt to pay legal costs.  At the conclusion of the testimony the trial court announced that it was going to look up what a public accountant makes and determine child support on that basis, modifying the order to award F primary conservatorship and issuing permanent injunctions precluding unsupervised access by MGF.  The court ordered M to pay child support in the amount of $652 per month based on findings that the average median salary of a CPA’s in Tarrant County was $50,000.  M appealed.  The COA recognized the trial court’s ability to order child support based on earning potential in situations where it was established that an obligor was underemployed.  The COA noted however that the guidelines should be presumptively applied to determine child support once an obligor produces evidence of their current earnings. At that point the burden of proof switches to the obligee to prove that the obligor is underemployed.  In this case F offered no evidence that M was underemployed, merely stating he thought she might be or she was lying about her income.  This testimony was insufficient to prove underemployment.  Further, even if such proof existed, there was no evidence as to M’s earning potential.  There was no evidence as to what M had made in the past other than her testimony that she earned $15K the prior year.  Although the trial found her earning potential as a CPA to be $50K/year, the trial court apparently went and procured this evidence on its own and such evidence was not in the record.  As such, the COA reversed and remanded the child support award.  Further, the COA reversed and rendered judgment denying permanent injunctive relief as there was no evidence to suggest that abuse by MGF had occurred in in the years since the divorce.  F’s claim that M was now living with MGF was insufficient to warrant the injunctions.  Modification of primary conservatorship affirmed.

  1. Lowery v. Lowery, 2017 Tex. App. LEXIS 11931 (Tex. App. – Houston [1st Dist.] December 21, 2017) (mem. opinion) (Cause No. 01-16-00147-CV)


H and W divorced in 2009 based on a mediated agreement which provided in party that H would pay W spousal maintenance of $1600 per month in accordance with the Family Code.  The divorce decree provided that H would continue payments until the death of H or W, W’s remarriage, or further order of the court affecting the obligation including a finding that W was cohabitating with another individual on a permanent, conjugal basis.  The court issued a WWH for the maintenance.  Neither party appealed from the decree.  In 2014 H filed a motion to modify the maintenance obligation alleging that the decree failed to provide for its termination after 36 months which was the longest period available for the award of maintenance under the effective provisions of Chapter 8 at the time of the divorce.  In the alternative H asked the court to termination the WWH because any supporting obligation beyond 36 months was contractual alimony not subject to WWH.  W answered denying that Chapter 8 required a termination date.  H filed a motion for judgment NPT, asserting that there was a discrepancy between the MSA and the decree which failed to provide aa 36 month termination date as intended under the MSA.  H began missing payments and W filed a motion to enforce, also seeking clarification if the order was not specific enough to be enforced by contempt.  H also sought clarification, asserting the existence of an ambiguity which should be resolved by providing a 36 month termination date for the maintenance.  F offered the MSA into evidence at the hearing which included language that F would pay maintenance in accordance with the Family Code. The MSA did not state that maintenance would end at death or W’s remarriage although this was included in the final decree.  The trial court found that the decree was in conflict with the family code provisions in effect at the time of divorce and found that as a matter of law the maintenance terminated after 36 months.  W appealed.  The majority panel of the COA determined that H’s claims regarding ambiguity of the decree were an impermissible collateral attack, concluding that discrepancies between the MSA and the Decree should have been raised by H in a direct appeal from the decree when originally issued.  The majority concluded that there was no ambiguity in the decree as to a termination date because it clearly provided for termination upon death of either party of W’s remarriage.  Because the majority found that there was no ambiguity, the majority determined that the trial court abused its discretion in modifying the decree.  The majority further held that when a judgment is not ambiguous, the trial court may not refer to matters outside the four corners of the document to interpret or construe it and thus the trial court erred by relying on the family code (evidence outside the four corner of the decree) to address the termination issue.  The majority reverses and renders, vacating that portion of the trial court’s order termination spousal maintenance.  Justice Massengale dissents, determining that there is a ”latent” ambiguity in the final decree which specifically references that spousal maintenance is awarded pursuant to and in accordance with the Family Code, an ambiguity that was not discovered until the time when questions arose regarding termination of the obligation.  Justice Massengale further concludes that consideration of relevant Family Code provisions was not improper, “extraneous” evidence because the rules of contract construction allow judgments to incorporate extraneous matters by reference and the decree in this case expressly referenced the Family Code. Justice Massengale concludes that H’s request for clarification of an ambiguity was not a collateral attack and that the trial court had the discretion to interpret the ambiguity in light of the MSA as terminating spousal maintenance at the end of 36 months.

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