INTERESTING CASES: January 6, 2021

Sallee S. Smyth

  1. In re Marriage of Haight, 2020 Tex. App. LEXIS 9921 (Tex. App. – Waco December 16, 2020) (mem. op.) (Cause No. 10-18-00324-CV)

H and W married in 1988 and W filed for divorce in 2009. In 2011 H and W entered into an agreement whereby H would pay W $28,000 per month for combined spousal and child support. The opinion suggests that the size of the payment was attributable to agreements the parties reached for H to repay W based on claims of fraud that he had committed against the community estate. The parties agreement was incorporated into temporary orders signed by the trial court in 2012. In 2014, while the divorce suit remained pending, H died. H’s Will was admitted to probate and W was named independent executor but resigned in 2015 and Frankhauser was appointed to serve as administrator. In July 2018 W filed a suit to enforce the contract the parties agreed to in 2011 claiming an arrearage owing equal to one month when H died. A week later, Frankhauser filed a suggestion of death in the divorce action and a motion to dismiss the proceeding as well as the joined SAPCR. The trial court granted the motion and dismissed the suit with prejudice. W appealed. W argued that she was denied due process because the suit was dismissed merely on a suggestion of death without evidence or notice. Further, she claimed that the trial court retained jurisdiction over her suit to enforce the parties’ agreement for payment of child support under TFC 154.015 which allows the court to determine the balance of any child support obligation upon the death of an obligor. As the COA noted, W did not file any action pursuant to TFC 154.015. Instead, W filed a suit to enforce H’s contractual obligation to her. The COA holds that at the instance of death, the trial court loses its subject matter jurisdiction over the divorce proceeding and those inquiries which are incidental to it. As such, the only proper action the trial court could have taken was to dismiss the divorce suit. Chief Justice Gray concurs in the result but dissents as to dismissal with prejudice. He initially notes that it was a due process violation for the court to take action without notice or opportunity for W to be heard, however any violation was cured when W was allowed to be heard on a motion to reconsider. COMMENT: See decision below regarding the related contractual issue.

  1. Haight v. Frankhauser, 2020 Tex. App. LEXIS 9916 (Tex. App. – Waco December 16, 2020) (mem. op.) (Cause No. 10-19-00016-CV)

Incorporating and continuing the facts from above, in March 2018 W filed a new suit against Frankhauser, the administrator of H’s estate, including claims for breach of contract relating to enforcement of the agreement she reached with H in the divorce action in 2011. Frankhauser filed a motion for partial summary judgment as to W’s claims for breach of contract for spousal and child support. The trial court granted the motion. The trial court’s order recited that summary judgment was granted to the extent that W’s claims relied upon the parties’ 2011 Rule 11 agreement, the trial court’s temporary orders in the divorce and/or the W’s allegations of an implied contract as alleged in her pleadings. W appealed. The COA simply states that when H died, the trial court lost jurisdiction over the divorce action and that the temporary orders signed by the court in that suit were also properly dismissed after H died. W argued again that H’s child support obligation was accelerated upon his death per TFC 154.015 however again, the COA holds that W did not seek relief under this statute, instead pursuing her claim as a breach of contract. W asserts that her breach of contract action must survive but the COA states “that agreement was incorporated into the Temporary Orders and was fulfilled when the Temporary Orders were entered,” finding no error in granting summary judgment. Judgment affirmed. Chief Justice Gray dissents, asking “Can the agreement of the parties survive the death of one of the parties, like any other contract?” He states that the answer to the question is a resounding “yes.” CJ Gray disagrees with the majority conclusion that the mootness of the divorce action automatically negates the parties’ agreement. CJ Gray notes that Frankhauser’s motion for partial summary judgment did not show that W’s claim could not survive H’s death and further did not show that it conclusively did not survive H’s death. Noting that H had breached the agreement by failing to pay one full month of support, W’s claim to that amount had accrued at the time of H’s death and W’s claim was an obligation owed by H’s estate. CJ Gray notes that W’s claim, while uncollectible in the divorce action, was collectible in the estate proceedings which were separate. CJ Gray asserts that dismissal based on the divorce was the only basis for SJ as stated in the order and that this was an error. COMMENT: I have always understood divorce to be a separate cause of action from the property division and I recognize that the two issues cannot be severed when the trial court has proper personal and subject matter jurisdiction.

However, while the divorce cause of action may become moot upon a spouse’s death, the property issues are rarely resolved and instead they simply move to a different arena. I agree with CJ Gray that the majority decision incorrectly treats the divorce and property causes of action as one, collectively justifying the resolution of all matters when a spouse dies. It seems so fundamentally wrong to me that one spouse’s disputed property claims against the estate of the other don’t survive to be addressed in an overall proceeding regarding the deceased spouse’s estate. What if the surviving spouse has asserted claims against the community on behalf of her separate estate, for reimbursement or conversion? Those should not simply go away but would need to be addressed as part of identifying the H’s share of the community by the probate court. Understanding that the child support portion (if that could be clearly segregated) of the monthly payment could not be enforced by contract, the parties’ agreement for spousal support remained and should be heard subject to applicable contractual defenses.

  1. In re T.M., 2020 Tex. App. LEXIS 10015 (Tex. App. – Fort Worth December 17, 2020) (mem. op.) (Cause No. 02-19-00388-CV)

TM was born in North Carolina in 2013 where F’s family lived. In 2015, M moved with the child to TX where her parents lived. The child was shuttled between TX and NC until January 2016 when a NC court took emergency jurisdiction (due to drug issues by both M and F) and awarded temporary custody of the child to M and M’s parents. The parties eventually consented to a final order from the NC court which was issued in 2018, awarding primary physical to M’s parents, gave M visitation supervised by her parents, gave F supervised visitation by his parents and awarded F’s parents visitation with the child in TX. After 6 months, F’s visitation could be exercised with his parents jointly. F moved to TX in January 2019. One year after the NC final order was signed, F filed a motion to modify the NC order in a TX court, alleging that there had been a material and substantial change, seeking to be named a JMC and lifting the visitation restrictions. F alleged that TX could modify because it had jurisdiction under the UCCJEA as the child’s home state and that NC had lost its continuing exclusive jurisdiction because neither parent nor anyone acting as a parent remained living in NC. M and her parents filed pleas to the jurisdiction asserting that NC retained jurisdiction because F’s parents (who had visitation rights) still resided there. The TX court held a hearing but did not resolve the jurisdictional issues. Thereafter, in June 2019 M and her parents filed a motion for contempt in the NC court alleging that H violated the supervised access orders and they also filed a motion to modify the NC orders regarding child support. The TX and NC courts conferred in July 2019 and determined that NC would retain jurisdiction over the matter. The TX court dismissed F’s modification suit, determining it had no jurisdiction. F obtained findings which conceded that M, F, the child and M’s parents were all TX residents and only F’s parents lived in NC. F filed a MNT but it was overruled and F appealed. The COA reviewed the various UCCJEA terms and concluded that the only way the NC court could have retained its jurisdiction was if F’s parents could be considered as “persons acting as parents” within the meaning of the statute. The COA determined that while NC law does not define physical custody, the NC final order was clear that primary physical custody was expressly awarded to M’s parent’s who lived in T. As such, when F filed his suit to modify, the child’s home state was TX and both parents, as well as M’s parents who were acting as parents, all lived in TX, giving the TX court jurisdiction to modify. M’s argument that the pending motions in NC served to retain jurisdiction there failed because the pending motions addressed a claim for enforcement of visitation and a claim for child support, neither of which were considered “custody” proceedings for purposes of UCCJEA jurisdiction. The COA holds that the TX court abused its discretion in determining it had no jurisdiction over F’s modification suit. Order of dismissal reversed and the matter remanded for further proceedings.

  1. Evans v. Jones, 2020 Tex. App. LEXIS 10049 (Tex. App. – Eastland December 18, 2020) (mem. op.) (Cause No. 11-19-00008-CV)

H and W divorced in New Mexico in 1988. The final decree included terms dissolving the marriage and resolving child custody and support. The decree contained no terms dividing the parties’ property. The parties later reconciled for a brief period and remarried, but in 1989 a Texas court issued a decree of annulment of that marriage. The annulment decree found that there was no community property other than personal effects which it awarded to the party in possession. Over the years there was various litigation in New Mexico regarding the parties’ children. However, in 1994 W filed a motion to enforce and for “other relief’ alleging that the parties’ marital property had never been divided and she requested that she be awarded her share.

H filed a motion to quash W’s action, alleging that the New Mexico court had no jurisdiction over those issues and further that matters regarding the children were also pending in TX. The NM court overruled H’s motion regarding property division and child support arrearage. It however agreed that TX would address all other matters concerning the children. In 1995 H filed a motion to dismiss the NM action regarding property alleging that this issue had to be determined in a separate suit. In 1997 the NM court dismissed the actions pending there in an order that provided jurisdiction of matters regarding the children and “all other matters” between the parties was referred to the district court in Comanche County, Texas. In 2009 W filed a suit in the TX court seeking a division of the property of H and W. She also made claims to the proceeds of two life insurance policies that had been paid out upon the death of two of the parties’ sons. H (and two other parties) filed a traditional MSJ as to W’s claims for division of property, alleging res judicata barred her claims because they could have been dealt with in the original NM divorce suit. H also asserted a statute of limitations defense. In 2018 the TX court granted SJ and dismissed W’s suit. W appealed. The COA acknowledges that both TX and NM have enacted statutes which permit a court to address the division of property undivided upon divorce. Although res judicata applies when claims that could have been adjudicated in prior litigation between the same parties were not, the COA finds that res judicata does not apply because statutory terms expressly permit such suits. The COA notes that if the broad application of res judicata were applied here, it would render both the TX and NM statutes meaningless. Further, the COA finds that while there is a two-year SOL, it is only triggered when one spouse unequivocally repudiates the ownership rights of the other spouse in and to the property and conveys that repudiation to them. Here the record did not establish that H ever “repudiated” W’s ownership interest in potential community property or gave her any such notice, Although the COA recognizes that this case must at some point come to an end (32 years between divorce and division) there was no property basis for SJ in H’s favor. Reversed and remanded for further proceedings.

  1. In the Interest of A.M., 2020 Tex. App. LEXIS 10217 (Tex. App. – Amarillo December 23, 2020) (mem. op.) (Cause No. 07-20-00130-CV)

H and W married in 2012 and divorced in 2019. They were named JMC of their only child and W was awarded the right to establish the child’s residence within Texas. Within a few months after the divorce, W began looking for a new job and was offered a position in Colorado Springs, CO. W filed a suit seeking to expand the geographic restriction to include Colorado Springs. H filed an answer expressly denying that there had been any material and substantial change. H also filed a cross-petition to modify which stated “if the court found a material and substantial change, he would like to modify his visitation and he wanted the geo restriction to only include an area within 100 miles of Brazos County where the parties and child currently lived. At trial the court found that H had judicially admitted the existence of a material and substantial change and stated that the only issue to be decided was best interest. At the conclusion of the evidence the court modified the geo restriction to include Colorado Springs and further ordered H to pay $300 in child support despite the fact that W had no pleadings on file seeking child support and offered no evidence to support a child support claim. H appealed. First and foremost, the COA determined that H did not make an unqualified judicial admission that a material and substantial change had occurred. His answer expressly denied it and his cross-motion sought relief only “if’ the trial court first determined one existed. As such, the COA found that the judgment could only be supported if there was evidence of a M&S change and further that it warranted modification in the child’s best interest. The COA examined the evidence alleged to support the notion that W’s job opportunity was a material and substantial change and further that it was enough to warrant allowing her to move. The COA recognized that W had changed jobs often. They found that her current job was not truly in jeopardy as she was one of the better qualified employees of the company and was given a lot of responsibility despite some financial company set backs. The COA recognized that while W would obtain a $20,000/year pay increase with the job in CO, it could not be determined if this was material or substantial because W offered no evidence about the cost of living between the Bryan/College Station area and Colorado Springs. The COA notes that CO has a state income tax while TX does not and further that W specifically offered to pay for all travel costs of the child’s visitation so it could be inferred that any material benefit W received from her pay raise would be negated by other expenses. W claimed the schools in CO were better rated but the COA noted that statistics about schools in general offered nothing when the child’s specific school in CO could be identified and W offered no evidence that it was specifically better than the child’s school in TX. Further W had no complaints about the child’s education opportunities in TX. W argued that H had not taken every opportunity to visit with the child but the COA found that he had exercised all his visits and wanted to maintain a close relationship with the child. The COA examined evidence regarding family support in both TX and CO and noted that it existed to the same degree in both places. Overall, the COA found that the evidence did not establish a “material and substantial” change warranting modification. As to the child support order the COA that W had absolutely no pleadings seeking such relief and in fact within her request for relief she had expressly renounced the receipt of any child support. Further there was no evidence offered on child support. As such the judgment was no supported by pleadings or proof as required by TRCP 301. New order reversed and former order reinstated. COMMENT: This opinion is decided upon factual sufficiency grounds and I normally would not have reported it. However, it really stood out to me because the COA clearly took the time to pay attention to the details. It often seems that appellate decisions focus on the big picture and gloss over the finer details that the trial lawyers really thought should make a difference. It is worth reading this Opinion to see that the Amarillo COA dug deep to figure out was a change really material, was it substantial, should broad brush speculation ever be enough? These cases are so personal to the parties and we (lawyers and courts) often take too much for granted. This Opinion reads like the COA recognized that this specific case mattered to this child and that it was important to get it right. I don’t think we see that often enough. The case normally would have been decided by the Waco COA but was transferred to Amarillo under a docket control order. While the Waco COA may have reached a similar result, cudos to the Amarillo court for recognizing the difference that details can make.

  1. Hinojosa v. Lafredo, 2020 Tex. App. LEXIS 10475 (Tex. App. – Dallas December 31, 2020) (mem. op.) (Cause No. 05-18-01543-CV)

H and L, both men, met in NY City in 1997 and began a romantic relationship. H moved in with L in 1999 and they agreed to split monthly expenses. The couple spent Christmas with friends in the Catskills mountains. L gave H a Christmas card which included a note asking “Will you MARRY (commit) ME IN 2000? PLEASE!!! With all our friends and family in attendance.” H believed this to be a marriage proposal while L considered it only to be a commitment as partners since same sex marriages were not authorized. The couple planned a commitment ceremony in Italy in October 2000 and invited 40+ friends to join them for a week at a Tuscan villa. A friend, Ariel, presided over a ceremony that include vows and promises, an exchange of rings, a pronouncement as life partners and a reception with a cake. Neither H or L knew if Ariel was ordained or legally authorized to perform a marriage ceremony. After the ceremony the couple returned to NY and lived together until 2005 when L’s job transferred him to Dallas. H joined L in Dallas where they purchased a house together and later a condo. Both purchases identified the men as “single.” The couple maintained separate bank accounts and filed separate tax returns as single individuals. L accepted a new job in Houston in 2014 and because the couple had been having relationship troubles, told H he did not want him to join him. H filed for a divorce in August 2015, claiming a formal marriage as of October 2000 or alternatively an informal marriage as of March 2005. Trial was to a jury on the issue of marriage, which L denied. Witnesses for H testified that they considered the couple as married although admitted that they had never heard L refer to H as a spouse. Witnesses for L testified that they did not believe the couple was married. L testified that he considered H only his partner and not his spouse and that the parties went out of their way to leave the word God or marriage out of their ceremony. L testified he was not sure he would have proposed marriage in 1999 if it had been legal. Question 1 of the jury charge asked if the couple were informally married and defined the elements of a common law marriage. Question 2 asked what date they were married, if the answer to Question 1 was yes. The jury was instructed that prior to June 26, 2015 marriage between a same sex couple was not recognized in Texas, but the instruction did not specify the significance of the date. H’s counsel objected to the charge and the June 26, 2015 instruction. H requested a submission asking whether or not H and L were married on October 26, 2000 (the date of the Italian ceremony). The jury sent out a question as to whether or not the US Supreme Court decision in Obergefell gave retroactive effect to an informal marriage entered into prior to June 26, 2015. The court responded that they jury had all the information it needed to answer the questions posed. The jury returned a verdict finding that no informal marriage existed and that H take nothing from his suit for divorce. H appealed. In two issues, H claimed the court erred in its charge to the jury. First, H claimed the court failed to submit a question as to whether or not the parties were married on October 26, 2000. H claimed that Obergefell should be given retroactive effect automatically but the COA disagreed and found that this issue had not yet been determined in TX. Further, the COA found that the formal marriage question was unnecessary because there was no dispute that the parties did not have a marriage license (one of the requirements for a formal marriage). Further, the COA found it need not address the issue of retroactivity because there was no evidence that Ariel, who officiated the ceremony, qualified as a person who could perform a legal, ceremonial marriage. The COA found that it was further not error to refuse H’s submission because the question as posed was not proper. H also complained about error in the charge as submitted, stating that the instruction as to the legality of same sex marriage before June 26, 2015 was confusing and probably caused the rendition of an improper verdict, citing the questions raised by the jury. However, the COA pointed out that neither party objected to the answer provided to the jury and neither asked for additional instructions at that time. Further, the COA found that H failed to preserve this error since the objections he raised on appeal were not identical to the objections he raised at trial, a fundamental rule for preserving charge error. Judgment affirmed.