Sallee S. Smyth

  1. In the Interest of A.M., 2020 Tex. App. LEXIS 4269 (Tex. App. – Amarillo June 8, 2020) (Cause No. 07-19-00114-CV)

In 2006 the parties were appointed JMC of their minor child upon divorce. In May 2018, M gave notice of her intent to move with the child from Odessa to Beeville (some 450 miles away). F filed a motion to modify, seeking imposition of a geographic restriction. M filed a counter petition seeking additional c/s. M relocated while the suit was pending. The case was tried in October 2018. M testified that she did not consider the distance before making the move, but she relocated to be with her long term boyfriend, with plans to marry but no date. M testified that the child had been enrolled in school and was attending religious classes also. M testified she would not have to work and could spend more time with the child. M was unwilling to pay for travel costs related to visitation but suggested an exchange of the child at a ‘/2 way point. F testified that he was a police officer in Odessa and that the majority of the child’s extended family on both sides lived in the area. F had been remarried for many years and the child was close with a half-sibling. F testified about the nature of his relationship with the child before the move to Beeville and what is was like after. F was strongly against the amount of travel time (on the road) that it took for the child during weekend visits. Ultimately the trial court granted a domicile restriction and ordered the child returned to the Odessa area. M appealed. Under an abuse of discretion standard, the COA easily determined that the trial court had more than sufficient evidence to justify a geographical restriction in the best interest of the child. As a second issue, M complained that the trial court had failed to interview the child who was 12 at the time of the hearing. Although M did not file a formal request for the interview, she noted that there had been an off-the-record discussion between the judge and both counsel about an interview and she argued that the trial court should have conducted it sua sponte. The COA a significant distinction in determining there was no error. The COA finds that under TFC 153,009(a), it is mandatory for the court to interview a child 12 or older when there is an application on file requesting one. When there is no written request on file, the trial court has discretion whether or not to conduct the interview and the opinion simply states it is not an abuse of discretion when one is not conducted in this circumstance. Finally, M asserts a conflict of interest existed at trial because F’s trial attorney previously represented her in an uncontested divorce years earlier. M raised this issue only in a motion for new trial. The COA notes that M was on notice of the lawyer’s involvement when she was served with the modification petition and she did nothing to raise the issue or concern until after judgment, thereby waiving her complaints. Judgment affirmed.

  1. In the Interest of S.C., 2020 Tex. App. LEXIS 4267 (Tex. App. – Dallas June 8, 2020) (mem. op.) (Cause No. 05-16-00629-CV)

F and M were divorced in 2015 but a final decree was not signed until 2016. In that Decree, F was not allowed overnight visitation and he was ordered to pay child support of $7250/month. In addition, the Decree included a provision which specified that F was to pay 100% of the attorneys fees incurred by M as it relates to “issues concerning the suit affecting parent child relationship and the safety and welfare of the children.” Neither party appealed. Instead, one month later, F filed a motion to modify, alleging a M&S change regarding possession, child support and the Fee Provision. While the case was pending, M would submit her fee invoices to F on a monthly basis. When he did not pay, M would file an enforcement motion. The trial court would enforce, order F to pay and award M fees for the enforcement. After trial on the modification the court found a M&S change as to possession and awarded F an SPO. There were no modifications to c/s or the Fee Provision. The trial court awarded fees for the modification to M based on the Fee Provision. When F noticed his appeal, M sought interim appellate fees under 109.001 which the trial court awarded. F appealed the award of fees in all underlying order, including the modification judgment, the enforcement orders and the temporary orders pending appeal. These appeals were all consolidated. Overall, F argues that the Fee Provision was applicable only to those fees incurred by M in the then pending divorce action and not to future SAPCR suits. Initially, the COA examines whether or not it can address F’s challenge to the Fee Provision of the prior Decree, analyzing whether the issue is void (and thus subject to attack) or only voidable. The COA determines that the 2015 Decree is not void because the trial court had both personal and subject matter jurisdiction and the court was authorized to award fees under TFC 106.002 at that time. As such, the COA characterizes F’s challenge to the validity of the Decree provision itself as a collateral attack which is not permitted. The COA recognizes however that the Fee Provision would be subject to modification if the court found a material and substantial change and thus examines whether the evidence supported such a claim warranting modification. Noting that M was no longer receiving spousal support and her testimony that she could not afford counsel to defend F’s suit, the COA found that there had been no change in M’s ability to pay fees, justifying a refusal to modify and eliminate the Fee Provision. Acknowledging existing limitations on their ability to review the Fee Provision itself, the COA then considered the scope and reach of the Fee Provision itself. F argued that the Fee Provision applied only to those fees incurred by M in the prior divorce suit, arguing that modifications are new and independent suits. While the COA agrees that the procedural rules for new suits apply to 156 modifications, the COA was unwilling to decide that this procedural distinction put an end to the “continuing portion” of a SAPCR which seeks to protect the safety and welfare of the children on an ongoing basis. Thereafter the COA analyzed the sufficiency of the evidence to support the various fee awards. F complained that M’s invoices were so heavily redacted that it was impossible to discern the necessary information establishing those fees as reasonable or necessary and further that because of the various motions, impossible to determine what services were provided on what issue. The COA held that even redacted, the invoices still met all of the requirements of El Apple I (370 SW3 757) showing nature of work, person who performed, hourly rate, and time spent. Further the COA noted that even though privileged information was redacted, M’s counsel testified about their fees and were subject to cross-examination. Further, prior to trial, M provided all unredacted billing to the trial court which had that information available to consider when assessing fees. Overall, the COA found the evidence sufficient. The COA upheld the appellate fee award because it was independently based on TFC 109.001 and not the Fee Provision in question. Finally, H argued that he was entitled to an “offset” of any fees owing to M based on terms in the underlying Decree which granted to F a judgment against M for fees in the amount of almost $2MM. The COA agreed with F that mutual judgments between the same parties are subject to offset, however, the COA notes that in a related mandamus it was revealed that F had sold the judgment to a third party who was now attempting to collect the debt from M. Because the fee judgments were no longer mutual between F and M, no offset could be allowed. Judgment affirmed. CONCURRING AND DISSENTING OPINION: Justice Reichek concurs in the decision regarding the appellate fee award, but dissents regarding the treatment of the Fee Provision as to future SAPCR litigation. Justice Reichek opines that the Fee Provision in the decree relates only to the fees incurred in “the” SAPCR which refers to the divorce only, the suit in which they were resolved. She cites to a history of decisions which have held that the award of fees in future modification suits is not allowed because the court cannot analyze the reasonableness and necessity of fees in future, non-existent litigation. Justice Reicheck asserts that the existing Fee Provision is therefore void and subject to collateral attack. Justice Reicheck would reverse the fee awards as granted under the Fee Provision and would remand the issue back to the trial court to consider whether they should be awarded on the basis of TFC 106.002. COMMENT: It is clear from reading the Opinion that this couple fell into the “financially secure class” and that hundreds of thousands of dollars in fees were being spent on both sides. The Fee Provision itself is unusual in the sense that it is vague and lacks specificity as to the amount of fees that F was obligated to pay for M’s benefit in that suit. Most attorneys are very sure to include specific judgment language or at the very least avoid leaving a fee obligation so open-ended, lending itself to the argument that future SAPCR related fees would be F’s responsibility. Even so, I agree with the dissent that reference to “the suit” clearly identified “the divorce suit” and future SAPCR proceedings were separate and independent. Further, future evidence could establish M’s conduct caused the need for modification or that M’s fees were unreasonable, making a fee award based solely on the Fee Provision as a matter of law unjust. The Opinion does not state if the Fee Provision was “contractual” but such provisions regarding SAPCR’s cannot typically be enforced under contract theories. On the other hand, a court ordered Fee Provision such as the one in this case is rare and I have never seen one. Because the trial court likely believed M could not afford her counsel and further seemed to feel that the fees were reasonable and necessary, it is most likely they would have been awarded by statute on remand if Justice Reicheck had been able to swing the majority vote her way. It’s probably safe to say that the arguments between these folks will remain ongoing, so stay tuned.

  1. In re C.J.C., 2020 Tex. LEXIS 610 (Tex. Supreme Court June 26, 2020, orig. proceeding) (Cause No. 19-0694)

M and F never married but in 2016 were named JMC of their daughter. M was granted primary conservatorship rights, including the exclusive right to establish the child’s residence. M began dating Jason and she and the child eventually moved in with Jason and M and Jason became engaged. In early 2018 M filed a suit to modify, requesting an increase in child support and a modified possession schedule for F. In July 2018, while suit was still pending, M was killed in a car accident. The child begin living with F and he moved to dismiss the modification suit. Before dismissal occurred, the child’s both maternal grandparents and Jason intervened and sought conservatorship and/or possession orders. F challenged the standing of both. The trial court denied standing to MGP but found standing as to Jason under TFC 102.003(a)(9) care, custody and control for a period of more than 6 months. F sought mandamus relief as to the standing issue in the COA and the Texas Supreme Court, both of which were denied. Thereafter, the trial court conducted a hearing on Jason’s request for temporary relief, including periods of possession with the child. F did not object to Jason seeing the child but argued that the court could not issue any orders because it could not be shown that he was unfit, arguing application of Troxel. Even so, the trial court issued TO’s which named Jason as a possessory conservator and gave him specified periods of possession. The trial court stated that it had determined the child’s best interest and that F and Jason should work together as much as possible. F filed a second mandamus challenging the TO. The COA denied relief and he petitioned the Supreme Court. F argued that he is entitled to a “fit parent” presumption and that in the absence of any evidence supporting a finding that he is unfit, the court cannot grant a non-parent rights to his child over his objection. Jason argues that there is no parental presumption favoring a parent over a non­parent in modification suits, relying on the Supreme Court decision in V.L.K., (24 SW3 338). The Supreme Court recognizes the fundamental constitutional rights of parents to care for and nurture their children as well Texas policy which finds that it is presumptively in a child’s best interest to be raised by their parents. TFC 153.131(a) creates a parental presumption in original SAPCR’s but this standard is not carried forward in the standing statute (TFC 102.003) or in the modification statute (TFC 156.101). Jason argues that the absence of a “fit parent” presumption in Chapter 156 means is simply does not apply in modification suits. F argues that the “fit parent” presumption is embedded within the overall best interest standard. The Supreme Court agrees with F, noting that even though there was no evidence suggesting that F was unfit, the trial court’s orders giving Jason rights of possession and other matters resulted because the trial court substituted its own determination as to the child’s best interest in place of F and over F’s objection. While the Supreme Court recognizes that non-parents may achieve standing pursuant to TFC 102.003(a)(9), they do not believe that this alone resolves the constitutional infirmity that can result when a trial court’s best interest determination overrides the express desires of a fit parent. As such, the Supreme Court holds that a “trial court must apply the presumption that a fit parent – not the court – determines the best interest of the child in any proceeding in which a non-parent seeks conservatorship or access over the objection of a child’s fit parent.” The Supreme Court is clear to say that this holding does not alter the burden of proof in a modification suit where neither parent is named a managing conservator in the original order, but only applies when a parent is so named in an original order and thereafter finds themselves facing a modification suit wherein a non-parent seeks conservatorship or possessory rights. In that instance, a fit parent retains the presumption that they act in their child’s best interest. Temporary orders granting Jason relief vacated and mandamus granted. CONCURRING OPINION: Justice Lehrmann offers a concurring opinion which notes that questions regarding the decree of evidence necessary to overcome the fit parent presumption remain unanswered by this decision. COMMENT: To the extent that TFC 153.131(a) provides the level of proof required to overcome the parental presumption when appointing a non-parent conservator in an original suit, and TFC 102.004(a)(1) specifies what is required for a grandparent to file an original suit for conservatorship of a child, I think it would be safe to argue that overcoming the “fit parent” presumption requires evidence substantially more compelling than what has previously been considered a preponderance of the evidence supporting best interest. It seems clear that non-parents seeking conservatorship or possession must now focus substantial attention on evidence which establishes the opposing parent as “unfit.” Evidence that only shows how the child will be harmed if the non-parent is not allowed visitation or that the non­parent would be a better choice is not going to be enough moving forward.