Sallee S. Smyth

  1. In the Interest of J.A.C., 2018 Tex. App. LEXIS 3352 (Tex. App. – Dallas, May 14, 2018) (mem. opinion) (Cause No. 05-17-00768-CV)

Through their mother, twins filed a suit to termination the parent-child relationship between themselves and their adjudicated father (AF) and sought to establish the parentage of another man (3rdP).  Initially 3rdP filed a plea to the jurisdiction challenging the twins standing and the court granted the plea and dismissed the suit.  The twins appealed and dismissal was reversed.  (2016 TAL 7448)  On remand, Mother filed a cross action seeking to establish parentage of 3rdP and for orders regarding conservatorship, possession and current as well as retroactive child support.  3rdP filed, and the trial court granted, summary judgment on mother’s cross-claims based on collateral estoppel, because mother had participated in two prior divorce actions with AF in which AF was adjudicated as the father of the twins.  The first divorce occurred in South Carolina and the children were adjudicated as born during the marriage with mother obtaining custody.  They remarried and the second divorce occurred in Georgia and again the children were found to be born during the marriage.  According to the opinion, mother had a relationship with 3rdP throughout her marriages to AF and ultimately genetic testing excluded AF as the father.  After a bench trial on the twins claims the trial court adjudicated 3rdP as the twins’ father and ordered that their birth certificates be changed.  Mother appealed.  Mother argued that her cross-claim did not seek an “adjudication” of parentage, but only conservatorship, access and support orders, thus, mother argued that the claim of collateral estoppel (issue preclusion) could not be established.  The COA determined that the proceedings in both South Carolina and Georgia included issues of parentage to the extent that this determination was intertwined with the court’s orders there on custody and support.  Further, mother’s requests for orders in Texas regarding conservatorship, possession and support were likewise dependent upon a determination of parentage, holding that 3rdP established the defense of collateral estoppel to avoid mother’s claims.  Mother also challenged the trial court’s failure to terminate AF’s parental rights.  The COA notes however that the twins were the parties seeking termination and they have not appealed the trial court’s judgment.  The COA determined that mother did not have a justiciable interest in that particular ruling and could not demonstrate that she was personally aggrieved by the trial court’s failure to terminate.  Judgment affirmed.

  1. Knowlton v. Knowlton, 2018 Tex. App. LEXIS 3408 (Tex. App. – San Antonio May 16, 2018) (mem. opinion) (Cause No. 04-17-00257-CV)

H and W lived on a 5 acre tract of land in a mobile home during their marriage.  In 2013 H and W tried to an equity loan to make repairs on the property.  H’s mother, Jesse, signed a quitclaim deed for the property only to H which had been printed off the computer by W.  According to W, Jesse signed the deed to assist the parties’ in obtaining the equity loan.  During the application process the bank would not recognize the deed because it failed to contain a description of the property.  So, Jesse then executed a general warranty deed to both H and W.  Thereafter an attorney filed a statutory correction deed regarding the legal description.  According to W, this was done so that H and W could both own the property.  At some point during the process, H also signed an affidavit stating that the property was community.  When a divorce followed, H claimed the property was separate by virtue of the quitclaim deed gifting it to him from his mother.  W claimed the property was community.  The trial court characterized the property as community, ordered it sold with the proceeds to pay off the home equity loan and then divided 50/50 between the parties.  H appealed.  First, the COA examined the nature of a gift, stating that the burden is on the party claiming gift.  However, the COA notes that a presumption arises when a parent makes a gift to a child that the gift was intended for the child but this presumption can be rebutted by clear and convincing evidence.  The COA found that the quitclaim deed did create a presumption of gift that W had to overcome by clear and convincing evidence.  The COA notes that in addition to the evidence regarding the purpose of the transactions, the quitclaim deed itself recited that it was made for “$10 and other good and valuable consideration.”  Further the general warranty deed recited that it was made for “cash and other consideration.”  The COA concluded that on their face, neither deed supported a finding of gift and determined that W overcame the presumption.  Division affirmed.

  1. In the Interest of T.R.H., 2018 Tex. App. LEXIS 3501 (Tex. App. –Beaumont May 17, 2018) (Cause No. 09-17-00001-CV)

M and F never married but had a child together.  In 2009 mother filed a SAPCR and a final order was issued naming the parties as JMC and providing for access and support.  Although not named as a party to the litigation, the final order awarded paternal grandmother (PGM) two weeks possession of the child each year and included terms granting PGM the right of first refusal should the mother ever seek to place the child in day care.  Both M and F signed this order.  Later in 2010 M filed an action to modify the order and named PGM as a co-Petitioner.  Thereafter PGM sought a writ of attachment to enforce her right of possession.  The court ordered M to comply.  Thereafter in 2015 PGM filed a suit for visitation rights and M filed a motion challenging her standing.  The trial court determined that the prior orders granting PGM access were void and sustained the challenge to her standing.  Then M filed her own motion to modify seeking to remove the terms allowing PGM access.  M served citation on PGM and the trial court once again found PGM had no standing, did not allow her to participate and removed her rights of access in the order.  PGM appealed.  The COA holds that TFC 156.002 clearly grants standing to file a suit to modify to any person affected by the order.  The COA references a prior case (321 SW3 785) in which the Houston 14th COA granted standing to modify to a person who was given only telephone access to a child in a prior order.  Further the COA notes that any and all questions regarding PGM’s standing were rendered moot when M filed her suit to modify, named PGM as a party and served citation upon her.  Because PGM clearly had a history with the child and further was a party affected by the order to be modified, the COA reversed and remanded the case for a new trial.

  1. In re Slagle, 2018 Tex. App. LEXIS 3588 (Tex. App. – Houston [14th Dist.] May 22, 2018) (mem. opinion) (Cause No. 14-16-00113-CV)

H and W married in 2000.  W filed for divorce in 2014.  At the time of divorce, W was employed and earning a substantial salary.  H was unemployed but admitted that he spent approximately 60 hours per week working on a litigation matter involving a company that he formed prior to the parties marriage called Graphic Creations.  H also was heavily involved in day-trading but admitted losing at least $130K on that endeavor in one year.  At trial the evidence established that Graphic Creations existed at the time of marriage.  It was a developed as a vendor located in a Six Flags amusement park under an agreement whereby a certain percentage of its profits was paid back to the Six Flags corporation.  The business grew and existed in several parks but eventually Six Flags increased the percentage agreement based on its own financial difficulties.  H eventually had to shut down his business but he had sued Six Flags over the situation and this was the litigation that he devoted much of his time to.  Throughout the marriage the couple loaned a total of $680K to Graphic Creations from W’s salary.  Further H paid himself a salary from the company at the end of each year and then loaned it back to the company.  This amount totaled another $164,500.  After trial the court concluded that Graphic Creations was H’s separate property and that the community was entitled to reimbursement of $681K, of which W was entitled to $340K.  To satisfy this award the trial court awarded certain assets totaling $275K to W and obligated H to pay community debts amounting to the $65K balance.  H appealed.  Initially H argued that there was insufficient evidence to establish that Graphic Creations was H’s separate property because W offered no evidence on the issue.  The COA determined however that H’s admissions at trial alone were sufficiently clear and uncontradicted to support such a finding.  H likewise challenged the trial court’s division which the COA construed as a challenge to the trial court’s treatment of W’s reimbursement claim.  The COA noted that the trial court has broad discretion in resolving a reimbursement claim and that no abuse was present where the trial court sought to offset the amount W was entitled to by awarding her various community assets and obligating H to pay certain debts, all together equaling the amount of the reimbursement claim.  H’s other issues were not preserved and judgment was affirmed.  COMMENT:  I included this case because I’m not clear how the reimbursement even harmed the H.  The reimbursement was based on community monies expended to benefit H’s separate estate.  W was already entitled to an equitable division of the existing community estate, so when the trial court awarded existing community assets to her to satisfy the community’s claim for reimbursement against H’s separate estate, how does this even count as reimbursement?  The COA does not address this but it seems to me that W is the party who should have challenged the manner in which the trial court decided to handle the reimbursement claim.  Oh well?!

  1. In the Interest of E.J.P., 2018 Tex. App. LEXIS 3623 (Tex. App. – Amarillo May 22, 2018) (mem. opinion) (Cause No. 7-17-00304-CV)

F filed suit to modify seeking to be named as primary JMC of the parties’ children and for terms of possession for mother as either agreed or ordered by the trial court.  At trial, evidence was admitted establishing that M had cohabited with and then married MP.  The evidence established MP’s history of drug abuse and trafficking as well as violence and abuse against his own child and his former girlfriend who was allowed to testify.  Other evidence established that the children were extremely fearful of MP based on things they had been exposed to while in their mother’s care.  The children’s therapist testified that MP should not be allowed to be with the children unless he attended parenting classes and participated in anger management counseling.  The court named F primary JMC and issued an injunction that barred M from allowing the children to be around MP until he had successfully completed a batterers program and parenting classes.  The court included terms in the order which allowed the parties to seek a future hearing to determine if MP had complied with the programs as that might warrant further orders lifting the restrictions.  M appealed.  First, M challenged admission of evidence regarding MP which dated back 5 years prior to the order sought to be modified.  The COA noted that the Supreme Court (436 SW3 793) had implied that historic misconduct is relevant to an issue of conservatorship which in turn implies that past bad acts of a potential custodian are likewise relevant.  The COA concludes that just as a parent’s history is relevant to deciding matters of custody, so too is the history of those persons with whom the parent associates and to whom the children may be exposed to.  In addition, M challenged the orders for MP to attend anger management and parenting classes, claiming it was an abuse of discretion to order MP to do so.  The COA noted that nothing in the order obligated MP to attend.  Instead, the order only provided that M could not allow MP access to the children unless he did so, but it was his choice if he wanted to go or not.  Further, M complained about there being any basis for a “compliance hearing.”  The COA notes that when a court issues orders affecting rights of custody or possession which are based on a contingent event, it only makes sense that the trial court should be able to exercise its continuing jurisdiction to monitor whether or not the contingency occurred.  The COA found no error in terms which permitted the court to determine compliance as a potential basis for establishing a material and substantial change which justified further modification of its orders in the future.  Judgment affirmed. 

  1. Gadekar v. Zankar, 2018 Tex. App. LEXIS 3934 (Tex. App. – Tyler May 31, 2018 (mem. opinion) (Cause No. 12-16-00209-CV)

This appeal from a final decree of divorce, property division and SAPCR orders was prosecuted by the appellant pro se.  As such there are numerous issues addressed within the Opinion but only a few of interest which bear mentioning in this summary.  The first one relates to H’s complaint that the trial court erred in refusing to allow testimony by the parenting facilitator appointed in the case.  The COA recognized that PF’s may testify under statutory authority but that testimony is limited to only those matters which may provide the basis of recommendations made to the parties as arising from the duties imposed upon the PF.  The COA found nothing in the court’s order appointing the PF that authorized testimony as to recommendations regarding conservatorship, possession and access and further noted that such testimony is specifically prohibited by TFC 153.6081 and 153.6082(e).  A second issue of interest relates to H’s complaints regarding the exclusion of certain evidence.  First, H offered Exhibit 12 which was a 231 page exhibit consisting “largely” of emails between the parties.  He acknowledged that there were some other emails mixed in from 3rd parties but primary they were between the parties and the court should review them.  W objected on the basis of hearsay which the trial court sustained.  On appeal the COA noted that while the exhibit did contain email addresses belonging to H and W, it included at least 7 other email addresses which appeared to belong to former legal counsel.  The COA notes that a trial court is never required to sort through challenged evidence to ascertain what is admissible and what is not.  This was H’s responsibility and when he did not clearly segregate the 3rd party emails it was not error for the trial court to exclude the entire exhibit.  Next H complained about exclusion of Exhibit 13, a collection of “chat” transcripts or instant messages.  W objected again as hearsay which was sustained.  H made an “offer of proof” to “authenticate” the messages as being attributable to email address known to him.  The COA notes that under the Court of Criminal Appeals decision in Tienda (358 SW3d 633), testimony that a certain message comes from a certain persons email address or that a text emanates from a cell phone number assigned to the purported actor are alone insufficient to support a finding of authenticity.  The COA noted that H did not offer a business record affidavit from Google or seek to compare the specific messages between him and his wife to the content of other messages identifying content or distinctive characteristics which could have established them as authentic.  Because H failed to take these additional steps when offering the exhibit or even within his offer of proof the COA found the trial court did not err in denying admission.  Judgment affirmed. 


2018-06-05T14:37:50-05:00 June 5th, 2018|SideFeatured-Home|