/INTERESTING CASES:  March 6, 2019



Sallee S. Smyth


  1. In re Marriage of Christensen, 2019 Tex. App. LEXIS 777 (Tex. App. – Texarkana February 6, 2019) (Cause No. 06-18-00070-CV)


After 8 years of marriage, W filed for divorce and sought JMC with exclusive right to establish the residence of the parties only child.  H filed a counter petition seeking JMC and the exclusive domicile right.  Neither party pled for a geographic restriction.  During the marriage the parties lived in Cass County where the child attended pre-K however both parties were employed at jobs in Bowie County.  After the parties’ separated, they both relocated their residences to Bowie County and the child began elementary school there.  During trial, W testified that she was moving to Red River County (60 miles from H) and that she had taken a job in Paris, TX which paid her $20K more per year.  H testified that the move would severely impact his time with the child because he would not be able to exercise any of his “school to school” overnight time.  H further testified that there were many medical facilities in the area where W could pursue employment opportunities.  The court named the parties JMC and gave W the exclusive right to designate the child’s residence in Bowie county and awarded H expanded possession periods with the child.  W appealed, arguing that (1) the evidence was insufficient to support imposition of a geographic restriction and (2) that the trial court had no authority to sua sponte impose a restriction where there were no pleadings to support it.  The COA almost summarily rejected W’s first issue finding sufficient evidence that the restriction was in the child’s best interest.  As to the second issue, the COA found that while TRCP 301 does require a judgment to be supported by both pleadings and proof, the rules are relaxed in SAPCR cases.  The COA reviewed the H’s counter petition which asked that “the parties be named as JMC, with all the rights and duties of a parent conservator” and that “[H] should be named as the conservator with the exclusive right to designate the primary residence of the child.”   The COA determined that this pleading requested the court to address the rights and duties of the conservators over the child which in turn gave the trial court “decretal powers” over the issue of the child’s residency, authorizing sua sponte imposition of a geographic restriction.  Judgment affirmed.


  1. In the Interest of N.E.S., 2019 Tex. App. LEXIS 856 (Tex. App. – Dallas February 6, 2019) (mem. op.) (Cause No. 05-18-00451-CV)


NES was born in 2011 to M and F who were not married.  In 2012 the 15th District Court of Grayson County entered a final order in a suit brought by the OAG which order included terms for conservatorship, possession and support.  In 2013 M and F married.  In early February 2015, M filed a pro se action for divorce which landed in the 397th District Court of Grayson County.  M used a form to file for divorce which contained a statement that no other court had continuing jurisdiction over the case.  M did not check the box provided by this statement.  Within her petition she sought orders for support, conservatorship and possession.  F was served by publication but did not file an answer or otherwise appear.  Instead, F filed a suit in CA two weeks later seeking custody of the child which the CA court dismissed for want of jurisdiction.  In May 2015 the TX divorce court signed a final decree which stated that evidence supported its jurisdiction.  F received notice of the decree and in 2017 he filed a MTM which stated that “this court has jurisdiction of this suit.”  Both parties were represented by counsel.  In January 2018 the Court issued an order finding that is had jurisdiction over the suit and denied F’s modification.  F sought FFCL and specifically asked the trial court to issue findings supporting its finding that “no other court had jurisdiction.”   F filed a MNT which claimed that the trial court had no subject matter jurisdiction over the suit.  This motion was overruled by operation of law.  The trial court issued findings stating that the suit originated as a divorce and that neither party challenged the court’s jurisdiction at any time in the original divorce suit or the modification.  F did not seek any additional findings.  F appealed.  The COA initially notes that subject matter jurisdiction must exist and a judgment rendered without it can be collaterally attacked.  TFC 155.001(a) provides that once a court obtains continuing exclusive jurisdiction, no other court has jurisdiction over a SAPCR except as provided by Chapter 155 (and a few other states not relevant here).  If the pleadings suggest that jurisdiction might be disputed, the petitioner and the court have a mandatory duty to ask the BVS to identify the proper court with jurisdiction.  If it is determined that the suit has been filed in the wrong court, dismissal without prejudice is then required.  However, TFC 155.003 provides that a court will have jurisdiction if (1) the court is misinformed by BVS that no other court has jurisdiction, (2) the petition states no other court has jurisdiction and (3) the BVS does not notify the court of its mistake prior to rendition of a final order.  TFC 155.004(b) further provides that a final order rendered in the absence of information from BVS, the order is only voidable (not void) if it is determined that another court actually had continuing jurisdiction.  F’s only issue on appeal argued that the 397th District Court lacked subject matter jurisdiction because it belonged to the 15th District Court and that the 397th could not have relied on misinformation from BVS because no BVS inquiry was ever made.  F argues the final orders are void, not voidable.  Relying on TFC 155.004(b), the COA holds that the final order is only voidable because the 397th signed an order “in the absence of information from [BVS]” and this phrase does not impose an obligation to make inquiry as a prerequisite to characterizing the order as voidable.  F did not raise his jurisdictional complaint until his MNT but then offered no explanation.  If he had done so, the trial court might have been able to consider a transfer.  Because F did not give the trial court enough specificity to correct the error, F did not preserve that error for the court’s review. Judgment affirmed.


  1. Zielinski v. Zielinski, 2019 Tex. App. LEXIS 893 (Tex. App. – Austin February 8, 2019) (mem. op.) (Cause No. 03-18-00063-CV)


H and W met in 2000 at Fort Hood, TX.  H was a 22 year old captain in the army and wanted a family.  W, born in Panama in 1963, was actually 37 years old and had a 10 year old daughter from a prior marriage.  Even though she was 37, she represented to H that she was only 27.  H and W married in 2001 in NC and W listed her birth year as 1973 (not 63) on the marriage license.  H subsequently adopted W’s daughter and help W and child obtain permanent residency in the US.  The parties tried to get pregnant and W had 3 miscarriages over the next several years.  H would attribute this to W’s advanced age (unknown to him at the time) and W claimed it was due to the stress of military life.  W used separate funds to pay for in vitro fertilization.  H and W attended counseling and renewed their vows in 2007.  They separated in 2010 and H filed for divorce in 2014.  An agreed decree and property division was signed in 2015.  The decree obligated H to pay W $1200+ in spousal maintenance for 4 years or until W remarried, whichever was earlier.  H remarried and his new wife became suspicious of his first marriage so H hired a PI to investigate.  The PI discovered multiple documents identifying W’s date of birth in 1963, revealing that she had misled H.  H filed a bill of review to set aside the final decree and to relieve him of his spousal maintenance obligations and he sought damages from W.  After 2 days of trial the court denied H’s bill of review and issued no FFCL.  H appealed and both parties were pro se on appeal.  The COA recites the standards required for a BOR, including establishing a meritorious defense that the party was prevented from making based on fraud, accident or mistake of the opposing party, unmixed with any fault or negligence of his own.  H claims on appeal that he is entitled to a BOR because if he had known W’s true age, he would have sought an annulment based on fraud rather than a divorce.  He offered several documents showing W’s true age and her fabricated age.  The COA agreed that this evidence established the availability of a meritorious defense based on fraud and that he might have prevailed on a claim for annulment versus one for divorce.  However, the COA determined that H could not prove his own lack of fault or negligence in the process.  In response to H’s claims of fraud, the W testified that over the life of the marriage they participated in many legal events (adoption, immigration, military assignments and medical treatments for fertility) and that her correct date of birth was identified on many of the documents involved in these proceedings.  H also admitted that he ultimately obtained the information about W’s age from resources that were readily available to him prior to the divorce.  The COA believed that with due diligence, H could have discovered the truth and thus his own negligence contributed to the entry of a divorce decree instead of an annulment.  Judgment denying BOR affirmed.


  1. In re Marriage of D.E.L, 2019 Tex. App. LEXIS 979 (Tex. App. – Houston [14th Dist.] February 12, 2019) (mem. op.) (Cause No. 14-17-00216-CV)


H and W married in 2005 and had two sons.  When the children were 1 and 3, H committed a gang related murder and was thereafter convicted and sentenced to life in prison without the possibility of parole.  The children, age 10 and 12 at the time of divorce did not know H, had never visited H and did not identify themselves with H in any way.  H’s family offered W no assistance after he went to prison and W only spoke to H’s sister occasionally.  W filed for divorce and sought to be named SMC, asked that H be given no contact with the children and requested that the children’s surname be changed to her maiden name.  H participated in trial by phone.  W testified that she wanted the children’s names changed because she was afraid of H and that as a former gang member she was worried that people might discover the children’s parentage and they could be bullied or suffer emotionally.  W admitted that she had not yet found a way to even tell the children what their father had done or that he was in prison.  After trial the court named W SMC, named F as PC, changed the children’s name, ordered that H have contact with the children only by mail.  The court also awarded possession to H’s sister one weekend every other month.  Before a final order was signed, W filed a motion to reconsider the possession ruling.  The court heard some argument then reset to allow H time to file a response.  The second hearing was heard by the AJ who granted the motion and eliminated the terms for possession by the paternal aunt.  The presiding judge thereafter signed a final decree.  H appealed.  H first argued that the AJ had no authority to rule on the motion to reconsider since there was no written order assigning him to hear the case.  The COA did not reach the issue because it determined that since the presiding judge had the right to modify his rulings at any time during his plenary power, the fact that the judge signed the final decree which omitted terms of the aunt’s possession contrary to his original ruling was in effect a modification within his plenary power and therefore authorized.  The COA further determined that the omission of possessory terms was proper because a court has no authority to grant possession and access to a person who is not a party to the suit.  Since it was undisputed that the aunt was not a party, such an order would have been improper.  As to the name change, the COA found that the evidence supported recognized factors to be considered and that the change was in the children’s best interest.  H argued that the W’s name change petition did not comply with TFC 45.002(b) which required written consents from the children since they were both over the age of 10.  The COA ruled that this pleading defect was waived since no special exceptions were filed.  The COA rejected H’s arguments that he was not given adequate opportunities to defend himself because he offered no evidence disputing the name change at trial when the court asked him if he had anything further to say.  As to limitations on H’s communication by mail, the COA found the evidence sufficient because the children did not know H, had never visited him in prison and actually did not know he was there and direct contact might have caused them emotional harm.  Judgment affirmed.


  1. In re Clay, 2019 Tex. App. LEXIS 991 (Tex. App. – Fort Worth February 12, 2019, orig. proceeding) (mem. op.) (Cause No. 02-18-00404-CV)


M and F had a child in 214, lived together but never married.  When they separated in 2016, F filed a SAPCR.  An agreed order was signed in October 2016 naming them JMC, awarding M primary rights, ordering child support and granting F possession.  In August 2017 M notified F that she and the child were moving in with D.  In January 2018 M filed a MTM seeking increased child support.  M and D got engaged in April 2018 and planned to marriage in October 2018.  In July 2018 M was killed in a car accident.  The child, then 3, went to live with F and his wife.  F filed pleadings in the still pending SAPCR to terminate his child support.  Maternal grandparents (MGP) intervened and sought conservatorship rights to the child, claiming standing under TFC 102.004.  D (M’s fiancée) also filed an intervention within 90 days of M’s death, asking that he be named as a JMC with F.  D alleged standing under TFC 102.003(9) (actual care and control for 6 months) and (11) (parent and child lived with person for 6 months and suit is filed within 90 days after parent dies).  MGP also filed suit in probate court to establish a management trust for the child’s estate which received the benefits of a $400K life insurance policy upon M’s death.  F sought to be named permanent guardian of the child’s estate.  F filed motions to strike both interventions claiming that both MGP and D lacked standing.  After a hearing the trial court denied the motion to strike and F sought mandamus relief.  The COA examined the record and found that as to MGP, they did not carry their burden to demonstrate that F’s appointment as SMC would be harmful to the child.  Further, their failure to produce evidence supporting this high standard likewise refuted their standing to seek grandparent visitation orders.  The COA granted mandamus as to the MGP ruling and ordered the trial court to vacate its order denying the motion to strike in favor or a new order dismissing them from the suit.  As to the fiancée however, the COA went through the standards established by the 2018 Supreme Court decision in H.S. (550 SW3 151) and held that the evidence supported that the child’s principal residence was with D for the requisite period of time and that D had exercised actual care and control over the child in various ways satisfying the standing requirements.  The COA rejected F’s arguments that granting standing to D interfered with his parental rights.  Mandamus denied as to the trial court’s order granting standing to D.





  1. In re Hardin, 2019 Tex. App. LEXIS 1392 (Tex. App. – Amarillo February 25, 2019) (Cause No. 07-17-00368-CV)


H and W married in 1977.  In 2016 W filed for divorce and H filed a counter petition. At the time of the filing, W was 61 and had been retired from teaching since 2010.  H was 62 and had been retired since 2015.  The parties agreed to a division of most of their assets by the time of trial.  The remaining issue concerned the valuation and division of their retirement benefits.  H’s retirement was valued at $357K.  W, under TRS, had elected to receive a 10 year guaranteed payment of $2590/month with a lifetime annuity for the same amount thereafter until her death.  It was undisputed that W had purchased a portion of her years of creditable service for retirement with separate property funds, making 18% of her retirement s/p.  Experts for both H and W agreed that the value of W’s guaranteed payments was $89,925.  They disagreed however on the value of the annuity payments.  W’s expert testified that they were worth only $2590 per month for every month the wife lived after the guaranteed payments and that it was too speculative to value the annuity in any other amount.  H’s expert testified that based on W’s life expectancy, her total retirement benefits had a present value of $552.731 and after deducting W’s s/p portion, the value of the community interest was $381,022.  At the close of evidence the court awarded W all of her retirement benefits and $160K from H’s retirement.  H requested findings and the trial court found that W’s annuity retirement was worth zero because any other value was too speculative.  The court also found that its decision considered that H would receive social security benefits, whereas W would not.  H appealed.  The COA held that valuation errors alone do not constitute an abuse of discretion and it must be shown that the error contributed to a division that was manifestly unjust.  The COA determined that there was “no evidence” which could support the trial court’s finding that the annuity portion of W’s retirement was valued at zero.  Further, the COA holds that a trial court’s valuation that is not within the range of evidence is an abuse of discretion determining that all of the evidence established that the annuity portion was a community asset that had value.  Further, the COA determined that since the evidence established that it could have a value of $281,022 which was a substantial part of the entire community, the trial court’s error caused an improper division.  Property division reversed and remanded.


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