Sallee S. Smyth


  1. In re Payne, 2018 Tex. App. LEXIS 2449 (Tex. App. – Austin, April t, 2018) (mem. opinion) (Cause No. 03-17-00757-CV)

H and W divorced in 2007 and W was named primary JMC.  The decree was modified by agreement in 2010 and provided that the children would live with H in Pennsylvania while W worked overseas.  W returned in 2016.  In 2017 H filed a petition to modify seeking to be named as primary parent.  The record establishes that there were several incidents where W removed the children from H’s possession without consent and refused to return them and had been held in contempt and spent time in jail for these offenses.  The record suggests that the court issued temporary orders awarding W only supervised access with the children.  W paid a jury fee.  Thereafter H filed a motion to modify the temporary orders and sought an award of interim attorneys fees.  At the hearing only H’s counsel testified.  She contended that W had created circumstances giving rise to increased fees, including in part, the request for a jury which would cause H to incur an additional $32K in fees to go to trial and that H could not afford to continue the litigation unless W was required to pay interim fees.  The court awarded H’s counsel $25K in interim fees.  W filed a petition for writ of mandamus arguing that there was no evidence to establish that the temporary orders were necessary for the safety and welfare of the child.  The COA notes that under TFC 105.001(a)(5) the trial court may award fees only if the party seeking fees establishes that they are necessary for the safety and welfare of the child.  The COA notes that although H asserted all of W’s behaviors within his mandamus response, no evidence of these events was presented before the trial court in the hearing relating to fees.  Although the trial court had heard evidence on these matters in prior hearing, H did not request the court to take judicial notice of those hearings or of the specific evidence and facts which supported his claims.  Further, H offered no evidence of his own financial circumstances or his inability to pay the fees necessary to take the case to trial.  Finally, the COA noted that at the time of the hearing, order were in place for W to have supervised access so the safety of the children was covered.  Mandamus granted.

  1. In the Interest of C.F.M., 2018 Tex. App. LEXIS 2490 (Tex. App. – Dallas April 9, 2018) (mem. opinion) (Cause No. 05-16-00285-CV)

H and W married in 2004 and had two children.  In 2008 they traveled to Kansas City over the holidays to visit family.  W and the kids did not return to Texas but stayed in Kansas to assist with issues surrounding their own parents.  H filed for divorce in February 2009 and W returned with the children to TX in March.  The parties were named temporary JMC but approximately 6 months later the older child, then age 4, made an outcry of sexual abuse against H and he was given supervised access.  The child later recanted but the orders were not changed.  H exercised his visitation sporadically and then not at all beginning in August 2012.  When the case went to trial November 2014 he had not seen the children in over two years.  Trial of conservatorship, characterization and fraud were before a jury.  The jury named W SMC and found H had committed fraud with damages in excess of $1million.  H appealed and challenged rulings that excluded the expert testimony of his therapist and admitted various forms of evidence casting him in a bad light.  H also claimed the court erred in allowing the amicus attorney to testify.  The COA examined each issue.  First, as to exclusion of H’s expert, the COA noted that the trial court made pre-trial rulings and excluded the therapist as a sanction for H’s discovery abuse.  The trial court had issued findings detailing past discovery abuses and lesser sanctions which had not cured H’s behavior.  H, citing to In re PMB (2 SW3 618), argued that the court must not exclude evidence as a discovery sanction when that goes to the best interest of the child.  However the COA noted that H did not challenge any of the trial court’s findings that warranted sanctions to begin with and these findings demonstrated that exclusion of the expert was an appropriate discovery sanction.  Regarding the admission of evidence, the COA evaluated each exhibit complained, determining for the most part that the trial court’s rulings on any objections raised were correct.  One item was prior temporary orders which contained findings and conclusions made by the trial court.  H argued on appeal that this was equal to impermissible judicial testimony, citing In re MS (115 SW3 534).  In MS, the Supreme Court held that trial court findings in orders, while not testimony, are a comment on the weight of the evidence and should be redacted before admission.  Even so, in this case, H did not object at trial to the admission as a comment on the weight of the evidence or make that argument on appeal and thus the issue was no preserved.  Finally, H claimed that comments by the amicus attorney in opening statements and closing arguments amounted to improper testimony precluded under the TFC.  The COA examined these and determined that the amicus’ comments in closing were merely his summary of the evidence presented at trial and not his own, independent opinions, thus they were not improper.  H also complained about admission of various emails which included the amicus and that this amounted to testimony by the amicus through the emails.  The COA determined that H only objected to one email on the claim that it was “testimony.”  The COA found that even if it was, reversal was not warranted because the admission of this one email did not cause the rendition of an improper judgment.  Affirmed.

  1. In re Meekins, 2018 Tex. App. LEXIS 2650 (Tex. App. – Houston [1st Dist.] April 17, 2018, orig. proceeding) (Cause No. 01-17-00696-CV)

M, from TX, worked for a Houston based company but traveled extensively to the midwest for work.  She met F in Illinois and they began a relationship.  M gave birth to their child in TX in 2011.  A short time after birth, M returned to work and she and the child moved to Illinois to be with F.  They traveled between Ill and TX over the next two years.  In 2012 M purchased a residence in Friendswood, TX and a condo in Galveston.  In 2013 M filed a SAPCR in Galveston County.  The parties agreed to the order adjudicating F as father and determining custody and support.  The final order named TX as home state and gave M the exclusive right to establish domicile in Galveston and contiguous county.  The order gave F a modified SPO that changed to an SPO when the child reached school age.  The parties did not follow the possession schedule because M continued to travel a lot for work and she voluntarily allowed F to exercise substantially more possession than provided in the order.  When M had the child she traveled with M both around the Midwest and back and forth to TX.  The child attended pre-school programs in Ill, took dance classes there and visited both doctors and dentists.  In March 2017 F filed a suit to modify, acknowledging CEJ in Galveston County but requesting a “transfer” of the suit to Cook County Ill which he claimed was now the child’s residence and home state.  F also filed an action in Ill.  M filed a motion to strike the motion to modify and requested transfer.  F filed an affidavit supporting his requested relief.  M filed a controverting affidavit.  A visiting AJ denied the transfer and the motion to strike.  F sought de novo review with new counsel who argued before the presiding judge for the first time that the trial court lacked subject matter jurisdiction under the UCCJEA when the original 2013 order was signed.  F claimed Ill was then the child’s home state.  After a full evidentiary hearing detailing the parties’ connections to both Ill and TX the trial court granted F’s motion to transfer and abated the TX proceeding until the Ill court determined and ruled that it would accept jurisdiction.  After the hearing M filed several motions for enforcement re: possession which the trial court did not hear.  M sought mandamus relief.  The COA first considered whether the TX court had proper subject matter jurisdiction over the original order as that issue can be raised at any time.  Based on the record, the COA determined that there was enough evidence regarding M’s residence in TX with the child preceding that order to justify the trial court’s implied finding that it had proper jurisdiction to make an initial child custody determination in 2013.  Further, the COA recognized that this established CEJ in the TX court.  Thereafter the COA considered whether the TX court retained that CEJ, determining that M and the child had enough significant connections with TX that in fact the filing of the modification was proper in TX.  Not finished with the analysis however, the COA reviewed the evidence to determine if the evidence was sufficient to support the trial court’s implied decision to transfer the case to Ill based on inconvenient forum.  Again, the COA found that based on all the evidence, it was within this trial court’s discretion to decide that Ill was better suited to handle issues concerning custody and possession.  However, the COA noted that the jurisdictional scheme under UIFSA is different and does not allow a TX court discretion to defer its CEJ jurisdiction over child support unless the parties agree.  Since there was no agreement, the COA found that mandamus should be granted as to the transfer of that portion of the case seeking to modify child support, which issue should remain in TX.  As to the court’s refusal to hold a hearing on M’s enforcement motion, the COA found that the pleading was filed after the court issued a stay and therefore was of no effect.  Mandamus denied as to transfer of custody issues and failure to hold a hearing; mandamus granted as to transfer of child support matter.

  1. In the Interest of M.C.K., 2018 Tex. App. LEXIS 2932 (Tex. App. – Houston* [14th Dist.] April 26, 2018) (mem. op.) (Cause No. 14-17-00289-CV) (*transferred from 3rd COA under a docket equalization order)

Shortly after birth, the OAG filed suit to establish the parent-child relationship and child support.  In that order, F and M were named JMC with M have exclusive rights and F paying support.  When the child was 15 months old a modified order was signed affecting F’s possession.  Shortly before the child’s 4th birthday F filed a motion to enforce his possession and M filed a motion to modify that possession, seeking supervised, claiming the child had returned from a visit with genital bruising and F had recently been charged with sexual assault of an unrelated adult.  An amicus was appointed and shortly before the child turned 5 they all attended mediation.  An MSA was signed and included agreements on several unpled issues.  The MSA reserved for trial issues re: whether F should comply with random alcohol screening, whether F owed unreimbursed medical, whether F should get make-up visits and whether the child should be homeschooled.  M asked that the MSA be incorporated into an interim order which specified that M retained the exclusive right to educational decision unless modified at trial.  Trial began several months into the school year.  On the day of trial M objected to going forward on the education issue because F had no pleadings on file.  F argued that the issue was expressly reserved in the MSA but he would file pleadings and did not object to a brief continuance to allow M’s counsel to prepare.  The court gave M an option: either try the issue now or get a reset and allow F to cure.  After discussions in chambers with the court and counsel to attempt resolution the parties announced the issue would have to be tried.  When the first witness was called, M objected again to the lack of pleadings.  M expressed that her concern was not “surprise” but instead she wanted to make sure F carried the BOP on modification of the educational right since she was the only party with modification pleadings on file which judicially admitted a material and substantial change, noting however that her admission did not go to the unpled education issue.  The court assured M that F carried the burden.  F moved for an oral trial amendment which the court granted.  Only M and F testified and the trial court ruled that the right of education would be held jointly by both parents and that the child would attend public school unless the parties agreed otherwise.  M appealed.  M raised the pleading issue on appeal, arguing that it was error to grant an oral trial amendment because there could be no amendment if there was no underlying pleading.  The COA determined that although F had never filed a modification pleading, he had filed an enforcement pleading that could be amended.  Further, M claimed the oral amendment was never reduced to writing and thus it remained defective.  While the COA agreed, it noted that M did not raise this objection in the trial court and thus it was waived.  The COA concluded that the judgment was adequately supported by the pleadings.  Further, M argued that the evidence was insufficient to support a material and substantial change regarding the child’s education.  F offered evidence that M did not homeschool on a specific curriculum track and that the child could not express what she was learning when asked.  F offered evidence that the child was isolated and had never attended a birthday party for any friends.  M acknowledged that she did not follow a curriculum and purchased books online or at half-price book stores.  She admitted the child had not attended any birthday parties but claimed the child played with friends in the community although she could not name any.  M testified that she homeschooled her two older children, 11 and 16, without complaint.  F offered that the child was only an infant when the original order was issued and that the parties had not focused on education as an issue until now and that things had changed in light of his concerns for the child’s education.  The COA found the evidence was sufficient to support modification of the right to make education decision.  Affirmed.

2018-05-02T15:51:16-05:00 May 2nd, 2018|SideFeatured-Home|