Sallee S. Smyth

  1. In re Cisneros, 2020 Tex. App. LEXIS 2889 (Tex. App. – Corpus Christi April 7, 2020, orig. proceeding) (mem. op.) (Cause No. 13-20-00094-CV)

Nancy and Sherie met in 2006. Sherie was the mother of a 3 year old daughter, SDE. Nancy and Sherie began dating in 2010 and began living together shortly thereafter. They married in 2018. During the time they lived together, Nancy cared for SDE, doing all things that a parent would do in raising a child. In January 2020 Sherie filed for divorce and obtained a TRO restricting Nancy from possession of the child. This TRO conflicted with a magistrates Protective Order issued earlier which made a finding of family violence by Sherie against both Nancy and the child and awarded temporary possession of the child to Nancy. Within he divorce petition Sherie challenged Nancy’s standing to seek custody as a non-parent. The divorce court scheduled a hearing on standing. Nancy was the only witness to testify and offered evidence of her historical relationship with the child and her participation in raising her. Sherie argued that the question of standing was constitutional and that Nancy, a citizen of Mexico, was a flight risk with the child. The trial court refused to hear matters regarding the family violence and announced that it did not believe Nancy had standing. Upon continued argument from Nancy’s counsel, the trial court repeatedly stated that Nancy had no standing. The court granted temporary custody to Sherie’s mother, the child’s grandmother, and ordered that the child would live in Nancy’s residence with her GM. The order prohibited access by both Sherie and Nancy to the child until the criminal case (PO matter) was resolved and CPS investigation was concluded. Nancy sought mandamus relief. The COA initially notes that there was no written order signed, however, based on the record, mandamus is available when there has been an oral ruling that is clear and direct. The COA determined that the judge’s repeated statements that Nancy had no standing were sufficient to permit mandamus relief. The COA examined the record in light of the Supreme Court’s guidelines in In re H.S. (550 SW3 151) concerning standing claimed under TFC 102.003(a)(9) (six months care and control). The COA found that Nancy had served in a co-parent capacity for SDE for more than a decade and that the evidence was more than sufficient to meet the statutory standing requirements. Regarding Sherie’s credibility challenge to Nancy’s testimony, the COA found that Sherie had the opportunity to put on other evidence contradicting Nancy’s claims but did not do so. In this situation, the COA held that the trial court could not simply ignore Nancy’s undisputed claims. The COA acknowledged that an equitable claim of unclean hands as a basis to deny mandamus relief was viable but only when the record established that the petitioning party’s conduct was such that it caused serious harm to the other party which could not be remedied by other meanss. In this case, the COA did not find that Nancy’s conduct as alleged by Sherie rose to the level that would justify application of the unclean hands doctrine. Mandamus granted.

  1. In re T.E.R., 2020 Tex. App. LEXIS 2964 (Tex. App. – Texarkana April 9, 2020) (Cause No. 06-19-00073-CV)

Lisa and Mandy began dating in 2008. They married in Connecticut in 2009 and returned to their home in Texas as a married couple. Several years later, they decided to adopt. According to Mandy, if only Lisa adopted they could take advantage of a legal plan Lisa subscribed to and the adoption cost would only be $750. They had a joint baby shower and in 2014 Lisa adopted TER. When TER was 3, the couple divorced by agreement. The decree named Lisa as the child’s only parent and appointed Lisa and Mandy as JMC with Lisa having the exclusive right of domicile. The decree provided mutual releases of all claims with the exception of any future claims of adoption. Mandy exercised possession with TER under the terms included in the decree. In 2018, Mandy filed an original petition for adoption of TER and asserted standing under TFC 102.005(5) which provided that a suit seeking adoption could be brought by an adult who the court determined to have substantial past contact with the child. Lisa challenged Mandy’s standing. The court held a hearing and issued findings which established that Mandy had lived with Lisa and the child for more than 3 years before the divorce and had fully acted as TER’s parent during that period. The court further found that Mandy had consistently exercised her visitation with the child after the divorce, that Mandy was a managing conservator who had consented to the adoption. Ultimately the trial court determined that Mandy had substantial past contact with the child sufficient to warrant standing to adopt and that TER’s adoption by Mandy was in the cihld’s best interest. Lisa appealed. The COA recognized that the standing issue was a mixed question of law and fact and that its evaluation of the issues on appeal would be determined under a hybrid standard of review. Based on the record the COA found that although Lisa challenged many of Mandy’s factual claims, the trial court was allowed to determine that Mandy’s testimony was more credible. The COA noted that a lot of Lisa’s testimony from the earlier divorce proceeding which supported Mandy’s participation in raising TER had now changed in the hearing on standing. The COA found that the evidence was sufficient to support the trial court findings and further that Mandy’s history with the child rose to the “substantial” level required by statute. The COA further found that the evidence was sufficient to support a determination that TER’s adoption by Mandy was in the child’s best interest, which included the adoption social study report. Judgment of adoption affirmed.

  1. M,B. v. S.C., 2020 Tex. App. LEXIS 3016 (Tex. App. – Fort Worth April 9, 2020) (mem. op.) (Cause No. 02-19-00168-CV)

H and W divorced in 2013 and the court approved their agreement incident to divorce which was further based on an MSA. The AID divided several real estate interests held by the parties. The AID further provided that if H, his company or any related entity held an interest in any other real estate on the date of the parties’ MSA which had not closed by that date, then in that event, the parties’ son and daughter would each receive a 12.5% profit interest in any closing which occurred within two years. Three years later, W filed suit in a civil district court alleging that there were 4 real estate partnerships which had been left undivided by the decree and she further claims for (1) breach of the MSA and AID by H for failing to divide and pay over profit interest to the children; (2) money had and received for failing to pay over $700K to W for her “at least 50% interest” in the 4 partnerships; (3) declaratory judgment for the daughter establishing her interest and (4) a suit for partition of the undivided community property interest in the 4 partnerships. H filed a plea to the jurisdiction as to the W’s claims for declaratory judgment, MHAR claim and partition suit, alleging that the divorce court had exclusive jurisdiction over the matter under TFC Chapter 9. The district court granted H’s motion and granted W the right to a permissive appeal as to the partition issue only. On appeal, the COA first acknowledged a district court’s jurisdiction under the TX Constitution and Government Code, determining that the district court in this case would have proper subject matter jurisdiction over W’s claims unless another court was granted exclusive jurisdiction by statute. The COA then examined TFC Chapter 9 statutes and determined that the plain meaning of TFC 9.201 permissively allowed either party to file a suit to divide undivided assets and that no part of the statute made that filing mandatory in the divorce court. The COA concluded that the Legislature did not intend to vest exclusive jurisdiction in the divorce court. The COA acknowledged that while there were certain advantages and disadvantages to be considered when filing a claim under Chapter 9 vs. a partition suit under TRCP (i.e. just and right vs. 50/50; applicable statute of limitations, etc.) this did not deprive the petitioning party of a jurisdictional choice. The COA held that W had the right to seek partition relief in the district court (not the original divorce court). Order granting plea to jurisdiction reversed. DISSENTING OPINION. Justice Sudderth dissents, noting that while TFC 9.201(a) is generally permissive of a former spouse’s right to file suit and seek a division of undivided property, TFC 9.203 is more specific when stating that “If a court of this state failed to dispose of property subject to division in a final decree … even though the court had jurisdiction over the spouses or the property, the court shall divide the property in a manner that the court deems is just and right …” Justice Sudderth opines that TFC 9.203(a) further modifies the permissive language of TFC 9.201, making it clear that if the divorce court previously possessing jurisdiction failed to divide property, then it is the only court that may do so in the future. COMMENT: TFC 9.201(a) states that “Either former spouse may file suit as provided by this subchapter to divide property not divided or awarded … in a final decree.” TFC 9.203(a) (as part of Subchapter C) is then more specific by providing that the divorce court is the court where suit should be filed. For enforcement proceedings, TFC 9.001(a) grants exclusive jurisdiction to the divorce court, making it clear that a former spouse “may request enforcement … by filing a suit to enforce as provided by [Chapter 9] in the court that rendered the decree. ” Although TFC 9.001 addresses the issue in a more direction fashion, I think the dissent makes a valid point. Although W may have secured more than 50% of the interests in a Chapter 9 suit (just and right), perhaps she chose the TRCP partition route because she was outside Chapter 9 two year SOL. Hmmm?

  1. In the Interest of L.B., 2020 Tex. App. LEXIS 3018 (Tex. App. – Fort Worth April 9, 2020) (mem. op.) (Cause No. 02-19-00345-CV)

In 2016, the trial court issued an order granting termination of F’s parental rights, but not M’s, appointing M and paternal grandparents (PGM) JMC, awarding primary right to designate the child’s residence to PGM and ordering M to pay child support. The SAPCR ordered possession exchanges to occur at a police station in Sherman, TX. Subsequently by agreement the parties agreed to exchange in Greenville, TX. In 2017 M filed a motion to modify, asking that she be named as the conservator to designate the child’s residence and she requested that PGP be ordered to pay her child support. PGP filed a counter claim seeking an increase in M’s child support. While litigation was pending, PGP designated Elliott, the child’s therapist since 2012, as their expert. M filed a pre-trial motion to exclude Elliott and her report, claiming that her opinions were not relevant to the issue of material and substantial change and further that she had failed to specify or attach the underlying data upon which she relied to support the opinions offered in her expert report. M further argued that PGP prevented her from taking the child to a counselor in her hometown and thus she was not allowed to offer rebuttal opinions challenging Elliott. The trial court denied M’s motion to exclude and the case went to trial. Elliott was allowed to testify. Ultimately the trial court denied M’s request to modify primary conservatorship finding no material and substantial change on that issue but granted a small increase in support and modified the possession exchange location. M appealed. The COA affirmed the judgment finding that the court did not abuse its discretion in denying a conservatorship change based on sufficient evidence establishing no change warranting such a modification. M further asserted error regarding admission of Elliott’s expert testimony, claiming that because Elliott failed to provide the underlying data supporting her opinions and/or that such data was insufficient to support her opinions, creating an analytical gap which justified exclusion of the expert testimony. The record established that Elliott’s testimony as well as her report identified the data that she relied upon including psychological testing, collateral information provided by the child’s grandparents and teachers and the progress she herself had seen in the child through her ongoing therapy. Elliott testified that this was the type of information typically relied upon in her field to support the type of expert opinions she offered. Based on her testimony and her report the COA found that this evidence, taken in tandem, did not reveal an analytical gap between the information relied upon and the opinions offered, justifying that admission was proper. Significantly, the COA also found that Elliott’s failure to specify in her report the actual underlying data she relied upon and her failure to include that data (i.e. school records) as an attachment did not render her report inadmissible. The COA states “Underlying facts or data are not required to be disclosed initially; the specifics of the underlying facts and data are subjects for voir dire or cross-examination” citing TRE 705(a) – (b). The COA also found M’s arguments regarding her inability to obtain rebuttal opinions unpersuasive, noting that M was not prevented from retaining a rebuttal expert, M had plenty of time to do so, PGP did nothing to interfere with M’s ability to contact Elliot herself or obtain the child’s medical and school records and PGP did not oppose the child seeing a separate counselor so long as Elliot (the primary counselor) approved. The COA determined that M was not restricted in putting on her modification case. Judgment affirmed.

  1. In re Athans, 2020 Tex. App. LEXIS 3024 (Tex. App. – Beaumont April 9, 2020, orig. proceeding) (mem. op.) (Cause No. 09-20-00074-CV)

H and W married in August 2017. In January 2019, H filed for divorce. The trial court signed an agreed decree in March which obligated H to pay W $40,000. Shortly after the decree was signed, H learned that W had been arrested on bigamy charges. H filed a MNT which alleged that his marriage was void and the decree should be set aside. H claimed that W had lied in her deposition about her prior marital status. The trial court denied the MNT and H perfected an appeal. W sought and obtained temporary orders pending appeal which obligated H to pay her temporary and retroactive spousal support of $15K. The day after such payment came due, H dismissed his appeal. Thereafter, W filed a motion to enforce the final decree alleging H failed to pay her the $40k and the $15K. W sought contempt and jail time. H asserted an affirmative defense that the final decree was void since the marriage itself was void. At the contempt hearing the trial court excluded H’s evidence of W’s bigamy and determined that it was inadmissible as a collateral attack on the decree. The court held H in contempt, sentenced him to 5 days in jail and suspended the sentence provided specified payments were made. H sought mandamus relief. The COA found a clear abuse of discretion by the trial court, noting that since at least 1877 the TX rule has been that a void judgment is not merely erroneous, but it is a complete nullity for all purposes and that it can be called into question in a direct proceeding or in any other proceeding in which it becomes relevant. The COA found that since the TFC establishes H and W’s marriage as void if there is evidence that W’s prior marriage was never dissolved, this evidence was absolutely relevant to W’s claims to enforce the final decree and that it was error not to admit it. H must be allowed to collaterally attack the validity of the divorce decree in the contempt proceeding because if the marriage is void, the divorce decree is likewise void and thus cannot be enforced. Mandamus granted.

  1. In the Interest of 2020 Tex. App. LEXIS 3467 (Tex. App. – Houston [14th

Dist.] April 23, 2020) (Cause No. 14-18-00281-CV)

M and F have a child in 2015. The OAG brings suit to establish parentage and the parties enter into a MSA adjudicating F as father, naming the parties JMC with M having right of domicile and ordering periods of possession. The trial court signed a SAPCR Order in early 2017 incorporating the agreement. One month later, F filed a motion to modify and sought TO naming him primary, asking for supervised visitation and psych evaluation for M, injunctions re: firearms and passports and authorizations for on-line communications only. F made significant impairment allegations as to M including threats with a gun, other violence against him, threats of suicide, withholding visits, and volatile possession exchanges. The court issued a TRO granting immediate relief and set a hearing for TO. Both parties testified and evidence supporting F’s allegations was admitted. The Court granted F most of the relief he sought. In a hearing 2 weeks later a psychotherapist testified that he did not find M to be a danger to herself or others. The court issued modified TO reinstating M as primary JMC and issuing orders for a neutral exchange location and therapy for M. The trial court also appointed a GAL for the child with directives to investigate and make recommendations on continued therapy for M, other treatment as needed, possession schedules and anything else that might facilitate the relationship between M, F and child. At a later GAL review hearing the GAL expressed continued concerns regarding M. The court modified TO and gave F an expanded possession schedule and ordered a full psychological evaluation. M fled with the child to Mexico. The court issued a writ of attachment and a new TRO naming F as SMC with restrictions on M’s access. M’s counsel asked to reset the next hearing with the promise that M was returning with the child. M did not show for the reset. M’s parents pled the 5th when called to testify. The court made findings and issued various orders including an award of fees to F for $135K. M was arrested in Mexico and returned to TX with the child. The parties subsequently signed an MSA which provided for M’s conservatorship and possession to build in phases and steps dependent upon compliance with various orders. For example, M’s possession began as supervised with financial obligations and over time, if M complied with all steps, she would have an expanded SPO in 3 years. M agreed to child support and medical support and to share a portion of day care expense. The MSA provided that if M failed to meet any of her c/s obligations, she would revert back to step one of the possession orders. The MSA also provided that M would be held in contempt for possession violations occurring while she was in Mexico, with a 120 days sentence suspended upon certain terms. M also agreed to pay $41K in attorney fees as c/s. The MSA provided that a “Children’s Bill of Rights” would be included in a final order and that the mediator would serve as arbitrator for drafting disputes. Several drafting disputes were submitted and rulings were obtained. The trial court signed a modified SAPCR order and M appealed. M argues that the MSA is void because it conditions her periods of possession upon the payment of child support which is expressly against TX public policy. Further, M alleges that the final order must be set aside because its terms differ in several respects from the MSA and arbitration award. Initially, the COA agrees with M and acknowledges that orders conditioning possession on c/s payments are void and against public policy and further notes that even when parties consent to those terms in a contract, those terms are still void because parties are not permitted to contract in this manner. In addressing M’s issue, the COA presumes, but does not decide, that three c/s provisions she must comply with or risk reversion to step one possession all violate public policy. The COA holds however that even if these terms are void, this does not invalidate the entire MSA as M suggests if the terms can be severed and do not constitute the essential purpose of the agreement. The COA determines that these conditions were not essential and that nothing in the MSA indicates that there would be no agreement without them, noting that the MSA overall covered a broad spectrum of issues and was for the stated purpose of resolving all existing disputes. M did not request these terms to be severed in the trial court or the COA but wanted the entire MSA set aside. Determining that this was not required, the COA overruled the alleged error. As to her second issue, M claimed that the final order did not comply with MSA terms or arbitration rulings. The COA found that many claimed differences were not brought to the arbitrator’s attention by M and thus no rulings were obtained, waiving her right to arbitration. Further, as to several items that M claimed were different, the COA found that they were not “materially” different and/or did not alter the intent of the parties with respect to those matters as provided in the MSA. The COA also found no error when the final order was entered “by submission” versus after an oral hearing. Final order affirmed.

  1. In the Interest of D.D.A., 2020 Tex. App. LEXIS 3722 (Tex. App. – Dallas April 30, 2020) (Cause No. 05-18-01324-CV)

In suit #1, TX DFPs brought suit to terminate the rights of M and F. A jury terminated only F’s rights and a final order was signed. In suit #2, the child’s great aunt and uncle were named SMC to replace the Department in a final order signed 7/7/15. M was named PC and given two supervised visits per month with the child. The final order also provided that any other existing court ordered relationships with the child were terminated and parties claiming such a relationship were dismissed from the suit. Suit #3 was filed by the child’s paternal grandmother (PG) seeking to terminate M’s parental rights and adopt the child. (PG was never a party to Suite #2 and did not ever seek to intervene, choosing to file her own independent suit instead.) Suit #3 was pending at the same time as Suit #2. Initially Suit #3 was dismissed when the court found PG lacked standing, but this decision was reversed and remanded (2015 TAL 1150). On remand the trial court denied termination and adoption by PG, dismissing those claims but issued an order (also on 7/7/15) giving PG the right to a minimum of one supervised period of possession each month with the child. Two years later, PG filed a suit to modify the final order in Suit #2 and sought to be named SMC of the child. PG claimed standing under TFC 102.004(a)(1) (GP asserting child’s circumstances will significantly impair) and 156.002(a) (a party affected by the order). Great aunt and uncle filed a plea to the jurisdiction and challenged PG’s standing. The trial court agreed and dismissed PG’s suit. PG appealed. The COA examined standing under TFC 156.002(a) and determined that because PG had possessory rights to the child under the final order issued in Suit #3, this qualified her as someone affected by the trial court’s order in Suit #2. The COA acknowledged that although PG was not technically a “party” to the final order in Suite #2, the unique procedural circumstances of this case justified determining that PG had standing. The COA reasoned that when the two 7/7/15 orders were read together, it must be concluded that PG was a party affected by the order in Suit #2 sufficient to warrant standing to modify. Order granting plea to the jurisdiction reversed and case remanded for further proceedings.