INTERESTING CASES: October 2, 2019

/INTERESTING CASES: October 2, 2019

INTERESTING CASES: October 2, 2019

INTERESTING CASES: October 2, 2019

Sallee S. Smyth

  1. In the Interest of A.M.H., 2019 Tex. App. LEXIS 8528 (Tex. App. – Houston [14th] September 17, 2019) (mem. op.) (Cause No. 14-17-00908-CV)

H and W met through a website called VietSingle in 2005.  H was 35 and W was 24.  W only had a 10th grade education but owned two businesses and was the breadwinner for her family.  H lived in TX and W lived in Vietnam.  They communicated by phone regularly.  A routine topic of conversation was H’s desire to have a prenuptial agreement to protect his assets as he had been married previously.  H traveled to Vietnam and met W in person 2007.  After his return to TX they continued to talk daily and the requirement of a prenuptial agreement was continually discussed.  H traveled to Vietnam again in 2007 to become engaged.  He presented W with a prenuptial agreement drafted by his attorney.  W had the agreement translated into Vietnamese because she did not speak or read English.  She requested one change to the document but it was not changed at that time.  H returned to TX and his attorney prepared a fiancé Visa application for W.  She arrived in the US in June 2008.  In August 2008 she informed H that she was pregnant.  H advised her that he still would not marry her without the prenuptial.  W requested deletion of a paragraph in the prenuptial making earning after marriage separate property and H made the change.  H located a Vietnamese speaking attorney in the phone book and made an appointment for consultation with the W.  H paid the attorney $100 for the consult and H did not participate.  The consultation lasted between 1 and 2 hours.  After the consultation the parties signed the prenup.  H and W married about 5 days later.  H’s attorney assisted W with changing her fiancé Visa to a permanent residence Visa.  As part of that process H signed an I-864 Affidavit, sponsoring W’s permanent residence and vowing to support W until circumstances by law terminated that obligation.  W obtained her green card some time later and several years after that became a US citizen.  H and W had two children during the marriage.  W filed for divorce in 2015 and H filed a counter petition.  The parties signed an MSA regarding conservatorship and support.  W challenged enforceability of the prenuptial agreement in a bench trial.  W claimed that she did not execute the agreement voluntarily and that it was unconscionable when signed.  She further alleged that the prenuptial violated federal law and the Texas Constitution.  The trial court upheld the prenuptial agreement and divided the community estate.  W appealed.  On appeal the COA first examined W’s unconscionability claim which alleged that H knew W would have to return to Vietnam if he did not marry her and because she was pregnant she would be subjected to shame and ridicule, her child would rarely see its father, the child would have a better life in TX, she had no bargaining power, the $100 consultation with counsel was just window dressing and they only met for 2 hour, the agreement was too one-sided and the agreement did not disclose all of H’s property.  Examining these claims the COA found that although W was pregnant and facing deportation without the marriage, the prenuptial agreement was not a surprise to her and that she had known it was a condition of marriage for more than a year.  She did not offer evidence that she and the child would be at risk of danger if they had to return to Vietnam.  Further both she and her lawyer testified that W understood the prenuptial agreement.  There was further no evidence that W was not aware of H’s estate before executing the document as H claimed he advised her about his properties and she asked questions about them.  He also stated that they were disclosed in the fiancé Visa application he sent to her in Vietnam before the agreement was signed.  The COA found that even if there had been a lack of disclosure, this would not alter their analysis because it forms the second prong of the inquiry, only after the prenup has been declared unconscionable.  Recognizing the strong presumption in favor of upholding prenups, the COA determined that nothing suggested the agreement was unconscionable.  The COA likewise rejected W’s claim that the agreement was not signed voluntarily.  She claimed her lawyer did not have sufficient time to review the agreement, but both she and her lawyer testified she understood it and further she did not claim that her attorney gave her incompetent legal advice.  She seemed to suggest she signed the document under duress which was pregnancy and her imminent deportation but the COA notes that duress in connection with a contract must be accompanied by a threat to do something a party has no legal right to do, acknowledging that H had no legal obligation to marry W.  W further claimed that the prenup violated federal immigration law because it was contrary to the I-834 Affidavit of support that H signed.  The COA notes that H’s obligation to support W terminated when W became a US citizen and there was no evidence that H had ever failed to support W at any time.  W’s Texas constitutional argument and her complaints about the division of property were not adequately briefed.  W’s arguments about the exclusion of expert witness testimony were all unfounded.  Judgment of trial court affirmed.

  1. In re M.B., 2019 Tex. App. LEXIS 8496 (Tex. App. – Dallas September 19, 2019, orig. proceeding) (mem. op.) (Cause No. 05-19-00971-CV; Cause No. 05-19-00973-CV)

CPS removed the child from her mother and father at age 3 and placed her with Foster Parents (FP).  The child remained with FP for 13 months before return to her parents.  She remained with her parents for 5 months before removal again and return to FP.  At a permanency hearing 10 months later, FP became concerned about further concerns and the next day filed a petition in intervention in the CPS suit.  A month later they filed an original SAPCR and asserted standing under TFC 102.003(a)(12) which confers standing on a foster parent to bring suit if a child has been placed with them for not less than 12 months ending not more than 90 days from the date suit is filed.  TFC 102.003(b) further provides that in computing the time requirements for (a)(12) standing the court may not require that it be continuous or uninterrupted.  Within the original SAPCR, FP made a written demand for jury and paid the required fee.  The Department and the mother challenged FP’s standing but later withdrew their motions.  The Department filed a motion to consolidate the CPS case and the original SAPCR, citing to common questions of law and fact.  FP opposed consolidation, however argued that if granted, the court should allow a jury trial.  The trial court granted consolidation but denied a jury, citing that the request was not timely in the CPS case and further it was concerned about FP’s strategy to file a SAPCR with the same claims as the intervention in order to secure a jury.  FP filed for mandamus relief.  The COA first addressed standing since it had been raised in the trial court.  The COA found that FP had possession of the child for 13 months during the first placement and 10 months during the second placement, interrupted by 5 months when the child was returned to her parents.  At the trial court level, the Department’s abandoned motion had argued that the 12 month possession  should not be counted and at the time of the intervention they had only had the child for 10 months.  The COA held that TFC 102.003(b) expressly states that the FP’s possession need not be uninterrupted or continuous and at the time of the intervention, FP had been in possession of the child for 23 months and the 5 month interruption did not frustrate standing.  AS to consolidation, the COA determined that with common question of law and fact it was property to try the cases together.  As to the denial of a jury however, the COA found that the jury demand filed by FP was timely and could not be denied.  Although jury demands made at least 30 days prior to trial are considered timely, in the CPS case the scheduling order required the demand 60 days before trial.  The COA determined that at the consolidation hearing on August 2, 2019 (which was the date the CPS case was set for final trial), the trial court reset trial to September 30, 2019.  This reset in effect made the jury demand filed in the SAPCR case on July 25, 2019, timely as it was filed more than 60 days prior to the 9/30/19 trial.  Further the Department offered no evidence as to how they would be injured by a jury trial and the trial court had stated on the record that it could handle a jury on the trial date without interrupting its docket.  Mandamus denied as to consolidate but granted as to FP’s request for a jury.

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