INTERESTING CASES: October 7, 2020

Sallee S. Smyth

  1. In re 2020 Tex. App. LEXIS 7126 (Tex. App. – Waco September 2, 2020,

orig. proceeding) (mem. op.) (Cause No. 10-20-00067-CV)

In January 2019, F filed an original SAPCR seeking adjudication of his paternity of MSJ and requesting appointment as the child’s SMC, asserting that the child’s biological mother was deceased. In February, the Pierces, the child’s maternal great aunt and uncle, filed a counter petition seeking SMC and alleged standing under TFC 102.004. Days later, Tortorelli, another maternal great aunt, filed a petition in intervention, claiming standing under TFC 102.004(b), seeking SMC. The child actually lived with Tortorelli. The Pierces and Tortorelli sought genetic testing which was granted. Thereafter, F filed a plea to the jurisdiction asserting that the Pierces and Tortorelli had no standing because they were not related to the child within the 3rd decree of consanguinity. Several months later, counsel for the Pierces and Tortorelli filed an intervention on behalf of Dezelle, the child’s maternal aunt (not great). F filed for a writ of habeas corpus claiming the child should be immediately surrendered to him as the F. The trial court denied his request. F filed a motion to strike Dezelle’s intervention because she could not establish “past substantial contact” as required by the statute. Thereafter testing established F as F and the court signed an order adjudicating him as such in November. In December the trial court issued temporary orders allowing the child to remain with Tortorelli. F filed a second request for habeas corpus after his adjudication. The trial court denied the writ of HC and denied F’s pleas to the jurisdiction. The trial court appointed the Pierces, Tortorelli and Dezelle as managing conservators, giving Tortorelli the right to designate the child’s residence. F sought mandamus relief challenging the denial of his HC requests and his plea to the jurisdiction. As to HC relief, the COA determined that when F filed his first HC request, he was not yet a father. Under TFC 157.376(b) the trial court was prohibited from using an HC proceeding to adjudicate possession between non-parents. Thus the trial court was correct in denying the first HC request. As to the second HC request, filed after adjudication, the COA found that because a SAPCR was then pending, the court was authorized to deny the return of the child to a parent and issue temporary orders if necessary to protect the child. Based on evidence demonstrating F’s propensity for violence, the COA determined that the trial court was justified in denying HC request #2. As to the pleas to the jurisdiction however, the COA found that the Pierces did not have standing to file an original SAPCR since they were not related within the 3rd degree of consanguinity. The COA further found that Dezelle did not have standing to intervene under TFC 102.004(b) because she did not offer sufficient evidence establishing her past substantial contact with the child. As to Tortorelli, the COA found that she had substantial contact with the child and thus she had proper standing to intervene. The COA denied mandamus as to the habeas corpus ruling and as to Tortorelli’s standing, but granted mandamus as to standing for Pierce and Dezelle, finding that pleas to the jurisdiction for those parties should have been granted.

  1. In the Interest of C.E.A.Q., 2020 Tex. App. LEXIS 7150 (Tex. App. – Beaumont September 3, 2020) (mem. op.) (Cause No. 09-19-00037-CV)

In 2009 the trial court issued an order adjudicating MTQ as F of the child and ordering him to pay $385/month in child support and granting a judgment for retroactive c/s in the amount of $6800. In 2014 F sought and obtained a modified possession order. In 2018 F filed several documents asserting challenging the amount of his c/s based on his receipt of disability benefits both as a veteran and from social security. F sought to challenge TFC 154.062 as unconstitutional when applied to him. The OAG filed a motion to modify F’s support. F filed an answer and asserted a variety of defenses challenging the trial court’s right to consider his disability benefits. The OAG argued that federal law did not preempt the state court’s right to proceed and determine F’s child support. After a bench trial the court increased F’s child support. F filed a MNT arguing his c/s was not calculated correctly. The MNT was granted. At the second proceeding, F maintained all of his objections to the court’s authority over his benefits as relevant to child support. The trial court overruled these objections and issued an order increasing F’s c/s to $434/month and finding arrearages of $5700. F appealed, asserting 17 issues. In addressing F’s preemption issues, the COA first determines that under Rose v. Rose, 481 U.S. 619 (1987) the US Supreme Court has held that federal law does not prohibit a state court from determining a veteran’s child support obligation. Further, examining federal statues under USFSPA (Uniformed Services Former Spouses Protection Act), CSEA (Child Support

Obligations Enforcement Act), 38 USCA 5301 (non-assignability of benefits) and VAAS (Veteran’s Administration Apportionment Statute), the COA determines that nothing within these statutes indicate that Congress expressly or impliedly intended to preempt the ability of state courts from considering veterans benefits in calculating the net resources of a parent. F also alleged that the trial court erred in not waiting 45 days under TGC402.010(b) before issuing a ruling when the constitutionality of a statute had been challenged. The COA found that the Government Code statute only requires the court to wait the required 45 days before issuing an order that declares a statute unconstitutional, not an order that declines to do so. Finally, as to all other issues asserted by F, the COA found them waived for improper briefing. Judgment affirmed.

  1. In the Interest of B.Y., 2020 Tex. App. LEXIS 7155 (Tex. App. – Beaumont September 3, 2020) (mem. op.) (Cause No. 09-19-00255-CV)

M and F divorced in April 2017 and had one child born in 2000. The child, BY, was almost 17 years old at the time of divorce and would turn 18 in April 2018 while a senior in high school. F was ordered to pay $1500/month in child support with such support to continued after the child’s 18th birthday if enrolled in an accredited program leading to a high school diploma under TEC Chapter 25. In September 2018, after child turned 18, F filed a motion to terminate his c/s withholding, alleging that the child was not enrolled in accordance with Chp. 25 of the Education Code because he received no credits for his senior year, skipping school and failing all courses. M argued in defense that the child was never “unenrolled,” that he required accommodations and that she placed him in an on-line school for the fall 2018 which allowed him to proceed at his own pace. M further filed a motion to increase support and claimed the child had a disability and was entitled to continued support. At trial the court considered evidence that the child was often absent or tardy, received numerous suspensions and received no credits for his senior year in high school and further he was not performing in the current on-line courses. Under TEC 25.092(a), a student may not receive a final grade unless they attend 90% of the classes offered. Based on the evidence considered, the trial court determined that while “enrolled” the child was not in compliance with Chapter 25 guidelines and thus under the terms of the decree, child support terminated on the child’s 18th birthday. The COA affirmed this finding. The COA also found that there was no evidence indicating that the child’s disability prevented the child from supporting himself and evidence suggested he held various jobs so the trial court did not abuse its discretion in denying M’s request to continued child support for an adult disabled child.

  1. In re Smith, 2020 Tex. App. LEXIS 7184 (Tex. App. – Houston [1st] September 3, 2020) (mem. op.) (Cause No. 01-19-00014-CV)

When alleged W (AW) died, alleged H (AH) brought a claim of common law marriage and sought support from her estate as well as a challenge to the Last Will and Testament that her heirs sought have probated, with AH offering a subsequent Will he claimed to be valid and enforceable. AW had been married previously and had inherited a $30MM estate from her late husband. At AH’s request, a separate, expedited jury trial was held on the question of AH’s common law marriage claim. Although AH did not issue TRCP 194 Requests for Disclosures, AW’s heirs nevertheless served disclosure responses on AH, identifying an expert witness, Masson, who would offer her opinions that AW’s signatures on various documents, including the Will AH offered for probate, were forgeries as well as her opinion that AH is the one who forged them. The voluntary disclosure identified Masson’s name and contact information, the subject matter of her opinions and stated that her CV and documents she reviewed were available upon request. AH filed a pretrial motion in limine and the resulting order included a limine which precluded the discussion of any document or its contents that had not been provided in response to a request for production or a Rule 194 disclosure before first approaching the bench. After this order was signed, AH filed a motion to exclude Masson’s testimony, claiming that the heirs had not provided documents relied upon by the expert The heirs responded that they were not required to provide anything because no Rule 194 Disclosure request had ever been made, but noted that the documents were made available and the expert could have been deposed but AH never sought review or deposition. The trial court agreed and denied AH’s motion to exclude. The jury found no common law marriage and the trial court severed this issue from the will- contest proceeding, creating a final judgment which AH appealed. Examining the 194 Disclosure issue, the COA found that because AH never served a Rule 194 request upon the heirs and further because the heirs were not seeking any affirmative relief, the heirs were never required to provide information as to an expert witness they planned to use at trial. (See TRCP 194.3 and 195.2) As such, AH could not rely upon the rules for exclusion of witnesses not properly disclosed when disclosure was never required. The COA further held that even so, the heirs did provide all of the information which would have otherwise been required to be disclosed and documents were made available to AH prior to trial. AH’s issues concerning the improper admission of expert testimony under these circumstances were overruled. AH’s sufficiency arguments regarding the denial of a common law marriage were likewise overruled and judgment denying the marriage was affirmed.

  1. In the Interest of C.E.H., 2020 Tex. App. LEXIS 7701 (Tex. App. – Beaumont September 24, 2020) (mem. op.) (Cause No. 09-19-00120-CV)

M and F, in a dating relationship, had a child. At some point the parties agreed that F would move to Harris County with the child. M paid child support. These arrangements were done without a court order. In 2018 M filed a SAPCR and sought primary conservatorship, child support and medical support. F appeared pro se at a temporary orders hearing and the parties were named temporary JMC, M as primary and F was ordered to pay support. The case was set for final trial. M appeared with counsel and F appeared pro se. The parties announced they had reached an agreement. M testified that she and F would be appointed JMC, she would be named primary, F would pay “guideline child support” and reimburse her for insurance premiums and F would have an SPO. F testified that his was his agreement. The trial court accepted the agreement and rendered judgment and then set an entry date for the final order. Thereafter F hired counsel who filed answer to M’s suit and a counter petition. F’s attorney objected to entry of the final order stating that it was no longer F’s agreement, that he did not agree to designate M as primary or to an SPO. Further the attorney stated that F did not agree with the calculation of guideline child support. The trial court eventually signed the order proffered by M containing terms in line with the parties’ agreement and F appealed. Initially the COA determined that F had no right to unilaterally revoke his Rule 11 Agreement once the trial court made a present rendition of its judgment. F argued that the order did not comply with the agreement in several respects including (1) failing to provide for guideline child support and having no evidence to make any calculation; (2) obligating him to surrender the child at Ms’ residence at the end of his possession and (3) giving M the exclusive right to enroll the child in school. The COA agreed that there was no evidence to support the child support award. The record only reflected that the parties agreed to “guideline child support” but they disagreed as to the calculation. Without evidence supporting the amount included in the order, the trial court abused its discretion if there was no agreement. Regarding the visitation drop off terms the COA found that the requirement in an SPO for the non-possessory parent to drop off at the residence of the possessory parent only applies in situation where they lived in the same county at the time of the order and since then one has relocated. In this case, the court should have designated surrender at F’s residence at the end of his periods and by no doing so, deviated from the parties’ agreement to an SPO. Finally, the COA found that while normally where the child goes to school goes hand in hand with the right to designate the child’s primary residence, this does not necessarily extend to the right to enroll the child in school. Because there was no evidence of an agreement that M should have this exclusive right, the final order did not strictly comply with the Rule 11. Reversed with respect to child support terms, place of surrender under SPO and right to enroll the child in school. All other orders affirmed. COMMENT: Lesson learned. If you are going to recite a Rule 11 Agreement into the record you better make sure that you are specific as to all key terms. As this case demonstrates, using broad terms such as “guideline child support” and “SPO” will not cover all the specifics if even the slightest of technical details are not fully considered.

  1. In the Interest of J.M.H., 2020 Tex. App. LEXIS 7753 (Tex. App. – Eastland September 25, 2020) (mem. op.) (11-19-00061-CV)

The parties divorced in 2015 and M was named primary JMC of the parties then two-year old daughter. The decree contained a modified possession order which upgraded to an SPO when the child turned 5. The parties had an acrimonious relationship and had differences over the child’s participation in “stock” shows with F because many of them occurred on M’s weekends. During the first extended summer possession after the child turned 5 she became homesick and F returned her early. M took the child to local clinic after observing bruises on her inner thighs and complaints about burning urination. M told the clinic PA that the child may have been touched inappropriately and the PA recommended that M take the child to a hospital for possible child abuse screening. M did so and the child went through a complete SANE exam. The allegations of abuse against F and an older half-sibling of the child were ruled out. Further the abuse allegations were investigated by the Sheriff’s department. After these allegations, F filed a motion to modify seeking primary conservatorship. He relied on the allegations of false abuse as well as M’s frequent moves to support a material and substantial change as well as the presence of M’s boyfriend who stayed overnight while the child was present. The case was tried to a jury which found a material and substantial change and named F as primary JMC. M appealed, challenging the sufficiency of the evidence to warrant modification and further claiming the existence of incurable jury argument. As to the sufficiency complaint, the COA acknowledged that a parent’s efforts to interfere with a child’s relationship with the other parent can constitute a material and substantial change. Here the COA felt that it was up to the jury to resolve issues concerning the M’s allegations and motives for making them. Although M denied accusing F of the abuse, F testified that the sheriff told him this was the case. These were issues for the jury to determine. The COA found the evidence to be sufficient. As to M’s claims of incurable jury argument, she identified arguments made by F’s counsel regarding the procedures likely followed during the child’s SANE exam. F’s counsel spoke about the nature of the exam as requiring penetration of the child’s vagina and anus and argued that it was M who put the child through this process. It was conceded that M was not present during the exam and details of what occurred during the exam were not in evidence. However the child had discussed her discomfort with the F and the COA determined that one could deduce certain matters about the exam with the specific evidence. Further the COA noted that M did not object to the jury arguments at the time and the trial court could have stopped them if she had. Even so, some arguments are so prejudicial that objection at the time to preserve error is not necessary. These typically involve racial prejudice or unsupported personal attacks on parties, counsel or witnesses. The COA found that the arguments in this case were not extreme and did not amount to error. F filed two cross-points on appeal. In his first point F complained that he was not allowed to present additional evidence after the jury trial on matters that only the court would decide. The record reflected that the court was aware of and planned to hear this additional evidence but after the jury returned a quick verdict, the additional evidence was simply not heard. Further post-verdict motions requesting the opportunity to present evidence of post­verdict conduct were filed but never heard before a judgment was entered. F did not file a motion for new trial arguing that additional evidence needed to be presented. All in all the COA found that F failed to preserve his complaints about the additional evidence. In his second cross point F alleged insufficiency to support several items in the order however the COA found that the evidence offered during the jury trial were sufficient to support the final order terms he complained about. Judgment affirmed.

  1. In re A.T.E., 2020 Tex. App. LEXIS 7804 (Tex. App. – Houston [1st] September 29, 2020) (mem. op.) (01-19-00481-CV)

M filed a SAPCR to address conservatorship and possession of the parties child after a series of incidents involving F’s alcohol abuse which ended with a DUI in 2012. She requested SMC and supervised access. F returned to his home country of Canada and M was granted a default judgment giving F supervised access and injunctions which prohibited his consumption of alcohol before and during possession. The parties subsequently divorced under an Agreed Decree which incorporated the terms of the prior SAPCR order. Over the next 3 years, F traveled to TX to see the child. He asked for unsupervised access but M refused. During that time, both parties remarried. In 2016 F filed a motion to modify, asking for JMC, unsupervised visits, terms allowing him to consume alcohol before and during visits and permit him to travel internationally with the child. At trial, M, F and F’s new wife testified. M offered evidence from social media which showed that alcohol continued to play a big role in F’s life. F further admitted that he continued to drink (stating he only got drunk about once a week instead of the approximate three times before the divorce) F testified that he desired a better relationship with his daughter. The court modified the order to permit unsupervised visits that stair-stepped eventually to orders that would allow him to travel internationally with the child. The trial court retained the alcohol injunctions. M appealed, arguing that there was no evidence of a material and substantial change. The COA noted that when a party seek a modification, the evidence of material and substantial change must “connect to” the terms of the order that they seek to modify. The COA offered the example that while a remarriage may support changes in certain terms of an order, this does not give the court carte blanche to change other terms in the order which are unrelated to the remarriage. Here the COA found that F’s continued use of alcohol worked against proof of a material and substantial change justifying unsupervised access since it was F’s alcohol use that warranted the supervised terms to begin with. Further, F’s remarriage was not a change that affected the visitation terms. The COA further noted that a child’s “aging” is not in an of itself a material and substantial change because it is contemplated. Likewise, the COA found that a parent’s desire for a fuller relationship with the child and F’s desire for an opportunity to travel with her internationally (now that he worked in Saudi Arabia for extended periods) was insufficient to support such a change. Ultimately the COA found that a custody order is res judicata as to the best interest of the child at the time it is entered. To the extent that F did not produce evidence of a material and substantial change since the prior order, the COA found that modification was not warranted and the existing orders remained in the child’s best interest. Reversed and remanded.