INTERESTING CASES: September 4, 2019
Sallee S. Smyth
- In re Brice, 2019 Tex. App. LEXIS 6776 (Tex. App. – San Antonio August 7, 2019, orig. proceeding) (Cause No. 04-19-00334-CV)
M and F had two children and subsequently divorced. H remarried SM (step-mom) in 2014. F died in a car accident in January 2019. SM filed an original SAPCR seeking possession and access with F’s two children. SM claimed standing under TFC 102.003(a)(11) which confers standing on a person who has resided with a parent and child for at least 6 months ending not more than 90 days before suit is commenced and at the time suit is commenced the parent has died. (This statute is sometimes known as the “step-parent” standing statute although nothing in the statute requires that the person seeking standing be married to the parent they are living with.) SM claimed that since her marriage to F she had spent significant time with the children and attended their various activities, both with and without the presence of F. M filed a plea to the jurisdiction and challenged SM’s standing. At the hearing SM testified that the children had their own bedroom at her residence as well as their clothes, toys, bicycles, etc. She testified that F had possession on 1, 3 and 5 weekends after school and those were spent with F and SM. SM testified that she and F briefly separated in 2018 and F lived with his own mother and the children exercised visitation there but after F and SM reconciled in February 2018 the children resumed visitation at the home of F and SM until F died in January 2019. The trial court denied M’s plea to the jurisdiction and M sought mandamus relief. The COA notes that TFC 102.003(b) requires the trial court to consider the child’s principal residence during the six-month period to be evaluated under both TFC 102.003(a)(9) [actual care, control and possession for 6 months] and (a)(11) [person lives with a parent for 6 months and parent dies]. The COA cites to case law establishing that in determining principal residence the court must consider whether the child has a fixed place of abode with the party claiming standing, which is occupied consistently over a substantial period of time and which is permanent rather than temporary. SM argued that F’s residence with her was a fixed place of permanent abode which the children occupied consistently while visiting with F every other weekend. However, when asked where the children “lived” SM testified that they lived with their M. The COA concluded that SM was required to show that the children’s “principal residence” was with her and F for the requisite 6 month period of time and concluded that SM offered no evidence to carry that burden. As such, the COA concluded that SM had no standing and granted mandamus relief. COMMENT: In effect, this opinion holds that a person residing with the non-custodial parent can never achieve standing under TFC 102.003(a)(11) when the non-custodial parent dies. This is so because the opinion focuses on what is considered to be the “principal residence” of the child during the 6 month period required by TFC 102.003(b) and effectively determines that the residence of a non-custodial parent exercising consistent visitation over a substantial period of time is neither a primary residence nor a principal residence. I find this curious because the opinion cites to Doncer v. Dickerson, 81 S.W.3d 349 (a 2002 El Paso decision involving a step-mom seeking possession of her stepchildren after their father’s death) in which the El Paso COA determined that “principal residence” as used in TFC 102.003(b) is distinguishable from “primary residence” as considered in awarding exclusive rights to parents named as JMC under Chapter 153. In Doncer the El Paso court found that the step-mother married to the non-primary JMC father still had standing to seek possession of the children because the father and step-mother had possession of the children about 50% of the time under possession orders in that case. Here the COA did not delve into exactly how much possession F and SM had vs. mother but it sounds as if F was exercising possession under an SPO. Section (a)(11) only requires a person to “reside” with the parent and child for the required 6 month period before the parent dies but then Section (b) suggests that in evaluating the time period the court must consider the child’s “principal residence.” Under the San Antonio court’s interpretation, because SM’s evidence that the children consistently visited every other weekend for years at her permanent residence with F over many years did not establish proof that their home was the children’s principal or primary residence, SM had no standing. Under this rationale, a person residing with a non-primary or non-custodial parent can seemingly never secure standing upon that parent’s death. I don’t think this is what the Legislature intended and in light of the impact of this decision, perhaps it is time that the intended effect of TFC 102.003(b) when applied to standing claims brought under (a)(9) (11) or (12) be reevaluated.
- In re Lee, 2019 Tex. App. LEXIS 6790 (Tex. App. – San Antonio August 7, 2019, orig. proceeding) (mem. op.) (Cause No. 04-19-00440-CV)
M and F divorced in July 2018 and were named JMC of their three children. One child was severely disabled. M was s awarded the exclusive right to establish the children’s residence within a particular school district and F was obligated to move to that district by a date certain otherwise the geographical restriction would be lifted. F complied with this obligation. In March 2019 M filed a motion to modify alleging abuse and neglect by F and sought temporary orders naming her SMC and granting F only supervised access. At the hearing M asked the court to lift the geo restriction and allow her to move to Florida near family. The court granted M’s request and F sought mandamus relief. The COA notes that under TFC 156.006, temporary orders that change the designation of which parent has primary rights to choose domicile is not the only situation which requires elevated proof of significant impairment. The statute also requires such proof when a geographic restriction will initially be imposed or where the geo area is changed or where the restriction is lifted altogether. In this case, although M already had the primary right to choose domicile within a geographic area, the temporary orders lifted it and allowed relocation to Florida. Such orders were not allowed absent proof that they were necessary because the children’s present circumstances would significantly impair their physical and emotional development. The COA concluded that M’s evidence did not rise to this level and therefore the temporary orders violated the statute. Mandamus granted.
- In the Interest of A.R.W., 2019 Tex. App. LEXIS 7354 (Tex. App. – Dallas August 20, 2019) (mem. op.) (Cause No. 05-18-00201-CV)
M and F divorced in 2013 and neither part was ordered to pay c/s for the benefit of their daughter. In 2015 a modification order named the parties JMC, gave F primary rights, awarded M an expanded possession order and obligated F to pay M c/s of $1360 per month. The trial court determined the amount by calculating each parent’s c/s obligation under guidelines and then ordered F to pay the difference to M. The courts stated reasons for ordering F to pay c/s to M was to ensure that there were adequate resources in each home to support the child. In 2016 F filed a MTM and M filed a counter motion seeking primary custody. F filed an amended motion and sought orders for c/s in strict compliance with the guidelines, requesting that M pay him c/s and alleging that M was underemployed. After a 1 day trial the court left conservatorship orders in place and reduced F’s c/s obligation to M, ordering him to pay $700 per month. The court issued findings that a material and substantial change had occurred. The court calculated the reduced amount of support by determining F’s obligation ($1710) and subtracting M’s obligation ($910) and then reduced it by another $100 to account for F providing health insurance. F appealed. In essence, F argued that there was no basis for ordering him to pay c/s to M when he was the primary custodian. The COA observed that the trial court has authority to order either or both parents to pay child support in accordance with their duty to support their children and that one JMC could be ordered to pay c/s to another. F argued that M must be considered the child support “obligor” because he had primary rights to the child. The COA examined the c/s guidelines and determined that nothing in the Family Code establishes which parent must be treated as an “obligor” for child support purposes. F argued that M should be considered the presumptive obligator because the function of c/s is to help the custodial parent to maintain an adequate standard of living for the child. The COA stated that because M had possession of the child at least 7 days per month and 30 days in the summer, she too could be considered a “custodial parent” to some degree. Ultimately the COA determined that the child support guidelines are relevant in modification proceedings and that the court’s orders for F to pay c/s to M to provide adequate resources for the child at both residence was harmonious with the goal that c/s should assist the custodial parent to maintain an adequate standard of living for the child. Affirmed. COMMENT: I am fairly confident that this case is going to produce a significant number of requests for c/s by non-primary parents in situations where the primary parent is the higher wage earner between the two. In light of this decision, it would seem important to discover and develop facts about how the non-primary parent actually spends their existing resources on the child and how they spend their allotted time with the child so as to demonstrate whether c/s to the non-primary will really alter the standard of living for the child in that residence or whether it is only being sought to enhance the non-primary parents lifestyle. Interesting times!
- Woodward v. Woodward, 2019 Tex. App. LEXIS 7314 (Tex. App. – Houston [14th] August 20, 2019) (mem. op.) (Cause No. 14-18-00039-CV)
H and W executed two MSA’s in their divorce, one related to SAPCR issues and one related to property issues. The property MSA expressly awarded H $50,000 from W’s 401k plan. A prove-up occurred and the court made a docket notation of who appeared and stated that an MSA judgment was granted per In re Stephanie Lee and TFC 153.0071 and that a divorce was granted. Thereafter the trial court signed a final decree which awarded H $100,000 from the W’s 401k. The Decree further provided that it was based on an MSA which merged into the Decree and if there were conflicts in the provisions, the Decree controlled. Neither party filed post-judgment motions and the trial court’s plenary power expired. H then presented W with a QDRO assigning him $100K. W filed for a judgment nunc pro tunc. The trial court granted the motion and H appealed. H argues that the error was judicial not clerical and thus it was error to change the decree. The COA notes that a clerical error occurs when there is a mistake between the judgment actually rendered by the trial court and the judgment entered. Here the court’s docket entry established that judgment was granted on the MSA which provided H was to receive only $50,000. This docket entry was sufficient evidence of rendition. Further the COA determined that the merger clause does not establish judicial error preventing a nunc pro tunc. Affirmed.
- Gault v. Gault, 2019 Tex. App. LEXIS 7624 (Tex. App. – Corpus Christi August 26, 2019) (mem. op.) (Cause No. 13-18-00097-CV)
H and W marry in February 2017. W had been married twice before and H was a widower with six children. Six months after marriage H filed for divorce. He sought a TRO and temporary injunctions prohibiting W from contacting his children, one of whom was a daughter with special needs, and his father who was in a nursing home with dementia, and asked that she be enjoined from coming with 200 feet of his family. Both parties’ pleadings requested that W’s name be restored to Sanchez. The court granted injunctions which W violated repeatedly. She used her married name to contact H’s father and created many issues interfering with H’s ability to care for him. She would sit in front of the family at church. At trial, W stated she changed her mind about the name change and she wanted to retain her married name Gault. H put on testimony regarding the many injunction violations. The Court granted the divorce, granted the name change and issued permanent injunctions. W appealed. The COA found sufficient evidence to support the permanent injunctions. Regarding the name change however, the COA determined that the statutes within the TFC only speak to and authorize the granting of a name change to a party who is requesting that their own name be changed. The COA found that notwithstanding a sufficient factual basis to support the trial court’s ruling, H had no standing to ask that W’s maiden name be restored, and thus legally the COA was bound to reverse and render as the trial court’s ruling was an abuse of discretion.
- In the Interest of J.C., 2019 Tex. App. LEXIS 7763 (Tex. App. – Fort Worth August 27, 2019) (Cause No. 02-18-00029-CV)
H and W married in 2008. In fall 2009, W conceived a child. The child was born in July 2010. During the time that W conceived, she was having an affair with P. This affair lasted 4 years. H and W never separated and remain married today. H believed the child to be his at least until after the child turned 4. W told P he was the father during her pregnancy and continued to tell him that after the child’s birth. In 2011, P obtained DNA testing establishing that he was the biological father. He did not file an acknowledge of paternity and he did not initiate a suit to establish his parentage until 2015, after the child’s 4th birthday. From the beginning, H and W asserted the 4 years SOL within TFC 160.607, prohibiting an alleged father from seeking an adjudication of parentage after the child’s 4th birthday if the child has a presumed father. The two exceptions to the statute did not apply in this case. P argued that H and W should be barred from challenging his request based on estoppel theories. Shortly before trial, P amended his pleadings and asserted that TFC 160.607 was unconstitutional. Arguments to that effect were vaguely and simply made only during closing arguments and the trial court found the statute constitutional and dismissed P’s suit. P made more comprehensive constitutional arguments within a post-judgment motion, alleging that 160.607 violated his fundamental right as a natural parent to seek a relationship with his child and that the statute violated both federal and state constitutional rights and was subject to review under strict scrutiny standards. The trial court considered the arguments but maintained its position that TFC 160.607 was constitutional. P appealed. The COA determined that P did not preserve his state constitutional arguments, having not raised them in the trial court. As to his equal protection argument under the 14th amendment of the US Constitution, the COA first examined whether or not the statute at issue affected a fundamental right, defined as one that is “objectively, deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty such that neither liberty or justice would exist if they were sacrificed.” Analyzing P’s claim that a natural parent should have the right to pursue a parent child relationship with their child, the COA notes that TFC 160.607 does not prohibit P from doing that. It only prohibits him from doing that after the child turns 4 if the child has a presumed father. Because P had standing to bring an action at any time before the child turned 4, the COA determined that P had not proven he had a fundamental right to bring a suit beyond that date. Then the COA considered whether or not P’s arguments regarding equal protection implicated a suspect class, defined as persons saddled with disabilities or saddled with a history of unequal treatment such that they become powerless to obtain equal protection in the political process, noting examples based on gender, race, alienage and national origin. The COA found that P had not made any substantive arguments regarding the statute’s dissimilar treatment of alleged father and presumed fathers so as to create a suspect class. Having found that there was no fundamental right at stake and no suspect class, the COA determined that strict scrutiny was not the proper standard under which P’s constitutional challenge should be analyzed. Further, because P did not assert the more deferential standard of review, “rational basis,” the challenge was overruled and the judgment affirmed.
- Bolda v. Bolda, 2019 Tex. App. LEXIS 7828 (Tex. App. – Fort Worth August 28, 2019) (mem. op.) (Cause No. 02-18-00307-CV)
H filed for divorce from W in 2015. In May 2016 the parties entered into an MSA which expressly provided that is was not revocable and further that the parties were entitled to judgment and the MSA terms were enforceable as a contract. Within the MSA, H agreed to pay W spousal maintenance pursuant to Chapter 8, TFC, §8.051(2)(A), of $1600/month for 10 years. The final decree incorporated the MSA terms and provided that W was entitled to spousal maintenance under that section specified. Subsequently H filed an enforcement action against W for damage to certain property and received a judgment against W for $20,000. The judgement modified his spousal maintenance obligation for a period of time to achieve full credit for this judgment and then payments were ordered to resume at $1600/month. Thereafter, H brought a suit to modify his spousal maintenance obligation based on his claim that circumstances had changed regarding his health and his income and finances. At trial, the court considered evidence from both parties and determined that the evidence did not support changes which warranted modification and denied H relief. H appealed. The COA first determined that the MSA was a contract, expressly enforceable as a contract, and because the MSA did not mention, refer to or provide for future modification under TFC 8.057, the payments contained in the MSA were not spousal maintenance payments (even though it stated they were) but instead they were contractual alimony payments and were thus not subject to modification by the court. In the alternative, the COA further held that the evidence was legally and factually insufficient to support a modification under TFC 8.057 so that even if these payments could be construed as spousal maintenance, the trial court still did not err in denying modification. Judgment affirmed. COMMENT: So, how specific does your MSA have to be? This MSA specifically said that “H agrees to pay W spousal maintenance pursuant to Chapter 8 of the Texas Family Code section 8.051(2)(A) in the amount of $1600 per month for a period of 10 years with the first payment due on [9/1/16]. Payments will be the subject of wage withholding.” Apparently, according to the FW COA, a global reference to Chapter 8 does not capture all terms of Chapter 8, but only those sections that are specifically referenced within the MSA. If this interpretation is correct, then your further MSA’s better do two things. First, when your MSA recites that it is enforceable as a contract, you better make sure that you further provide “except as to the following terms” and then list out the terms that will not be subject to contractual enforcement. Second, when you provide for spousal maintenance in an MSA, be sure to specify that is it subject to modification if that is agreed upon by the parties and further specify any other provisions of Chapter 8 which will or will not apply. Absent further review of this decision, I guess H should now amend his tax returns to claim a deduction for contractual alimony paid to date and W should do likewise because she probably owes the IRS some money! Live and learn.