Sallee S. Smyth

  1. Hinojosa v. Lafredo, 2021 Tex. App. LEXIS 4309 (Tex. App. – Dallas June 3, 2021) (mem. op.) (Case No. 05-18-01543-CV) replacing Opinion issued on December 31, 2020 found at 2020 Tex. App. LEXIS 10475 (reported in January 2021 Interesting Cases)

H and L, both men, met in NY City in 1997 and began a romantic relationship. H moved in with L in 1999 and they agreed to split monthly expenses. The couple spent Christmas with friends in the Catskills mountains. L gave H a Christmas card which included a note asking “Will you MARRY (commit) ME IN 2000? PLEASE!!! With all our friends and family in attendance.” H believed this to be a marriage proposal while L considered it only to be a commitment as partners since same sex marriages were not authorized. The couple planned a commitment ceremony in Italy in October 2000 and invited 40+ friends to join them for a week at a Tuscan villa. A friend, Ariel, presided over a ceremony that include vows and promises, an exchange of rings, a pronouncement as life partners and a reception with a cake. Neither H or L knew if Ariel was ordained or legally authorized to perform a marriage ceremony. After the ceremony the couple returned to NY and lived together until 2005 when L’s job transferred him to Dallas. H joined L in Dallas where they purchased a house together and later a condo. Both purchases identified the men as “single.” The couple maintained separate bank accounts and filed separate tax returns as single individuals. L accepted a new job in Houston in 2014 and because the couple had been having relationship troubles, he told H he did not want him to join him. H filed for a divorce in August 2015, claiming a formal marriage as of October 2000 or alternatively an informal marriage as of March 2005. Trial was to a jury on the issue of marriage, which L denied. Witnesses for H testified that they considered the couple as married although admitted that they had never heard L refer to H as a spouse. Witnesses for L testified that they did not believe the couple was married. L testified that he considered H only his partner and not his spouse and that the parties went out of their way to leave the word God or marriage out of their ceremony. L testified he was not sure he would have proposed marriage in 1999 if it had been legal. Question 1 of the jury charge asked if the couple were informally married and defined the elements of a common law marriage. Question 2 asked what date they were married, if the answer to Question 1 was yes. The jury was instructed that prior to June 26, 2015 marriage between a same sex couple was not recognized in Texas, but the instruction did not specify the significance of the date. H’s counsel objected to the charge and the June 26, 2015 instruction. H requested a submission asking whether or not H and L were married on October 26, 2000 (the date of the Italian ceremony). The jury sent out a question as to whether or not the US Supreme Court decision in Obergefell gave retroactive effect to an informal marriage entered into prior to June 26, 2015. The court responded that they jury had all the information it needed to answer the questions posed. The jury returned a verdict finding that no informal marriage existed and that H take nothing from his suit for divorce. H appealed. In two issues, H claimed the court erred in its charge to the jury. First, H claimed the court failed to submit a question as to whether or not the parties were married on October 26, 2000. The COA found that it was not error to refuse H’s submission on a formal marriage because the question as posed was not proper. TRCP 278 only requires the court to submit question when they include substantially correct wording. Questions are not substantially correct if they contain words which require definitions but those definitions are not included. H’s submission did not include the requisites of a marriage (whether in TX or in Italy) as of October 2000, such as valid license, timeliness of ceremony and qualified officient. Because H’s submission was not correct, the trial court was not obligated to tender the submission to the jury. H also complained about error in the charge as submitted, stating that the instruction as to the legality of same sex marriage before June 26, 2015 was confusing and probably caused the rendition of an improper verdict, citing the questions raised by the jury. However, the COA pointed out that neither party objected to the answer provided to the jury and neither asked for additional instructions at that time. Further, the COA found that H failed to preserve this error since the objections he raised on appeal were not identical to the objections he raised at trial, a fundamental rule for preserving charge error. Judgment affirmed.

  1. In the Interest of2021 Tex. LEXIS 446 (Tex. Sup. Court June 4, 2021)

(Case No. 20-0175)

The TDFPS took custody of two children and placed them with a maternal aunt and uncle after an incident where the police were called to a motel where M was prostituting herself while her children were present in separate hotel room with her boyfriend. As if that loaded sentence does not contain enough bad behavior, M was unwilling to perform certain demands by her “client” so her boyfriend came into the room with a gun and took the “client’s” clothing hostage. Although the “client” decided not to press charges, the police found drugs and drug paraphernalia in the rooms occupied by M and the children. The boyfriend claimed the drugs were his and the Mother admitted the unregistered firearm was hers but she had no intention of robbing her “client.” M advised that she was from Florida and had been living in the hotel for several months. Needless to say the children remained with the aunt and uncle while the investigation was ongoing. TDFPS attempted to get M’s cooperation in services but she refused to comply. They filed suit seeking managing conservatorship and requested that if reunification could not be achieved that M’s rights be terminated. The court issued an ex parte order of conservatorship, appointed counsel for mother and a GAL for the children. M was later served by publication because she could not otherwise be found. M did not comply with any of her service plan requirements or reach out to TDFPS regarding visiting her children for 9 months. Meanwhile, in the aunt and uncle’s care, the children were attending school for the first time in two years, attending therapy regularly and showing improvement in their physical and emotional development. At final trial the case worker recommended against termination because the children were very bonded to M. The case worker testified that she was opposed to once per month supervised visits at a facility because M had been erratic in showing up for visits, had been hysterical during phone calls and had maintained her drug use. The worker stated that having the children wait in a lobby, excited to see M when she did not show was an emotional concern and not in their best interest. The GAL and CASA worker both recommended termination although the GAL advised that he would not be opposed to some possession by M after completion of “a lot of services.” M offered no evidence at all. Ultimately the court appointed aunt and uncle as permanent managing conservators. The court awarded M possession “at times mutually agreed to in advance by the parties.” In the absence of mutual agreement the court order provided that M could have supervised visitation upon 48 hours notice but only under terms conditions agreed to in advance in the sole discretion of the managing conservator. M appealed arguing insufficient evidence, claiming the order was void for vagueness and challenging the constitutionality of TFC 262.201 (o) (allowing ex parte temporary orders when citation on a parent is by publication whether or not publication has occurred). The COA affirmed, determining that specific possession orders were not in the children’s best interest, providing good cause to deviate from an SPO. M filed a petition for review alleging abuse of discretion in awarding unspecified possession at the sole discretion of the managing conservators and reasserting the constitutional challenge. The Sup. Ct. analyzes the question of whether and under what circumstances a court may be permitted to order that a parent’s access to their child may be at the sole discretion of the managing conservator. Initially the court recognizes that when specific orders for possession are not in a child’s best interest, good cause excuses the court from issuing such orders. TFC 153.006(c). As such, in extreme cases supported by sufficient evidence, a trial court may issue a visitation order for possession solely at the discretion of the MC, noting that court is bound by TFC 153.193 which provides that any restrictions and limitations may not exceed those necessary to protect the best interest of the children. The Sup. Ct. holds that when these two statutes are read in conjunction with one another, the permit an “as agreed” visitation order such as the one issued in this case, which was likewise supported by sufficient evidence. M argued that this amounted to a complete denial of access and in that case, termination should have been required. However, the Sup. Ct. found that this “either or” argument would place trial courts in difficult positions if termination were required when immediate possession was inappropriate but the potential for future improved situations existed. M further argued that the possession order was wholly unenforceable and thus error. However, the Sup. Ct. found that since a non-specific order was allowed, its lack of specificity would only be erroneous if the order failed to make the requisite findings of good cause and best interest. The Sup. Ct. noted that if M attempted possession but was unable to secure the MC’s agreement, M was always in a position to seek modification. The Sup. Ct. found M’s constitutional challenge moot since the temporary ex parte order was now replaced by a final order after trial on the merits.

  1. In the Interest of R.D.E.,2021 Tex. App. LEXIS 4614 (Tex. App. – Corpus Christi June 10, 2021) (Case No. 13-20-00275-CV)

M and F divorce in 2016 and F is obligated to pay child support. In 2018 F filed a suit to modify alleging a material and substantial change and requesting his c/s be set per the guidelines. OAG intervened claiming F was in arrears and sought confirmation. The OAG acknowledged that at some point F began receiving SS disability benefits each month and further that M had received a one-time lump sum payment of $7,850 from SS for the benefit of the children. The OAG conceded that F should be credited for the lump sum payment against his arrearages. F argued that the balance of the lump sum payment should be credited towards his future c/s obligation and the OAG disagreed that this was not the law. The trial court agreed with F and applied almost $7,000 of the lump sum payment towards F’s future c/s obligations and the OAG appealed. The COA recognized that TFC 154.132 provides that monthly SS disability benefits must be taken into account when computing c/s such that when the c/s amount is determined the court must then subtract the amount of benefits being paid for the benefit of the child. Further, TFC 157.009 clearly allows for lump-sum benefits to be applied to arrearages. The COA construes TFC 154.132 as neither explicitly or implicitly limiting “credits” only to monthly disability payments. The COA holds that because the statue applies “all benefits paid to or for the child as a result of the obligor’s disability,” this would include lump sum payments and if there is no arrearage owing (or some owing but a balance remains after proper credit) then that amount should be applied to future c/s obligations. Judgment of the trial court is affirmed.

  1. Umana v. Rodriguez-Ramos, 2021 Tex. App. LEXIS 4928 (Tex. App. – Dallas June 21, 2021) (mem. op.) (Case No. 05-20-238-CV)

W sued H for divorce, alleging a common-law marriage which she claimed began in June 2016. She further requested the court to quiet title to a residence in Dallas and to declare her a part owner of the property and to divide it. In response, H filed a please to the jurisdiction and motion to dismiss, challenging W’s standing to bring suit and asserting that there was and could be no CL marriage because he was currently still marriage to another. H also asked the court to expunge a lis pendens that W had placed on the Dallas residence. W filed a response which included an affidavit stating that she sold property in Guatemala and provided $37,000 to her brother to exchange for US currency to buy the Dallas residence and that the property was always meant to be hers. She alleged that her brother purchased the residence but it was then foreclosed. Thereafter, H purchased the residence at foreclosure while he and W were living there. W amended her pleadings and asserted alternative claim alleging the parties entered into a joint venture to purchase the residence and asserting other claims such as unjust enrichment and quantum meruit. H issued a notice of hearing on his plea to the jurisdiction and motion to dismiss as well as to expunge the lis pendens. Before the hearing began the court conversed with counsel regarding who would go first and it was ultimately decided that W would proceed to offer evidence supporting her common law marriage claim, the result of which would drive the remaining issues. W testified that she knew H was married when they began living together but that he was going through a divorce and they planned to marry afterward. At different times during the hearing she stated she was married while at other times stated she was not. Several documents regarding the Dallas property were admitted during the hearing which supported the sale of property in Guatemala, the transfer of funds from W to her brother, brother’s purchase and subsequent foreclosure which was not his fault, brother suit of original seller and recovery of $150K in damages, and H’s purchase of residence in foreclosure. W’s name never appeared as an owner on any documents. At the conclusion of the hearing, the court found that W had not made a prima facie showing of a CL marriage, granted the plea to the jurisdiction and dismissed the suit in its entirety. The court subsequently signed a final order disposing of all claims in W’s live pleading. W appealed. First, W challenged H’s use of a plea to the jurisdiction as the procedural device to address her CL marriage claim and claiming the court abused its discretion for holding an evidentiary hearing on the merits of that claim. The COA noted that pleas to the jurisdiction can be decided on the pleadings or through an evidentiary hearing regarding disputed jurisdictional facts. Here, the standards for deciding the plea mirrored those for a SJ, placing the initial burden on H to suggest that there was no jurisdiction over W’s claims (i.e. there could be no CL marriage because he was not yet divorced from his existing wife, thus no jurisdiction over divorce proceedings) and then shifting the burden to W to establish the existence of genuine facts supporting a CL marriage which she did not do. As a result, the COA found the trial court did not err in dismissing W’s Family Code claim. However, the COA did hold that the trial court erred in dismissing W’s alternative claims re: ownership and division of the Dallas residence.

The COA notes that H did not challenge W’s alternative claims in his plea to the jurisdiction. As such, the trial court had nothing before it regarding these claims and its rulings finding no jurisdiction on the Family Code claim did not and could not address these other matters. Finding that W failed to make a prima facie case of CL marriage, the COA affirmed the dismissal of the divorce claims, but reversed the final order as to the alternative claims, remanding those for further proceedings. COMMENT: Frankly, I think use of a plea to the jurisdiction in this case was brilliant. It worked because there was conclusive evidence that H was still married to another, precluding a CL marriage to W. It would seemingly work in other situations where there was conclusive evidence eliminating one of the CL marriage elements. However, it should not be used in fact intensive cases where each side has much to say about the various CL marriage elements because those cases could never support SJ standards for a “matter of law” dismissal.

  1. Touponse v. Touponse, 2021 Tex. App. LEXIS 5256 (Tex. App. – Fort Worth July 1, 2021) (mem. op.) (Case No. 02-20-285-CV)

H and W married in 1993 and primarily lived in Connecticut (CT). In 2018, W moved to TX to take a job at a private school. H, who founded and operated several residential construction businesses in CT stayed behind but told W he would follow her to TX in 12-18 months. H never moved and stopped sending funds to W. W filed for divorce in TX in January 2019. H did not contest personal jurisdiction and case was set for trial in December. Eight days before trial, H’s father and his company, GGT sued three of H’s CT companies, alleging that they had leased equipment to H’s companies from 2011 to 2019 on a “running account” and that H’s companies owed GGT $770K in rent. Two days after suit, H filed a counter petition seeking a just and right division and also asked for continuance of trial based on the CT suit. The continuance was denied. W amended her pleadings and asked that as part of a just and right division, H be awarded sole responsibility for any liability stemming from the CT suit. At trial, W’s expert (Stewart) testified and valued the community estate’s interest in 6 entities. He claimed the CT suit was suspect because H had never mentioned the rent issue in his on-site inspection of properties in CT and rental payments did not appear in corporate tax returns filed for prior years despite claims that they had been owing since 2011. Further, W offered the lease agreement between H and his father’s company, GGT, which had been signed only a few days prior to W’s divorce filing. On his inventory, H valued an entity known as T4 Holdings at $22,000 (which owned CT real property at Main Street) and an entity known as Ashford Woods at $48,000 (which owned CT real property on Bunker Hill). The trial court issued a letter rendition that specified in detail the court’s skepticism regarding the CT lawsuit based on the timing it was filed and other evidence suggesting that H, with his father’s help, was attempting to defraud the community estate, ordering H solely responsible for any CT suit liability and complete indemnification of W. In the decree, the court awarded H both the Main St. and Bunker Hill properties; a 50% interest in 3 entities and a 33% interest in another entity. H’s interest in several entities was awarded subject to his obligation to pay W $700K. H filed a MNT that was overruled by operation of law. H appealed, challenging the division of property. H claimed abuse of discretion because the court awarded him the Main St. and Bunker Hill properties as community property when it was undisputed that they were each owned by an LLC entity. H further alleged that this overvalued the community estate since the entities themselves had been valued based on inclusion of those properties and interests in those entities were also divided between the parties. Initially the COA notes a conflict of laws issue, advising that since the properties were located in CT and the entities were formed there, H and W’s rights in those assets were governed under CT law. However, neither party pled or proved the substance of CT law as affecting a division of corporate owned assets or how that might differ from TX law. Further, neither party asked the court to take judicial notice of CT corporate or marital property law. As such, the COA was entitled to presume that CT law was the same as TX law governing the divisibility of corporate property. Noting that under TX law, property owned by an LLC is not marital property, but property of the entity, the COA determined the trial court erred in awarding specific LLC real property to H and further that the values assigned to this award materially impacted a just and right division of the parties’ community estate. Having no choice, the COA affirmed the divorce but reversed the division and remanded the matter for a new division of community property.