Sallee S. Smyth

1.      Johnson v. Johnson, 2021 Tex. App. LEXIS 2645 (Tex. App. – Beaumont April 8, 2021) (mem. op.) (Cause No. 09-19-00329-CV)

In October 2012 W filed suit for divorce. In December, while the parties were separated, H went to the marital residence to retrieve some of his personal belongings. When he arrived he kicked the front door and walked in the house to see that many of his items had been moved. An argument ensued between H and W and W pulled a gun and shot H in the foot. (W claimed that H punched her in the face first and was advancing to hit her again when she shot him). H drove himself to the hospital, ultimately had two surgeries and was out of work for many months. H filed a counter petition for divorce and alleged a claim for personal injuries resulting from the gunshot. In March 2013 the parties appeared before the judge and announced that they had reached an agreement. The recitation did not specify the terms of the agreement but simply  stated that they were releasing one another from claims related to the “incident” and otherwise reflected an agreement on property division. At the conclusion of the hearing the judge stated “I’ll approve the agreement you’ve reached and grant the divorce.” In September 2013 H’s attorney sent notice to W’s counsel rejecting W’s proposed decree and stating that he was unwilling to release W from his PI claims. W filed a motion to enter the decree claiming the court had approved their agreement and granted the divorce in a prior hearing. H filed a motion for rehearing, arguing that the agreement read into the record was too vague to be enforced and further that the property division attached did not reference the PI claim. The court heard the motion in November 2014 where H’s attorney suggested that the PI claim could be severed and the court could approve the agreement for divorce and division of property. The Judge issued no ruling. In June 2016 (how do these cases drag out like this????) a new judge sat on the bench  and conducted a hearing in which he determined that the former judge had in fact granted a divorce in 2013 but he also granted H’s motion for rehearing as to the property agreements. In June 2018 (another two years has now gone by????) W proposes a final decree and advised the court that the agreement had been approved and the PI claim remained pending, having been severed by the prior judge in 2016. The court signed the decree in June 2018 and later clarified it to be clear that the PI case was now a separate suit. In May 2019 the court tried the PI case and  H and W were the only witnesses. Their versions of the events were disputed. H testified to his pain and suffering, his loss of work and he admitted evidence of his medical bills. The court ultimately awarded H a judgment against W for $92,000 which included 50% of his lost wages, medical expenses and $50K for pain and suffering. W appealed. In her first issue, W challenges the trial court’s decision to grant H a “rehearing” after their March 2013 agreement was announced and approved by the court. W argued that the rehearing effectively and improperly allowed the PI claim to go forward which was contrary to the parties’ agreement to release each other from liability. The COA reviewed the record and determined that the judge’s statement “I’ll approve the agreement you’ve reached and grant the divorce” was not a present rendition of judgment because “I’ll” is a contraction of the phrase “I will” which is a statement of something that will happen in the future. As a result, the entire proceeding was before the new judge in  June 2016 when he affirmed the parties March 2013 divorce but granted rehearing on the property issues and other claims and severed the PI claim. W argued that the trial  court  could not sever the divorce and division of property but the COA had already determined that a divorce was not granted in 2013 based on the judge’s statements and that W had not demonstrated that severance of the PI claim was improper. Because there was no prior divorce, the COA  concluded that there was no error in granting a rehearing on the property issues. The COA further affirmed the sufficiency of the evidence supporting the PI damage award. COMMENT: “I’ll” bet most of us could never imagine that the word “I’ll” could cost someone $92K and “I’ll” suggest that we all pay closer attention to the court’s concluding statements when agreements are read into the record.

2.      Prevallet v. Prevallet, 2021 Tex. App. LEXIS 2730 (Tex. App. – Fort Worth April 8, 2021) (mem. op.) (Cause No. 02-19-00383-CV)

H and W divorced in 2012 and within the decree, H was ordered to pay W spousal support of $1,150 per month until W died or until further order of the court. That judgment was affirmed  on appeal in 2014. H made monthly payments to W until June 2016 and then filed a “Motion to Modify/Terminate the Order for Spousal Maintenance.” At the hearing on H’s motion, H testified that he had become disabled and received only disability benefits as well as gifts and support from his family. H made it clear that based on his change in circumstances he wanted  the spousal support terminated. H offered no evidence suggesting he could continue to pay something less than the amount previously ordered, asserting that he should be required to pay zero. W offered evidence of her continued need for spousal maintenance and the financial  impact she had suffered when H stopped paying. In closing arguments, H’s counsel specified  that his client was seeking termination, not reduction, of the spousal maintenance. The trial court denied H’s motion and H appealed. H argued that the evidence demonstrated he could not pay the amount ordered based on his change in circumstances. The COA determined that H waived his clams for a modification of the amount because H pled only for termination and the evidence at trial established that statutory conditions for termination (death or remarriage of W) had not occurred. The COA overruled H’s argument that W failed to establish she still lacked property  to provide for her minimum reasonable needs. The COA further overruled the H’s argument that the amount ordered ($1,150) was not in accordance with the statutory cap on spousal maintenance. The COA found that although the evidence of H’s disability income would not have supported the $1,150 award, H offered no evidence regarding his other admitted financial resource and thus the court did not err in denying his motion to terminate. Judgment affirmed.

3.      Watret v. Watret, 2021 Tex. App. LEXIS 3141 (Tex. App. – El Paso April 26, 2021) (Cause No. 08-20-00124-CV)

In August 2012 the parties appeared before the trial court and proved up an agreed judgment on divorce and division of property. The trial court signed a Final Decree in November which was approved by attorneys for both parties as to form. Within the property division terms, H was awarded all benefits related to employee benefits, past, present and future and specifically including those attributable to his work in for the TX Dept. of Corrections. As a separate item, H was also awarded all benefits attributable to his service in the US Air Force (USAF) except for those awarded to W as more specifically provided in a QDRO to be signed by the court. Under the section awarding property to W, the decree provided that W would receive all benefits related to H’s service in the USAF with the exception of those that had been awarded to H as specified in a contemplated QDRO. Despite stated plans for a QDRO, no such order was entered. In October 2016 W filed a motion for contempt under TFC Chp. 9 alleging that H had failed to pay her the monthly benefits she was entitled to based on H’s retirement from the USAF. H filed a pro se answer denying the allegations, then hired counsel and filed special exceptions and a supplemental answer asserting that he had been awarded 100% of his USAF benefits. He further asserted that W’s were barred by TFC SOL. W filed an amended pleading seeking clarification of the decree terms to make it enforceable by including the date of marriage, the date of service, and the date of divorce and requested the court sign a QDRO. A hearing was held with only argument from counsel. W’s attorney argued for clarification to make the division of USAF benefits clear and H’s attorney argued that the decree failed to actually accomplish a division of those benefits altogether and that the time for division had passed. The court ruled that the prior judge, presiding over the August 2012 agreed judgment, had approved the parties’ agreement that W be awarded 50% of the H’s community property benefits from USAF and that the decree contained a scrivener’s error which prevented enforcement by contempt but justified clarification. The court ordered H to provide all information necessary to prepare a QDRO. A clarification order and QDRO were signed and H appealed. As to clarification, the COA determined that the mirror terms of the original decree, awarding an unspecified benefit to both parties while excepting an amount to be retained by the other, effectively evidenced an intent that both parties retained an interest in the retirement benefits but left out all of the needed details, making those terms ambiguous. Further the COA determined that mention of the contemplated QDRO evidenced an intent to divide those benefits between the spouses. Although no evidence was admitted indicating the parties’ original intent, the court took judicial notice of the 2012 agreed proceedings which reflected that W was to receive 50% therefore the trial court’s rulings in that regard had evidentiary support and entry of both the clarification order and QDRO were correct. H further argued that the court is not allowed to give retroactive effect when it clarifies an order if the clarification subjects a party to immediate contempt. Here the COA found that the signed order did not subject H to any such penalty. Finally, H argued that TFC 9.003(b) barred W’s clarification suit brought more than two years after her right to the property accrued. W argued that TFC 9.003(b) did not apply because the trial court maintains jurisdiction to clarify its orders under TFC 9.008 and further maintains the right to issue orders that assist in implementing property divisions under TFC 9.006 so long as the court does not alter or modify the original division. Agreeing with W, the COA holds that TFC 9.003(b) does not apply and  that a court maintains “continuing jurisdiction” over clarification matters. Trial court affirmed.

4.      M.K.J., 2021 Tex. App. LEXIS 3249 (Tex. App. – Corpus Christi April 29, 2021) (mem. op.) (Cause No. 13-20-00033-CV)

M and F divorced in 2007 and the court signed a decree including terms in a SAPCR. In 2011  the Decree was modified to name M and F JMC of their two children, MKJ and his brother MJ. The order specified that M had the right to designate the children’s residence in Harris or Montgomery County. In 2018 another modification gave F expanded possession rights to the children and addressed the fact that MKJ, then still a minor, was attending college. In April  2019 F filed another modification action which was set for trial in November. In September, before the suit went to trial, MKJ, then only 16, filed a suit to have the disabilities of his minority removed. The petition advised that MKJ lived in Bryan, Brazos County, despite the domicile restriction imposed on M as limited to Harris/Montgomery counties. The petition further specified that MKJ had received his associates decree in science (summa cum laude no less) from Lone Star College and he was now attending TX A&M on a scholarship. He sought removal of minority for general purposes so he could consent to his own medical care, make his own educational decisions, and sign contracts to secure housing and transportation. The court appointed an AAL to represent MKJ as required. At a final hearing, MKJ testified that his F was aware of the proceedings, that he was aware of where F resided, and that F approved of his request. The AAL testified at the hearing but gave no indication that he had spoken with or attempted contact with F. The trial court signed an order approving MKJ’s emancipation and when F learned about the order he timely filed a MNT asserting that he had received no notice of the proceedings and he asked that the order be set aside. F claimed that he was a necessary party entitled to service and he had not been served. F further argued that there was insufficient evidence to establish all criteria required for emancipation (i.e. MKJ was not a resident of Brazos County, not living apart from his parents and no self-supporting and managing his own financial affairs. The trial court denied F’s motion and F filed a motion to reconsider alleging that M and the child had effectively conspired to terminate his parental rights, demonstrating that M had signed the child’s lease, that the company the child worked for was created by M, that the child earned only about $200 per week, that the child had no transportation and that granting emancipation would leave the child without health insurance. The trial court denied the motion  to reconsider and F appealed. Examining TFC 31.002(b) which established the requirements of an emancipation pleading, the COA found that the petition must be verified by a parent except that if a managing conservator has been appointed, then it must be verified by that person if their whereabouts are known and if not, then by the AAL. M argued that nothing in TFC 31.002 requires both parents to verify or if the parents are JMC’s, that both JMC’s participate. The  COA disagreed and found that under the plain meaning of the terms used, F was a joint managing conservator and thus his verification was required. Further, MKJ testified that F’s whereabouts were known, so that exception under the statute was not applicable. The COA further found that since an emancipation order has the effecting of ending parental rights and obligations to the child, its similarities to a termination proceeding mandate due process for notice and an opportunity to be heard. The COA notes that the Legislature did not intend that a parent named JMC have no notice and no input in their child’s petition to emancipate and that the trial court erred in denying the MNT when it was advised that F did not join in verifying the child’s petition. Judgment of emancipation reversed and remanded for further proceedings.

5.      Pidgeon v. Turner, 2021 Tex. App. LEXIS 3286 (Tex. App. – Houston [14th Dist.] April 29, 2021) (Cause No. 14-19-00214-CV)

This case represents the next chapter in the longstanding suit brought by two Houston taxpayers to force the mayor of Houston to rescind its practice of using tax payer funds to extend benefits to the same-sex spouses of city employees, seeking injunctions to prohibit such practice and further requiring the city to “claw-back” those funds already spent. This litigation began in 2013 when the taxpayers obtained a temporary injunction against then Mayor Parker’s decision to extend benefits to same sex partners of employees where they had been legally married elsewhere, Mayor Parker’s directive coming in response to the US Supreme Court decision in United States v. Windsor which held the federal DOMA (Defense of Marriage Act) unconstitutional. The original 2013 litigation was dismissed but then refiled in 2014 and the tax payers sought declaratory and injunctive relief. The city filed pleas to the court’s jurisdiction  and challenged the tax payers standing. The trial court denied the city’s request and granted a temporary injunction prohibiting the city from furnishing benefits to employee spouses of the same sex legally married elsewhere. The city filed an interlocutory appeal. While that appeal  was pending the US Supreme Court issued its decision in Obergefell v. Hodges which held that same sex couples had the constitutional right to marry. Shortly thereafter in De Leon v. Abbot, the 5th Circuit ruled that lower courts in TX were enjoined from enforcing the TX Constitutional amendment, the TFC statute or any other rule or regulation which prevented persons of the same sex from marrying. This decision led the 14th COA to reverse the trial court injunction in a per curiam opinion handed down in the city’s pending interlocutory appeal. Petition for review was granted by the Supreme Court who reversed the COA decision, remanding the matter back to the trial court to consider the tax payers claims in light of the Obergefell and De Leon decisions.  The TX Supreme Court found that unlike the 5th Cir. in De Leon, the US Supreme Court did not hold that TX DOMA laws are unconstitutional, but instead, only held states are required to license and recognize same sex marriages to the same extent as opposite sex marriages, however that ruling did not require states to provide the same publicly funded benefits to all married persons. Before mandate issued, the taxpayers filed an amended petition in the trial court  seeking additional relief. Competing summary judgments were filed. Ultimately in February 2019 the trial court granted the City’s plea to the jurisdiction and counter motion for summary judgment, dismissing the tax payers claims with prejudice. Tax payers appealed. The Opinion initially addresses the government immunity arguments challenging the tax payers right to bring an ulta vires claim against the City. The COA finds the city immune from such claims and that Mayor Parker, and ultimately, Mayor Turner, were acting within their discretion and further as authorized by then existing law, noting the 2014 “Freeman injunction” issued by federal district Judge Sam Lake which prohibited the city from discontinuing the challenged benefits. The COA determines that decisions following Windor, including Obergefell, Pavan v. Smith and Bostock v. Clayton County, GA, have all made it clear that the Due Process and EP clauses of the US Constitution require states to grant same sex married couples the same legal rights, benefits and responsibilities as different sex married couples and that those precedents must control. The COA rejected the tax payers arguments that if the city wishes to treat all married couples equally then it should withdraw its employee benefits to all married couples, whether same or opposite sex. The COA further rejected the tax payers religious rights arguments noting that the city is  not a religious organization. Ultimately determining that the tax payers had proven no  irreparable injury, had provided no basis for securing a “claw back” of benefits already provided and no standing to pursue such relief, the COA uphold the trial court’s decision to grant the City’s plea to the jurisdiction and summary judgment, affirming the order dismissing the tax payers suit with prejudice. COMMENT: Going out on a limb here, I don’t think we have heard the last from the tax payers on this issue. In the meantime, I think the take away for family lawyers is that part of the COA decision holding that Windor, Obergefell, Pavan v. Smith and Bostock v. Clayton County, GA, all make it clear that the Due Process and EP clauses of the US Constitution require states to grant same sex married couples the same legal rights, benefits and responsibilities as different sex married couples and that those precedents must control. A broad interpretation of “rights, benefits and responsibilities” would seem to open up a whole host of possible arguments surrounding existing Family Code statutes which may be impossible for reluctant trial courts to ignore. Go forth and conquer.