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Gray's Interesting Cases for June, 2008

Updated and presented by Sallee S. Smyth
  1. In re Dominguez, 2008 Tex. App. LEXIS 3245 (Tex., May 5, 2008) (Cause No. 14-08-206-CV)

    Father was ordered to pay support in 1992 order. Father was held in contempt in 1996 but his sentence was suspended. When Father failed to show for a compliance hearing in 2005 the court issued a capias. On October 21, 2007 Father was picked up on the capias. On October 23, 2007 a contempt hearing was held before the AJ who advised Father of his right to counsel. Father indicated that his mom was hiring counsel for him and the hearing was reset to October 30, 2007. The attorney mom hired showed up in court with Father on October 30, 2007 but advised the court that there had been some miscommunications regarding the underlying services to be performed and he would not in fact be representing Father at the hearing. The presiding judge then advised that the hearing would go forward which it did. The court revoked Father’s suspension and ordered him committed to jail. On March 5, 2008 the court held a hearing on an amended motion for contempt. The court held Father in contempt and sentenced him to 15.5 years (180 days for each of 32 counts) and granted an arrearage judgment for almost $70,000.00. The court signed an order on March 7, 2008. Father filed a writ of habeas corpus complaining about his commitment under both orders.

    The first order he contends is void because he was did not voluntarily waive his right to counsel at the October 30, 2007 hearing. The COA agreed finding that under the circumstances, the presiding judge was required to read Father his rights again and that his participation pro se was not voluntary under the circumstances. The second order Father argues is void because the court delayed in signing it for 3 days after he was committed. The COA agreed, finding that while less than 24 hours may be reasonable between commitment and written order, 2 – 3 days is not. Habeas corpus was granted and Father was released.

  2. In re J.O., 2008 Tex. App. LEXIS 3465 (Tex. App. – San Antonio, May 14, 2008) (Cause No. 04-07-00752-CV) (memorandum opinion)

    In August 2006 maternal aunt and uncle, who had cared for their 18 month old great niece off and on since birth and more recently on a consistent basis under a safety plan with CPS, filed suit seeking custody, alternatively, possession and access. In September the court appointed them temporary managing conservators and the child’s mother as a possessory conservator. After a trial on the merits the court appointed mother as managing conservator finding that she had cared for another child; had maintained appropriate housing and employment; maintained visits with the child; fostered a relationship between the child and her half-sibling; and generally acted as an appropriate parent. Father was appointed possessory conservator. The court denied access to aunt and uncle who appealed. Aunt and uncle complained that the trial court improperly excluded or failed to consider certain evidence, erred in applying the parental presumption and abused its discretion by denying access.

    The COA noted that the final judgment was signed in August and the aunt and uncle submitted sworn statements and exhibits in October which failed to comply with the rules regarding a formal bill of exception. TRAP 33.2. Further because the attempted “offer of proof” was not made during the evidentiary portion of the trial it did not properly preserve error. Regarding the presumption, aunt and uncle contend that this was rebutted by mother’s voluntary relinquishment of the child for a period of more than one year. The COA noted that TFC §153.373 is a two prong test requiring not only relinquishment for the required period but also a showing that it would be in the child’s best interest to appoint the non-parent as conservator. Based on the evidence of the mother’s continued efforts and improvements the COA determined the presumption was not rebutted. Finally, aunt and uncle complain that they were denied access. The COA held that while the Legislature intended for grandparents to be able to seek access in certain circumstances, no similar provision extended to aunts and uncles.

  3. Stoker v. Stoker, 2008 Tex. App. LEXIS 3455 (Tex. App. – Tyler, May 14, 2008) (Cause No. 12-07-00334-CV) (memorandum opinion)

    The parties’ 2006 final decree gave them each an undivided interest in the community residence which was ordered sold. The decree provided for the appointment of a receiver if the parties could not agree on the sales price. In 2007 wife filed an application for the appointment of a receiver. At the hearing the court heard arguments from counsel but admitted no evidence in support of the requested relief. The trial court eventually signed an order appointing a receiver. Husband appealed based on the lack of evidence to support the order. The COA acknowledged that while TFC §6.502(a)(5) give the court the authority to appoint a receiver, it offers no guidance on the predicate necessary to support such relief.

    The COA examined numerous prior cases noting that while the requirements for appointment varied, it was at least common that the order must be supported by evidence. Since the trial court in this case heard argument only, the COA rendered judgment vacating the receivership.

  4. In re Lester, 2008 Tex. App. LEXIS 3502 (Tex. App. – Beaumont, May 15, 2008) (Cause No. 09-08-0086-CV) (original proceeding)

    In December 2005 the parties were divorced in Maryland. The decree did not specify which parent had primary custody of the child but stated that they would share physical custody and share in decision making. The agreement required the parties to alternate the child on a weekly basis. After divorce all three moved to Texas. Mom bought a house in Beaumont and Dad bought a house in Missouri City. In July 2007, after the child completed kindergarten in Beaumont, mom filed suit in Jefferson County to register and modify the Maryland decree. Dad moved to transfer venue to Fort Bend County claiming that neither parent was primary and the child had resided in FBC with him on the date the mom’s suit was filed. The dad argued that venue rules for original proceedings applied, (Chp. 103) while mom argued that venue rules for modification applied (Chp. 155). The court denied the motion after a hearing and Dad filed a motion to reconsider alleging for the first time that the transfer must be granted because mom never filed a controverting affidavit.

    The COA noted that while the Maryland decree was not as specific with regard to custody orders as a Texas decree might have been, it nevertheless did make provisions for custody and therefore mom’s suit to modify the Maryland decree re: custody could not be considered an original suit for venue purposes. Further, since TFC §155.201(b) transfers require a party to establish that the child had lived in a particular county for at least 6 months, in the absence of such proof from the Father the trial court’s decision to deny the transfer was correct.

  5. Belmonte v. Belmonte, 2008 Tex. App. LEXIS 3503 (Tex. App. – Beaumont, May 15, 2008) (Cause No. 09-07-225-CV) (memorandum opinion)

    The parties married in New York in 1995. In July 2003 they relocated to Texas with their children due to husband’s job. They leased their NY house and bought a house in The Woodland, Texas. In the summer 2006 husband had the chance to move back to NY. The parties listed the Texas home for sale and prepared to move. In October husband advised wife that he was having an affair. She returned to NY at Thanksgiving with the children. On November 21, 2006 husband filed for divorce in Montgomery County, Texas. After an altercation in NY, Wife obtained a protective order from the NY family court. Wife then filed a motion to dismiss the Texas suit based on forum non conveniens and a special appearance, attaching a detailed affidavit. At the hearing only husband testified. The court contacted and spoke with the NY judge but no record was made. The court granted wife’s motion to dismiss and husband appealed.

    The COA found that while evidence is required to support a forum non conveniens order, the husband’s testimony, coupled with the wife’s affidavit (even though not admitted into evidence) along with the court’s conversation with the NY judge (to which no one objected) was sufficient to support the trial court’s decision to dismiss, however, the COA corrected the dismissal to one without prejudice.

  6. Mason v. Mason, 2008 Tex. App. LEXIS 3547 (Tex. App. – Houston [14th Dist.], May 15, 2008) (Cause No. 14-07-00991-CV)

    The parties reached a binding mediated settlement agreement as to temporary orders in a divorce. As part of the MSA the parties agreed to binding arbitration to resolve disputes under the MSA, including any issues regarding compliance. A dispute arose regarding husband’s compliance with terms for payment of certain attorney’s fees. The court signed an order confirming the arbitration award regarding compliance and husband brought an appeal from this interlocutory order. Since the issue involved an attempted appeal from temporary orders under the TFC, the COA questioned its jurisdiction. Husband asserted that he could appeal from an interlocutory order confirming an arbitration award under TCPRC §171.098.

    The COA noted that when two statutes are in conflict with one another, the more specific statute controls. The COA determined that because the TFC statutes [6.502 and 105.001(c)] are more specific than the TCPRC statute, they controlled and the COA had no jurisdiction to entertain husband’s appeal.

  7. In re Smith, 2008 Tex. App. LEXIS 3641 (Tex. App. – San Antonio, May 21, 2008) (orig. proceeding) (Cause No. 04-08-285)

    In a divorce proceeding, Husband was ordered to pay spousal support of $2400/month after a temporary hearing in which he did not participate. He moved to amend the temporary orders and the amount was reduced to $1800/month pursuant to an agreed order. Wife sought to enforce the order because Husband made the first monthly payment but no others. The court held Husband in contempt and entered a judgment against him but did not send him to jail Husband filed a petition for writ of mandamus claiming the order was unenforceable by contempt. Husband argues that the order is void because it requires him to pay spousal support from his veteran’s and social security disability benefits in violation of federal law (citing 615 SW2 192 and 659 SW2 746). These cases involved final divorce decrees however and are therefore distinguishable. Husband also argues that since the federal benefits are his only income the order requires payment from these funds by implication, however Husband failed to offer this proof into evidence. Finally Husband argues that the orders violate TFC§8.055 which requires court to exclude certain benefits from consideration when ordering spousal maintenance.

    The COA notes however that this was temporary support ordered under TFC §6.502(a)(2) which is viewed as a different statutory scheme. Mandamus denied.

  8. Perez v. Perez, 2008 Tex. App. LEXIS 3668 (Tex. App. – Beaumont, May 22, 2008) (Cause No. 09-06-521-CV)

    H and W married in 1999 and W filed for divorce in January 2005. The case was tried for 7 days and the court signed a decree in August 2006 granting divorce based on fault grounds, dividing property and awarding judgment against H for $25,000 in damages stemming from an assault on W. Two months after the decree was signed H filed a motion to modify custody based on W’s overdose and hospitalization. After a temporary hearing the court issued a ruling finding that W had made arrangements for the child to insure their safety and denied H’s motion but signed no written order. H filed a notice of appeal which referenced only the August 2006 decree but on appeal his brief challenged the court’s ruling on the post-judgment modification action as well. In addition to this challenge, H complained about (1) the characterization of several CD’s and the award of a portion of these to W and (2) the damage award.

    The COA found that the evidence clearly established that the CD’s were owned by H prior to marriage and that his sister had cleared out the accounts around the time the W filed for divorce, leaving zero balances. Although the COA found that the trial court mischaracterized the CD’s as community property there was no harm because the court did not divide any claim the parties’ may have had against the sister for taking the funds and the court divided as community property assets having no value, therefore the mischaracterization had only a de minimis effect on the overall division. The COA found sufficient evidence to support the damage award for assault. The COA affirmed the decree but dismissed the part of the appeal relating to the modification action finding no jurisdiction because the order was not specifically identified in H’s notice of appeal and he failed to seek leave to amend it. Finally, H asked for a new trial because of a missing exhibit from trial however the COA determined that the missing exhibit did not relate to or affect the issues on appeal and denied H relief.

  9. In re Steed, 2008 Tex. App. LEXIS 3652 (Tex. App. – Austin, May 22, 2008) (orig. proceeding) (Cause No. 03-08-235-CV) and In re Bradshaw, 2008 Tex. App. LEXIS 3746 (Tex. App. – Austin, May 22, 2008) (orig. proceeding) (Cause no. 03-08-298-CV)

    NOTE: Both of these decisions involve the removal of children from the FLDS Yearning for Zion Ranch outside Eldorado, Texas. The decision in Bradshaw is based on the same facts and arguments as the decision in Steed and they are being reported together.

    Petitions for writ of mandamus were filed by several mothers of the children removed by CPS from the FLDS community in April 2008, complaining that the evidence was insufficient to support the removal and retention of the children under TFC§262.201. Removal and retention was based on evidence that the children were part of a collective “household” of believers who groomed male children to become sexual predators and female children to become sexual abuse victims by encouraging marriage, sex and childbirth as soon after puberty as possible. While there was evidence that 5 of the children removed had become pregnant between the ages of 15 and 16, none of these children belonged to the relators nor lived in their homes at the ranch.

    The COA found there were no allegations of physical abuse other than that which was sexual in nature after the children reached puberty. The COA found no evidence of abuse to the specific children in question as required by the statute because they were all pre-puberty age. Further the COA found that simply while they might be exposed to this lifestyle in the future, they were in no urgent or immediate danger as required by the statute. The COA rejected the notion that the children were all part of a common household because although they lived more communally than typical neighborhoods, there was evidence that some families on the ranch had different beliefs about polygamy and the appropriate age for marriage and children. Finally the COA found that CPS failed to make a reasonable effort to figure out some means of protecting the children other than removal as required by the statute and that removal of all children based on a call from a witness who could never be located and the existence of only 5 children who became pregnant was not well-founded. The petition for mandamus was granted and the trial court was ordered to vacate the temporary orders regarding the specific children of the mothers involved in Steed and Bradshaw.

    NOTE: The State sought mandamus in the Texas Supreme Court and this decision is reported below in case summary number 11.

  10. In the Interest of M.M.S. and L.M.S., 2008 Tex. App. LEXIS 3820 (Tex. App. – Dallas, May 23, 2008) (Cause No. 05-06-1602-CV)

    The parties were divorced in 2005 and dad was living in Oklahoma at the time. The parties were named JMC and dad was given an SPO which included over 100 mile visitation allowing him to choose between 1 weekend a month or 1,3.5 weekends. Mom was ordered to maintain health insurance and dad was ordered to reimburse. Dad exercised his visits regularly, sometimes allowing the children to visit with his parents in Texas. Dad filed a motion to modify visitation (reasons not given in opinion) and then amended and asked that he be ordered to provide health insurance because he could obtain it at no cost through his job. Mom filed suit t enforce past-due medical reimbursements. After a trial the court modified Dad’s possession by limiting it to 1 weekend per month and providing that it must be exercised in Texas. The court denied Dad’s request to provide health insurance and granted Mom a judgment for past due medical and attorney’s fees. Dad appealed.

    The COA reversed and vacated the trial court’s orders regarding visitation finding that there was no evidence to support a finding that this modification was in the children’s best interest. The COA affirmed the remainder of the judgment finding that TFC§154.182 does not require an order that the obligor to maintain health insurance if there is good cause whey the obligee should and the mom’s concerns about dad’s inconsistent employment was good cause. The COA further found the evidence sufficient to support the judgments for medical support and attorney’s fees.

  11. In re TDFPS, Tex. LEXIS 510 (Tex. Supreme Court, May 29, 2008) (orig. proceeding) (Cause No. 08-0391 stemming from In re Steed) and In re TDFPS, Tex. LEXIS 511 (Tex. Supreme Court, May 29, 2008) (orig. proceeding) (Cause No. 08-0403 stemming from In re Bradshaw)

    TDFPS seeks mandamus from the Texas Supreme Court to overturn the rulings of the Austin court of appeals granting return of the 400+ children removed from the Yearning for Zion Ranch to their parents.

    Based on the record presented, the Supreme Court agreed with the decision in In re Steed (above @ 9) finding that the department had not met its burden of proof under TFC§262.201(b)(1). While the Supreme Court recognized that the trial court must vacate its current temporary order, the Family Code permitted new temporary orders that provided for other measures attempting to protect the welfare of the children such as enjoining removal of the children from a specified geographic area; ordering removal of any alleged perpetrators from a child’s home and orders which would enable TDFPS to continue their investigation.

    Dissent: Justice Harriet O’Neill (joined by Justices Johnson and Willett) dissented in part believing that TDFPS did meet their burden with respect to the abuse of pubescent age girls living on the ranch and because of the resistant behavior of the children and adults initially interviewed, TDFPS did all that it could to determine reasonable alternatives to their removal,finding that the trial court did not abuse its discretion in ordering the removal of these girls to the custody of the State.