Houston Bar Association - Family Law Section

Gray's Interesting Cases for July, 2008

Updated and presented by Sallee S. Smyth

In re Zandi, 2008 Tex. LEXIS 514 (Tex. Supreme Court, May 30, 2008) (Cause No. 07-919)
Father was held in contempt and sentenced to extended jail time for failure to pay child support in excess of $90,000.00. His sentence was suspended on conditions that (1) he pay a lump sum amount of $25,000 to mother; (2) make monthly payments on the arrearage; (3) make his routine payments of support and (4) appear in court every six months for a “review and status” hearing. Before the first hearing Father asked to modify the conditions because his financial circumstances had changed and further the children had now come to live with him so that he owed no future support. At the hearing it was conceded that Father had paid the initial lump sum amount but Mother asked that the suspension of commitment be revoked because she claimed he had not paid the all of the current support obligations. Father objected to this request because Mother had not filed any type of written motion seeking to revoke his suspended sentence. The trial court revoked the suspension and Father was jailed. The court of appeals denied Father’s petition for writ of habeas corpus.

The Texas Supreme Court granted the writ holding that parties are entitled to specific written notice of the conduct which allegedly violates the orders before they may be confined for these violations. The Mother argued that the underlying order which required Father to appear every six months for a status conference on the conditions imposed was sufficient to put Father on notice but the Supreme Court disagreed, stating that the order provided no notice that allegations would be made or what they would be. Without notice, Father was denied due process and the writ was granted.

Comment: Contempt practitioners beware. If you will ask for revocation at a compliance hearing, you better file a written motion and obtain service on the accused before the compliance hearing … otherwise the ability to enforce via confinement in jail may evaporate with a valid habeas corpus request.
In the Interest of P.D.D., A Child, 2008 Tex. App. LEXIS 4087 (Tex. App. – Texarkana, June 5, 2008) (Cause No. 06-07-0079-CV)
H and W divorced with no children but shortly thereafter W discovered she was pregnant. A subsequent paternity decree was entered and H was ordered to pay support, maintain insurance and pay a portion of uninsured medical expenses for the child. At some point the parties resided together again but did not remarry and then they eventually separated for good. H filed a contempt action against W to enforce his possessory rights. W was held in contempt, H was given make-up visitation and W was ordered to pay fees. Thereafter, H filed a motion to modify custody and W countered with a request to increase child support. The parties settled the modification which included an agreement to vacate W’s prior contempt. Several months later W filed a motion to enforce the prior order regarding delivery of personal property items belonging to the child and for past due uninsured medical expenses. The case was tried and after bench briefing the court ruled that W was barred by res judicata from enforcing the uninsured medical expenses because she failed to address this in the prior proceeding and her settlement of the prior proceeding precluded her claims. W appealed claiming that H failed to properly plead these affirmative defenses and they were not tried by consent.

The COA reversed and remanded finding that while res judicata was implicated by H’s pleadings, settlement was not and the issues were not tried by consent. Further the COA determined that enforcement of uninsured medical expenses was not the same subject matter as a claim for increased future child support and therefore W was not required to bring this claim in the prior suit.
Brooks v. Brooks, 2008 Tex. App. LEXIS 4148 (Tex. App. – Fort Worth, June 5, 2008) (Cause No. 02-07-270-CV)
H and W were married for over 30 years before W filed for divorce in 2003. The parties entered into an MSA dividing their property in 2003. As part of the mediation H had represented that certain of his RR benefits were not divisible but it was later discovered that they were. In 2004 the attorneys, by letter agreement filed with the court, agreed that the original MSA was void and that they would re-mediate the case. They were unable to settle at the second mediation and went to trial in 2006. They both offered proposed divisions and they stipulated that a portion of H’s RR benefits were divisible and that H would not interfere with any award of that portion to the W. W also asked for spousal maintenance. The court issued a ruling dividing property and awarding W maintenance. Before the decree was signed H obtained new counsel who filed a MNT and argued that the original MSA should have formed the basis of the trial court’s division and that there was insufficient evidence to award spousal maintenance. The trial court denied H’s motion and signed the decree. H appealed.

The COA held that H could not seek enforcement of the original MSA under the theory of quasi-estoppel finding that H had filed a proposed division different from the MSA, thereby taking a different position at trial and further had accepted benefits from the sale of some property prior to the MNT hearing. The COA found that it would be unconscionable to enforce the prior MSA. Further the court found that W’s testimony regarding her physical limitations was sufficient to support indefinite spousal maintenance without expert medical testimony.
Fowler v. Fowler, 2008 Tex. App. LEXIS 4145 (Tex. App. – Fort Worth, June 5, 2008) (Cause No. 02-07-274-CV)
In 2004 the court signed an Agreed Decree which awarded W over 100 items of personal property. She was allowed to remain in the residence for 30 days after the divorce and she personally packed her items and moved out, taking only about 60 of the items with her. She apparently never asked H to cooperate in allowing her to secure the other items and nothing suggested that H ever stood in her way of getting them. Instead, W filed a motion enforce under Chapter 9 and asked for judgment for the value of the property in the amount of $75,000.00. After the evidence H moved for a directed verdict which was granted. W appealed.

The COA held that even if a court can enforce an underlying order it may choose not to in its discretion. Further, W’s request that the court clarify the underlying order to make specific provisions for delivery of the property was not necessary since the decree gave W possession of the house for 30 days after divorce to remove her things and there was no evidence that H had ever done anything to interfere with her ability to get her belongings.

Comment: There are two things wrong with this case: (1) The trial court did not make W pay attorneys fees for a frivolous filing and (2) the COA did not award delay damages for an even more frivolous appeal.
In the Interest of B.L.A., A Child, 2008 Tex. App. LEXIS 4118 (Tex. App. – Dallas, June 6, 2008) (Cause No. 05-07-933-CV) (memorandum opinion)
The AG filed suit to establish child support from an alleged F. Alleged F filed an answer and asserted statute of limitations as an affirmative defense and asked the court to deny genetic testing. The trial court entered an order dismissing the suit with prejudice and the AG appealed.

Following the decision in In re D.K.M., 242 S.W.3d 863 (Tex. App. – Austin 2007, no pet.) the Dallas court held that procedurally there is no device such as a motion to dismiss under the rules of civil procedure and that in this case, a motion for summary judgment on the limitations defense would have been the appropriate tool for alleged F to obtain relief. Because proper procedures were not followed, the COA reversed and remanded the cause back for further proceedings.

Comment: The court of appeals is expressly inviting us to properly utilize summary judgments in family law cases! Please RSVP.
Elmakiss v. Elmakiss, 2008 Tex. App. LEXIS 4195 (Tex. App. – Tyler, June 11, 2008) (Cause No. 12-06-405-CV)
H and W had one child. W filed for divorce and sought appointment as SMC of the child. She also pled for reimbursement. In his counter-petition H asked to be named JMC. The trial court ordered the exchange of sworn inventories and proposed parenting plans. W filed hers along with a proposed property division but H filing nothing. After a bench trial the court approved W’s parenting plan, appointed her SMC, gave H limited visitation, divided the property according to her proposal which included an award of reimbursement. Before the decree was signed, W also asked for an order suspending H’s visitation based on alleged threats he had made. In the decree the court made findings that the child was at risk for international abduction, ordered supervised visitation, terminated his telephone access to the child and ordered child support. H appealed.

The court held that while W and her expert offered sufficient evidence that she paid community debts with separate funds, she failed to offer evidence that the debts were reimbursable in nature and therefore failed to carry her burden. H’s complaints regarding the remainder of the property division were overruled but interestingly the court of appeals did not reverse and remand the entire property division but instead reversed only that potion which disproportionately divided the sales proceeds of a residence in W’s favor to compensate her for the reimbursement claim. The COA analyzed the evidence and found that W overcame the presumption of JMC and that there was sufficient evidence to support the finding of an abduction risk and the restrictions imposed on H’s visitation. The COA also found no evidence supporting H’s income for purposes of establishing child support, reversing and remanding this portion of the order as well.
In the Interest of H.G., K.G. J.G. and T.G., Children, 2008 Tex. App. LEXIS 4189 (Tex. App. – San Antonio, June 11, 2008) (Cause No. 04-07-656-CV)
Maternal GP’s were named managing conservators of their four grandchildren prior to a termination of their biological parents rights. After the termination a couple adopted all four children with the consent of the GPMC’s. More than 2 years later the adoptive couple sought and obtained a divorce naming them JMC’s of the children. About eight months later, the GP’s filed an original suit for access, claiming that their consent to the adoption had been procured with a promise of continued visitation and they were no longer being allowed to visit the children. Adoptive mom challenged the suit for lack of standing and the court dismissed. GP’s appealed.

The COA determined that because the GP’s could not demonstrate statutory standing under TFC, they were required to rely on a theory of estoppel, claiming that the adoptive parents should not be allowed to challenge the suit because they would never have been permitted to adopt absent the GP’s consent as managing conservators which was only given because of the promise of visitation. The COA determined that GP’s could have protected their rights to visit with the children under the Family Code before the adoption was granted but they did not do so and their failure to do so then, precludes them from seeking such rights now. The COA affirmed the trial court’s dismissal for lack of standing.

A dissent was filed in this case which argued that in the best interest of the children the trial court should have exercised “equity jurisdiction” to give the GP’s relief. The majority noted that subject matter jurisdiction cannot be conferred by principles of equity.
In the Interest of S.L.M., A Child, 2008 Tex. App. LEXIS 4488 (Tex. App. – San Antonio, June 18, 2008) (Cause No. 04-07-566-CV)
Child A was adopted by Cindy and Gary. Subsequently, Child A’s parents had another baby, Child B, who was born in 2005 and quickly removed from her home by CPS and placed with foster parents Michelle and Jerry. The parent’s rights to Child B were were terminated a year later and her foster parents filed a suit to adopt. Cindy and Gary, the adopted parents of Child B’s half-sibling, intervened and asked for custody of Child B based on her relationship with their adopted child. The trial court determined that Cindy and Gary lacked standing and denied custody as well as denied their request for visitation rights on behalf of the sibling. Under TFC 102.004(b), Cindy and Gary would have possessed standing if they could have established a substantial past relationship with the child. Because they could not, they claimed they had a justiciable interest in the controversy sufficient to confer standing and that Michelle and Jerry had prevented them from developing a relationship with the child which would have otherwise qualified them under the TFC.

The COA determined that when standing is governed by statute, a claimed justiciable interest must be sufficient to override the statutory requirements and one cannot acquire standing on equitable grounds. The COA also affirmed the decision to deny sibling visitation because the child seeking access was not 18 as required by TFC 153.551 and TFC 102.0045. Further, the court noted that even if it could support standing for the visitation request, the court could still deny relief based on the child’s best interest and because of the animosity between the two couple, there was sufficient evidence to suggest that visitation would not have been good for the children.

Comment: The COA decision seems to leave open a small crack in the door to make the argument that a person with a solid “justiciable interest” in the proceedings could obtain standing without qualifying under the express standing statutes contained in the TFC. Just what facts might give rise to this argument is something worth considering.
Gray v. Nash, 2008 Tex. App. LEXIS 4591 (Tex. App. – Fort Worth, June 1, 2008) (Cause No. 02-07-351-CV)
H and W1 divorced in 1997. The decree obligated H to secure a life insurance policy as additional child support with a death benefit of at least $60,000 payable to W as trustee for the benefit of the child. H secured a $500,000 policy and named the child as beneficiary. In 1998 H remarried W2 and he changed the beneficiary designation, naming W1 as beneficiary to $60,000 with the remainder going to W2. In 2001 the decree was modified and H was awarded custody of the child and his child support obligation was terminated. In 2006 H died in a car accident and W2 presented his death certificate to the insurance company and sought 100% of the policy proceeds. The insurance company filed an interpleader action and deposited $60,000 plus interest into the registry of the court and paid the balance of the policy to W2. W1 and W2 both filed traditional motions for summary judgment. The trial court denied W1’s motion and awarded W2 the balance of the money in the registry of the court.

The COA reversed holding that the plain language of the insurance policy designated W1 as beneficiary and this designation was in no way tied to any order or obligation for support. There was no evidence to suggest that H meant for the designation to benefit the child. Further the COA refused to extend application of TFC 9.301(a) (providing that a decree of divorce or annulment renders a beneficiary designation of an ex-spouse ineffective) to the custody modification order because the statute was expressly limited to divorce and annulment decrees. A variety of other arguments not adequately briefed by W2 were overruled.
In the Interest of M.P.B., A Child, 2008 Tex. App. LEXIS 4546 (Tex. App. – Dallas, June 20, 2008) (Cause No. 05-07-0093-CV)
M and F were appointed JMC of a child with M as primary. M and child lived with GM for a short time and then in an apartment near GM. F moved to California and was largely absent. When the child was 20 months old, M died in a fire. GM fled suit seeking custody and F filed a habeas corpus action seeking possession of the child. The trial court denied the habeas and F filed a counter action seeking custody. F also filed a motion to dismiss GM’s suit based on her alleged lack of standing. In the meantime, GF (GM’s ex husband) and his new wife intervened and sought grandparent visitation. F filed a jury demand and also sought to continue a trial setting so he could obtain a social study. In the hearing on the motion for continuance, F’s counsel agreed to withdraw his jury demand if he could have the continuance. The court granted the continuance. After a bench trial the court appointed GM and F as JMC’s giving GM primary and gave GF visitation one weekend per month. F appealed.

The COA determined that the GM had standing based on evidence which suggested that over the child’s life of 20 months, the child had stayed at the GM’s home routinely, had her own bedroom there, vacationed with her there, and spent more time there in the care, custody and control of GM than she did at her mother’s. The COA determined that this extended possession over at least a six month period was sufficient to give GM standing under TFC 102.003(9). Further the COA determined that F did not preserve any issue regarding the denial of a jury trial because he did not object to the bench trial and the record showed his request for jury was voluntarily withdrawn. As to the issue of custody, the COA found more than sufficient evidence to support an award of primary to GM based on the F’s extensive history of drug use and domestic violence and the limited time he had spent with the child after moving to California. Judgment was affirmed.
In the Interest of K.R.S., A Child, Tex. App. LEXIS 4701 (Tex. App. – Houston [14th Dist.] June 24, 2008) (memorandum opinion) (Cause No. 14-07-0080-CV)
When the child was 16 years old, the AG brought suit to disprove paternity of the child’s presumed F (based on non-access) and to establish paternity of alleged F. Alleged F challenged jurisdiction and filed a motion to dismiss which was denied and the trial court issued an order disproving presumed F’s paternity. Alleged F filed a mandamus which was denied and the case was sent back to the trial court for further proceedings. Alleged F then filed a no evidence MSJ on these issues. The AG filed a response and attached certain evidence in support of its claim. Alleged F objected and filed a motion to strike the response and the evidence based on three grounds: (1) they were untimely; (2) the evidence not authenticated; and (3) the evidence contradicted the AG’s prior responses to requests for admissions. The trial court granted the motion to strike and the Alleged F’s no evidence MSJ. AG appealed and in its initial brief the AG defended against only two of the three grounds asserted by Alleged F in his motion to strike. The AG waited until its reply brief to address the third ground.

The COA determined that this was too late and that issues raised for the first time in a reply brief are waived. The AG argued that technical appellate rules should be relaxed in family cases because of the important interests at stake but the COA disagreed noting the many termination of parental rights cases where the rules are strictly enforced. The COA affirmed the trial court judgment.
Mahady v. Mahady, 2008 Tex. App. LEXIS 4778 (Tex. App. – Fort Worth, June 27, 2008) (memorandum opinion)
H and W were married and had 5 children. In 2005 W left with the children and moved to California. H filed for a divorce in Texas and was eventually able to serve W with citation. W sent an answer by UPS which was received in the district clerk’s mail room and stamped at 9:28 a.m. on the date her answer was due by 10:00 a.m.. H appeared in court and proved up the divorce by default at 10:06 a.m. that same date. W filed a MNT providing proof of her timely answer but her MNT was denied when she failed to appear for the hearing. W then filed a bill of review. H filed both a traditional and no evidence MSJ but later withdrew the traditional motion. H’s no evidence motion challenged W’s proof on three of the four elements needed to prevail on a bill of review. Despite proof that she timely filed an answer, the trial court granted the no evidence motion and W appealed.

The COA determined that W’s answer was at least some proof that she attempted to participate in the Texas divorce proceeding and further that in a BOR case where there is evidence that the default was wrongfully obtained in the face of a timely answer, the proof requirements for accident, fraud or wrongful act are eliminated. W’s evidence was enough to preclude a no-evidence MSJ and the case was reversed and remanded for a trial on all issues.