Houston Bar Association - Family Law Section

Gray's Interesting Cases for July, 2009

Updated and presented by Sallee S. Smyth

Young v. Young, 2009 Tex. App. LEXIS 4033 (Tex. App. – Fort Worth May 28, 2009) (Cause No. 02-08-310-CV) (mem. opinion)
W filed for divorce in July 2006 and the parties were ordered to file sworn inventories. H served a request for production on W in 2007. Trial was eventually set in April 2008. Prior to that time H filed a motion to compel production, complaining that W had produced some information more than a year after the request but that her response was inadequate. H also complained that W had not filed an IAA. W did not appear for the hearing and the AJ ordered her to produce all requested documents and assessed attorneys fees. The order also advised that W’s pleadings would be struck if she failed to comply, reciting that less stringent sanctions had been considered. When W did not comply the court struck her pleadings and barred her from denying any allegations in H’s pleadings. W appeared at trial with an attorney who cross examined H’s witnesses. The court divided property and assessed attorneys fees of $14,000 against W. W appealed complaining of the death penalty sanctions, contending that she had insufficient notice and there was no hearing before the sanctions were imposed.

The COA ruled that while notice and hearing is required before sanctions may be issued, the AJ’s order provided sufficient notice that sanctions were a possibility and noted that the requirement for a “hearing” under TRCP 215.3 does not specify that the hearing must be “oral.” Based on the evidence of W’s failure to comply throughout the proceeding the COA determined that the sanctions were not an abuse of discretion. Affirmed.
Smith v. Deneve, 2009 Tex. App. LEXIS 4004 (Tex. App. – Dallas May 29, 2009) (Cause No. 05-07-1407-CV)
Steve and Mary began dating in 1991 and then started living together. They never formally married. In 1998 they moved into a house that Mary purchased in her own name. In 2003 they obtained a boat that Mary again took title in her own name. In 2005 they separated. Steve filed for divorce in 2005 and Mary filed a verified denial claiming the parties were never married. Mary filed a motion for summary judgment. Steve amended his pleadings to include claims for partition based on an implied non-cohabitation agreement as well as claims for constructive trust, dissolution of partnership/joint venture and quantum meruit. On summary judgment the trial court found no marriage. Mary filed a second motion for summary judgment on the remaining claims which was denied. Steve amended again adding a claim for a resulting trust and Mary filed a third motion for summary judgment. The trial court also held an evidentiary hearing on Mary’s request for attorneys fees. The trial court granted summary judgment ordering that Steve take nothing and awarded Mary over $42,000 in attorneys fees. Steve appealed.

As to the common law marriage claim the COA affirmed, finding no evidence to support the element of “holding out” noting that references to husband and wife in contracts that Mary was unaware of was insufficient to raise a genuine issue of material fact. As to the constructive trust claim the COA ruled that there was no evidence of the existence of a fiduciary relationship between the parties and that although they had a longstanding personal relationship, there was no evidence that Steve had consistently been guided by Mary’s judgment and advice, that she ever gave him financial advice, or that she otherwise assumed the role of a fiduciary to him, all elements which must be proven to establish a fiduciary relationship. As to the resulting trust claim, the evidence must establish that title to property was taken in one name while all or part of the purchase price was paid by another. In this case the evidence was conclusive that Mary purchased the residence solely with her own funds and in her own name but there was a question as to the funds used to purchase the boat and summary judgment as to a resulting trust upon the boat was reversed and remanded.

As to the partnership/joint venture issue the court had already determined that the residence was solely owned by Mary however Steve claimed that he contributed effort and funds to repair and maintain the property based upon what he claimed was the parties’ intent to fix up the house and sell it for a profit (attempting to meet the elements of a partnership operating for profit). Going through each element of a partnership the court found no evidence to support this theory and affirmed summary judgment. As to the quantum meruit claim, although Steve offered evidence which proved he worked to fix up the residence, there was no evidence that Mary knew he expected to be paid (an element of QM) and therefore summary judgment was also affirmed. Finally, Steve challenged the award of fees claiming that (1) Mary’s pleadings limited her claim for fees under Rule 13 and (2) the court could not award fees under TFC 6.708(a) because the court found no marriage. The COA found Mary’s pleadings general enough to support a request for fees outside Rule 13. Further the COA held that even though no marriage was ultimately found, the statute permits an award of fees in any suit where dissolution of marriage is requested and since Steve sought a divorce, fees were appropriate.
In the Matter of the Marriage of Hughes, 2009 Tex. App. LEXIS 3735 (Tex. App. – Amarillo May 29, 2009) (Cause No. 07-08-292-CV) (mem. opinion)
In December 2007 W filed suit for divorce alleging common law marriage and requesting a hearing for temporary orders. The court set a hearing for February 2008. H filed a response and requested the court to bifurcate the proceedings to require W to prove the marriage first. W filed a trial brief acknowledging that bifurcation may be ordered for a trial on the merits however she was only required to make a prima facie showing of common law marriage to be entitled to temporary orders for spousal support. H filed a trial brief asking the court to bifurcate the temporary orders hearing process. At the temporary hearing W began her case. After 18 minutes the court advised the parties that it was out of time and that they would need to get a date to continue the hearing. This date was set for two days later and at that time both parties testified. At the end of the hearing H asked the court to dismiss the case arguing that W had failed to meet her burden. The court took it under advisement and two days later ordered the W’s suit dismissed with prejudice. W filed a motion for new trial and requesting findings of fact. The court’s findings stated that a “trial” had taken place and that W failed to establish her claim of common law marriage “as a matter of law.” W appealed claiming due process violations because the court converted the temporary hearing into a trial without notice and further challenging the court’s finding that she failed to meet her burden of proof.

The COA held that the trial court committed reversible error in making a final common law marriage determination at the temporary hearing stage and without proper, mandatory notice of trial to W under TRCP 245. Reversed and remanded.
In the Interest of K.N.R., 2009 Tex. App. LEXIS 4045 (Tex. App. – Dallas June 1, 2009) (Cause No. 05-08-623-CV)
H and W were divorced in 2006 based on the terms of an MSA. The agreed decree appointed the parties JMC with W as primary. Four months later, H filed a modification seeking primary custody and included the required affidavit for filings within one year. (TFC 156.102) He also attached an affidavit of choice from one of the children. More than a year later the parties agreed to a reset of trial and just before trial H amended his pleadings to claim relief solely under TFC 156.101 (material and substantial change) and attached affidavits of choice from both children. At trial the court stated that he thought TFC 156.102 controlled the case (requiring a higher burden) because it was the statute under which suit had originally been filed and parties should not be allowed to file suit within the first year, then delay matters after the first year and amend their pleadings to escape the higher burden. The trial court denied H’s request finding that he had not met his burden under TFC 156.102 and stated that the court had also considered the case under the lesser standard of TFC 156.101 and that H had not met this burden either because in spite of the affidavits, H did not prove modification was in the children’s best interest. H appealed.

Unfortunately the COA did not address the issue of which statute should control in these situations because the trial court stated that it had considered the evidence under both standards and relief was not appropriate under either. The COA then conducted a review of the evidence and found no abuse of discretion. Judgment was affirmed. Comment: There is a significant difference between the burden of proof required in suits originated before and after the one year anniversary. A procedural dilemma is created when a suit is filed within one year (156.102) but not tried until after the one year anniversary (156.101) There are no clear answers (See 750 S.W.2d 367; 613 S.W.2d 668; and 2007 Tex. App. Lexis 5614). The Dallas Court missed an opportunity to offer a clear solution as presented by this case.
In the Interest of A.J.B and A.K.B., 2009 Tex. App. LEXIS 3839 (Tex. App. – Amarillo June 2, 2009) (Cause No. 07-08-362-CV) (mem. opinion)
The OAG recovered a judgment for past due child support against F in the amount of $86,000++. F appealed based on his claim to a right of offset because he continued to live with the mother and children after the divorce for a period of nine years and assisted in their support during that time. In a one page opinion the COA acknowledged that there was evidence in the record that F had supported the children but because there was no evidence of the amount of this support there could be no offset and because F failed to plead offset as an affirmative defense the issue was waived. Judgment affirmed.
Hernandez v. Hernandez, 2009 Tex. App. LEXIS 3817 (Tex. App. – San Antonio June 3, 2009) (Cause No. 04-08-709-CV) (mem. opinion)
Shortly after their marriage, H and W moved into a residence owned by W’s parents. They lived rent free for almost 12 years. In exchange they maintained the property and paid property taxes. W’s father died and the house passed to her mother. Sometime thereafter the mother transferred to the house to W by gift deed but retained a life estate. Later, W’s mother took out a $57K loan using the house as collateral. A portion of this money was used for improvements on the property and the balance was used to buy items benefitting H and W. H and W agreed to be responsible for the loan because it was taken for their benefit. During the marriage H made repairs to the house, added improvements such as new floors, improved kitchen and added a room. When the parties separated H filed for divorce and W filed a counterclaim, both alleging no fault grounds. The only issue in dispute was the property division. H testified that the house was worth $60K when they parties moved in and about $90K after his improvements. The court found the house to be W’s separate property and awarded it to her and denied H’s reimbursement claim. H appealed claiming that the trial court erred in failing to award him 50% of the equity in the house because its value had been enhanced with community funds.

The COA held that H failed to offer any evidence which established the net benefit to W’s separate estate and failed to offer any evidence of the offsetting benefit bestowed on the community, noting that the parties lived rent free for 12 years and enjoyed the benefits of the improvements while living there. Under these circumstances, denying equitable reimbursement was not error.
In re Blanton, 2009 Tex. App. LEXIS 4359 (Tex. App. – Houston [14th Dist.] June 4, 2009) (Cause No. 14-09-4359-CV) (mem. opinion)
W filed for divorce. The parties reached an agreement and appeared before the AJ for a prove up. There was no record. The docket sheet reflected “Evidence heard. Divorce Granted. Property division approved as per agreement (Exh.-A)” No exhibit A was filed. The docket sheet further set entry of judgment for a specified date. No entry occurred on that date. About a month later W filed a document repudiating the settlement. H filed a motion to enter judgment claiming that the AJ had rendered judgment on the parties’ agreement and W’s efforts to revoke were untimely. W filed a motion for non-suit which was granted. H filed a motion to set aside the non-suit which the trial court denied and denied H’s motion to enter. W filed a new divorce action which was given a new case number. H filed a plea to the jurisdiction claiming that the court lacked subject matter jurisdiction because of the prior rendition of divorce. The plea was denied and H filed for a writ of mandamus.

All of H’s arguments are based on his position that judgment was rendered. When the AJ was asked to review the docket and facts and address the question of whether or not she had “rendered” judgment she found that she had not. H relied on cases that held certain docket sheet entries were sufficient to evidence rendition but all were distinguishable because they involved not only a docket sheet but other evidence of rendition. In this case, the only evidence was the docket sheet which was held insufficient. H cited to TFC 101.026 which expressly permits rendition on the court’s docket sheet however the COA refused to extend this authority found in Title 5 to a Title 1 suit which did not involve children. Mandamus denied.
Zwick v. Zwick, 2009 Tex. App. LEXIS 3949 (Tex. App. – Fort Worth June 4, 2009) (Cause No. 02-08-182-CV) (mem. opinion)
H and W married in 1983 and had three children. They divorced in 2002. The agreed decree provided that they would jointly continue to make payments on the principal, interest, taxes and insurance on a community property residence during the pendency of a sale and that W would have exclusive use until closing. Upon sale the proceeds would be divided equally. The decree made no provision for periodic child support but found that H and W would have equal time with the children and share their expenses equally. In 2006 W filed a suit to modify seeking child support for the one remaining child under 18. W also requested review and clarification of the provisions of the decree relating to the payment for and maintenance of the residence. Alternatively she asked the court to review the amounts that each had paid thus far and adjust the equities because the house was about to be sold. When the house sold later in 2006 the parties could not agree on the division of profits and the proceeds were put into the registry of the court. By the time the suit went to trial the last child had reached 18 so the child support issue became moot. When the case was called for trial the court decided to appoint a master in chancery and attorneys for both parties agreed. The master was appointed and submitted his report and an order for fees which W objected to. At trial H and W both put on evidence of the payments they claimed to have made toward the house and the reimbursements they had paid each other. The court ordered the master paid from the registry funds and ordered the remaining funds to be split equally subject to an order requiring H to pay W the sum of $3700. W appealed to challenge the award of fees to the master from the registry funds because this had the effect of making her responsible for ½ the fees because she filed a timely objection.

The COA determined that because W’s counsel has agreed to the appointment of the master and the W’s objection was not filed before master performed services in reliance upon that appointment, it was not timely. W’s challenge to the sufficiency of the evidence supporting the credits given to H failed. W also complained that the court abused its discretion by giving her only 25 minutes to complete her entire case but the COA found that because she failed to object to the time limitation she waived error. Judgment affirmed.
In the Interest of S.M.V. and A.R.V. 2009 Tex. App. LEXIS 4144 (Tex. App. – Dallas June 10, 2009) (Cause No. 05-07-1733-CV)
H and W were married in 2003 and H filed for divorce in 2005. In the divorce proceeding W alleged that H was not the bio father of the child born in 2002. (There was another child who was not at issue in the appeal). The alleged bio father, V, intervened claiming paternity. The court signed an order severing the SAPCR and finding that the child born in 2002 was not H’s bio child. The severed suit was given a different cause number. V filed an original SAPCR in the severed suit requesting orders for custody, visitation and support. H filed a counter petition in the severed suit asking for SMC of the child and requesting that W and V be appointed PC’s and ordered to pay support. The two cases (the divorce and the severed SAPCR) were tried together before a jury. (Not sure why they even severed but oh well.) Prior to any witnesses being sworn, H’s attorney asked that all W’s pleadings regarding the child be stricken because they had been filed in the divorce cause number and that in essence this left her with no pleadings in the SAPCR cause number. The request was denied with the trial judge stating that she would not permit a trial by ambush. After the jury’s verdict the court rendered. W filed a motion to enter a proposed order and a motion to modify or correct judgment stating that it was error to adjudicate parentage but fail to change the children’s name to that of their biological father. H objected to the proposed order and the name change. The court overruled the objection and granted the name change and appointed all three adults as joint managing conservators of the one child born in 2002. H filed a MNT alleging newly discovered evidence that V had pled guilty to a felony drug possession charge and had been sentenced to 5 years in prison and further challenging the court’s decision to grant a name change. The court also signed an order requiring the clerk of the court to make duplicates of the pleadings in the divorce cause and file them in the SAPCR cause. H appealed. The COA found that TRCP 71 (misnomer of pleadings) applied to mother’s petition that contained the wrong cause number and that it was not error for the court to permit mother to proceed with her SAPCR claims as contained in her pleadings filed in the divorce cause.

The COA, in a case of first impression, examined the issue of good cause for a name change under TFC 160.636(e) and ultimately found that the name change was in the child’s best interest as supported by the evidence. As to the “newly discovered’ evidence the COA noted that V had been charged with a felony at the time of trial (which the jury was allowed to consider) and that he pled guilty afterwards. Because the plea and the conviction came after trial it was not “newly discovered” evidence but instead simply new evidence and did not meet the criteria for the granting of a new trial. Further the COA determined that the evidence was not so extreme that it warranted a new trial in the interest of justice in a child custody matter as authorized in C. v. C., 534 S.W.2d 359, 361 (Tex. Civ. App. – Dallas 1976, writ dism’d w.o.j.)
Thomas v. Piorkowski, 2009 Tex. App. LEXIS 4122 (Tex. App. – Corpus Christi June 11, 2009) (Cause No. 13-07-372-CV)
H and W divorced in 2004. The decree awarded wife 50% of the H’s “disposable retired pay” accruing between the date of marriage and the date the decree was signed, as a result of H’s service in the US Armed Forces, if as and when received. In 2006 H was placed on temporary disability retirement by the US Navy with a 30% disability rating. Thereafter H began receiving benefits. W filed a motion to clarify and enforce the decree, seeking her share of these benefits. H objected based on his claim that the benefits were based on a disability, equated to disability pay, and were not a part of his “disposable retired pay” awarded to W in the decree. The trial court heard the evidence and granted a clarifying order over H’s objection awarding W 50% of these benefits. H filed a motion for new trial and the court held an evidentiary hearing because by the time of the hearing H’s disability rating had increased to 80%. H asked that the clarifying order be set aside retroactively back to the date he began receiving disability benefits. The court denied the MNT and H appealed.

The COA found that the applicable definition of “disposable retired pay” expressly excludes temporary disability benefits [10 U.S.C.A. §1048(a)(4)(C)] of the kind being paid to H and the trial court erred in determining otherwise because disability benefits are not divisible marital property. Judgment Reversed and remanded.
Maib v. Maib, 2009 Tex. App. LEXIS 4135 (Tex. App. – Corpus Christi June 11, 2009) (Cause No. 13-08-413-CV) (mem. opinion)
H and W divorced in 2002. Pursuant to an AID, H was to pay W spousal support in the amount of $550 per week. In 2007 W filed a motion to enforce. H failed to appear for the hearing and the court issued a default judgment holding H in contempt, granting a judgment for arrearage and suspending commitment. H filed a notice of restricted appeal. Two months after this notice was filed, W filed her return of service with the district clerk. The return evidenced that H had been served by a private process server but the return was not verified. On appeal, H argued that there was error on the face of the record because the return of service had not been on file for 10 days at the time the default judgment was rendered.

The COA agreed, noting that there can be no presumption of valid service in a default situation and although the return was eventually filed, it was not timely in accordance with TRCP Rule 107 and it was not properly verified. Reversed and remanded.
Leax v. Leax, 2009 Tex. App. LEXIS 4199 (Tex. App. – Houston [1st Dist.] June 11, 2009) (Cause No. 01-08-149-CV)
H and W married in 2001 and moved into H’s home. The separated in 2007 while H was away on a cruise with his daughter from a previous marriage. While H was away on the cruise, W removed the majority of household items from the home and $33,000 from a shared bank account. W then filed for divorce alleging cruel treatment and sought a disproportionate division of property. In response to discovery from H, W disclosed that she had been previously married eight (8) other times. H filed an amended counter petition and sought an annulment based on fraud and seeking a disproportionate division of property. At trial H testified that while dating, W had admitted to being divorced twice and then admitted to a third divorce just before they married. H testified that if he had known W had been married 8 times before he would not have married her. W testified that she had told H about all of her prior marriages. The court granted the annulment and awarded H his home, all his retirement, all accounts in his own name and 50% of the joint accounts. W appealed. In a case of first impression the COA noted that there were no Texas cases articulating the proof needed to justify an annulment based on fraud. The COA set forth the elements of fraudulent inducement (as a type of fraud). The court noted decisions from other states which held that the failure to disclose a prior marriage was not considered fraud “extreme enough” to justify annulment, however here W failed to disclose five prior marriages and the trial court was permitted to believe H when he testified that W deceived him and therefore the evidence was sufficient to support annulment on the basis of fraud. W also challenged the trial court’s decision to let H testify about his property despite his failure to produce certain documents in discovery and his failure to comply with Harris County Local Rule 4.2 requiring the exchange of inventories and proposed property divisions 10 days prior to trial.

The COA noted that neither TRCP 215.2 or Local Rule 4.2 require the trial court to exclude testimony on a topic that has been the subject of a discovery order and that the court’s decision to allow H to testify as to his separate property was not error. The COA affirmed the division of property.
In re J.W.L., 2009 Tex. App. LEXIS 4647 (Tex. App. – Fort Worth June 15, 2009) (Cause No. 02-09-009-CV) (orig. proceeding)
H and W were divorced in 2000 and named JMC of their daughter. W had primary. They entered into one agreed modification order in 2004. In 2007 W and her parents (with W’s consent) filed a suit to modify asking that grand parents be given primary custody upon the W’s anticipated death. Ten days later W died. The day after her death, GP’s amended their petition and added the child’s step father as a party. Several months later GP’s and H entered into an agreed order. H was named SMC and GP’s were named as non-parent PC’s and given visitation rights. The agreed order contained no residency restrictions but required each party to give 60 days notice of any change of address. The parties operated under the order for about 7 months until the GP’s went to pick up the child for summer visitation and discovered the home abandoned. H had moved with the child to Idaho and given no notice. In addition, H had given GP’s misleading information that he had actually moved to Florida. Eventually the GP’s filed a writ of habeas corpus. H did not appear despite service. The court entered temporary orders awarding GP’s custody and giving H only supervised visitation. H eventually filed a special appearance, plea of forum non conveniens, answer, affirmative defenses, request for court to decline jurisdiction and special exceptions. H also filed a motion to vacate the order for return of the child. In October 2008 the court heard only the special appearance and denied it. The other matters were set for January 2009. At that hearing the court heard only the motion to vacate and H’s request for the appointment of counsel based on a claim of indigency, both of which were denied. The trial court gave H the opportunity to seek other relief at this hearing (i.e. visitation) but he did not pursue other relief. H filed a petition for writ of mandamus. H claimed that the habeas order was void because the underlying agreed order of modification between H and GP’s was void because GP’s lacked standing in that proceeding and their appointment as PC cannot support their right to proceed with a habeas corpus action.

The COA notes that H did not appeal from the agreed order but only sought to collaterally attack the order in the mandamus proceeding more than a year later. The COA found that the GP’s did have standing in the original suit because TFC §102.004(a)(2) allows standing for GP’s when a parent either files suit or consents to a suit by GP’s. In this case Mother filed the suit with the GP’s prior to her death and therefore the GP’s had standing. Mandamus denied.
In the Interest of A.B.P., 2009 Tex. App. LEXIS 4477 (Tex. App. – Dallas June 17, 2009) (Cause No. 05-07-1748-CV)
H and W divorced in 2005 when their child was two. W was named primary parent with the right to establish residence in Collin and contiguous County. H was ordered to pay $1000/month in child support, to provide health insurance and to notify W of any change in employment or cancellation of insurance. In 2006 H filed a motion to reduce support which was tried in late 2006 with the order being signed in early 2007, reducing support to $600/month. The court also found H had not insured the child and awarded W $1,120 as reimbursement for premiums she paid. Four months later, H filed a motion to modify seeking a change in custody based on a pattern or history of family violence by W. W filed a counter claim seeking to modify visitation so that she could designate an exclusive 3 week period with the child each summer prior to H’s summer designation. She also sought sanctions based on (1) H’s failure to notify her and the court that he got new employment after the prior modification trial but before the 2007 child support reduction order was signed and (2) he failed to notify W that he had insured the child which resulted in premiums being deducted from her pay unnecessarily. H filed an amended petition seeking custody but did not allege family violence. After trial the court removed the parties as JMC and appointed W as SMC; gave W the exclusive right to maintain the child’s passport; allowed W the right to designate her summer visitation before H, ordered child support of $1380/month, awarded sanctions of $11,000++ for violating the notice provisions of the decree and awarded W $15,000 in attorneys fees plus confirmed a prior award of $4,500 in fees. The court designated the $10,00 in fees “in the nature of child support” and the $4,500 in fees as child support arrearage. H appealed.

In findings of fact the trial court stated that H and W do not get along well enough to effectively parent as JMC’s and that it was not in the child’s best interest that they remain JMC’s. The court made no finding as to a material and substantial change. The COA concluded that there was legally insufficient evidence to establish the circumstances of the parties and the child at the time of the original order as compared with the circumstances at the time of trial and without this evidence a modification is improper. As to H’s issues regarding the 21 day summer designation by W, the sanction award and the classification of attorneys fees as child support the COA held that because H did not object when the trial court pronounced it’s ruling on these matters and because the H did not file a post judgment motion complaining about these rulings, he had failed to preserve error. The court affirmed these portions of the judgment but reversed and remanded the modification of custody.
Shahani v. Said, 2009 Tex. App. LEXIS 4547 (Tex. App. – Corpus Christi June 18, 2009) (Cause No. 13-08-438-CV) (mem. opinion)
H and W were married in New Mexico in 2004. In 2007 Corporation A and H, it’s sole sole shareholder, sued W in New Mexico for fraud and conversion. W answered and filed a counter claim for divorce. The New Mexico court entered temporary orders including orders for support. About a month later, H filed a suit for annulment in Texas. W filed a plea in abatement based on the New Mexico suit. W also filed a special appearance. Several months later the New Mexico court granted a divorce in an interlocutory order. One month later the Texas court granted an annulment and W appealed. W challenged the trial court’s refusal to abate because the principle of comity required Texas to yield to the suit first filed in Mexico.

The COA however held that comity is not required where the lawsuits involve different causes of action and different parties. The corporation was not involved in the Texas suit and further, New Mexico law did not permit annulment on the basis of fraud. As such, the Texas court was not required to abate. The COA noted that personal jurisdiction over W was not required to annul the marriage however the court went too far in the annulment order by providing that each party was awarded all property in their possession, so this portion of W’s complaint was sustained. W also argued that the evidence was insufficient to support an annulment but the COA held that H’s evidence that W married him for financial gain and as a means of staying in the United States on a marriage visa was sufficient to support fraudulent inducement. Judgment of annulment affirmed after order modified to delete all references to award of property.
In the Matter of B.B.M., 2009 Tex. App. LEXIS 4811 (Tex. App. – Dallas June 24, 2009) (Cause No. 05-08-501-CV)
M and F began dating in 2002 and then lived together. M gave birth to their first child in 2003 and the parties separated in 2004. M began living with another man when she discovered she was pregnant. M considered placing the child for adoption and discussed this with her boyfriend’s mother who knew of a couple out of state that wanted to adopt and gave M the number for LDS Family Services the agency working with the out of state couple. M contacted an agency social worker who asked about the baby’s father. M said she did not know where he was but provided his DOB and SS#. M then began working with a different agency representative who eventually got M to tell him how to get in touch with the baby’s possible father. Eventually F found out that M was about to give birth. His mother spoke with a social worker at the hospital and found out about the adoption. She advised the hospital that her son would not agree. The hospital advised the agency worker that F would not agree to the adoption. F attempted to contact M at the hospital several times the day before the birth but she refused to speak with him. After the baby was born M asked to be designated as a “no information” patient. The adoptive couple was present for the birth. The agency worker advised them that the potential F had not agreed to the adoption and that he had been calling the hospital. The adoptive couple signed a document acknowledging the risk that the birth parents would not relinquish custody and that the child could be removed from their possession at any time. M signed an affidavit of relinquishment but F was not contacted after the birth. The adoptive couple took the child to Idaho. Less than 30 days after the birth F registered under the Texas Paternity Registry. In addition, F contacted several attorneys, a father’s rights organization and the FBI, all seeking assistance in locating his child. The agency did not send a request for paternity registry information until two months later. More than a month after that the agency learned that the F may have filed and called the registry to discover this was true. At that point the agency worker sent a letter to F asking him to voluntarily terminate his parental rights and advising that if he did not sign there would be a hearing at which a request would be made for termination. Two days later LDS filed suit seeking termination of both parents. F filed a counter petition to establish parentage. Paternity testing confirmed F was the father. The adoptive couple intervened and sought termination, or in the alternative managing conservatorship. After a jury trial the jury refused to terminate F’s parental rights but awarded MC to the adoptive couple. The court signed and order to that effect and F appealed. On appeal F claimed that the adoptive couple failed to meet their burden to overcome the presumption that a parent should be awarded conservatorship absent evidence that such an appointment would significant impair the child’s physical health or emotional development. The adoptive couple’s focus was on the potential emotional trauma the child may suffer when removed from their care, the only parents he had known since birth.

The COA noted that this focus was misplaced because it should have been directed at whether placement with the father (not removal from the adoptive couple) would cause harm. The Dallas court declined to follow the San Antonio decision in Rodriquez, 940 S.W.2d 265 which suggested that removal of the child from the non-parent adoptive home would impair the child’s emotional development and affirmed appointment of non-parents as managing conservators. The Dallas court noted the strong presumption in favor of parents and the F’s efforts in this case to assert his rights to his child. Further the COA found that allegations regarding prior abuse by F against M and F’s inability in the past to support another child insufficient to overcome the presumption. The court affirmed the jury’s decision regarding termination and reversed the judgment regarding custody and remanded the issue for a new trial.
In the Interest of C.M.D., 2009 Tex. App. LEXIS 4785 (Tex. App. – Houston [14th Dist.] June 25, 2009) (Cause No. 14-08-113-CV)
M and F met in California, briefly dated and M returned to Texas where she discovered she was pregnant. The evidence offered before the court indicated that M notified F she was pregnant and that after the birth he called her and asked to come visit the baby which she agreed to but he never came. After 8 months of trying to be a single parent, M decided to place the child for adoption. LDS Family Services placed the child with an out-of state couple and brought suit to terminate parental rights based on a M’s affidavit of relinquishment and F’s failure to register under the Texas paternity registry within 30 days after the child’s birth. TFC 161.002(b). F was not served and LDS made no further efforts to locate him. He did not participate in the termination proceedings. The trial court refused to apply TFC 161.002(b) which permitted termination solely on the basis of a F’s failure to register within 30 days after birth, sua sponte declaring the statute unconstitutional. Thereafter the court did not terminate M’s rights but instead appointed LDS as managing conservators pending the anticipated appeal. The child remained in the care of the prospective adoptive couple and LDS appealed.

Initially the COA questioned it’s jurisdiction to consider the appeal based on its belief that the Attorney General had not received notice under TCPRC 37.006(b). Although LDS questioned the applicability of this statute (requiring notice to the AG when the constitutionality of a municipal ordinance is at issue) to a suit involving the constitutionality of a family code statute, LDS notified the AG when the appeal was perfected and provided the AG with a copy of the trial court’s order, it’s finding, relevant case law and eventually a copy of its appellate brief. The COA determined that whether or not the TCPRC statute applied, its requirements had been met and the COA therefore had jurisdiction to consider the case on the merits. The COA next considered whether a trial court has the authority to declare a statute unconstitutional sua sponte. The court held that generally a trial court does not have this authority unless such a determination is appropriate based on the importance of the statute at issue and the impact it may have on Texas citizens. In this case because of the importance of the State’s interest in protecting the integrity of the adoption process, the COA held that the trial court did have the authority in this situation to consider the constitutionality of the applicable statute sua sponte. Finally, the COA determined that a biological father does not automatically have full constitutionally protected rights based on a mere biological relationship and that he must assert his interest in asserting these rights in order to protect them. In this case the only evidence established that the alleged father knew about the pregnancy and birth in time to protect his interests but that he did not do so. In the absence of any evidence to the contrary, the presumption that the statute was valid and constitutional could not be overcome. The fact that there is no complaining father in this case distinguishes it from other decisions which have challenged the paternity registry scheme in other states. The COA held that the possibility that this father (or another father) could possibly be aggrieved is not sufficient to hold the statute unconstitutional either on its face or as applied. Trial court judgment reversed and remanded.