Mom and Dad were divorced in September 2005 and appointed JMC. Mom was given exclusive residency rights. Dad filed a MTM less than one year later, seeking the exclusive right to determine the child's residence based on a claimed material and substantial change. Dad also sought temporary orders based on his claims that Mom had been charged with public intoxication, came drunk to pick up the child and Dad did not know where Mom was living. Mom filed a motion to dismiss arguing that the pleading was defective in the absence of an affidavit required by TFC§156.102. Dad amended his pleading on May 9 and attached an affidavit. The trial court held a hearing on May 16 and denied Mom's motion to dismiss. The court heard evidence from several witnesses and ultimately granted Dad's MTM giving him primary custody. Mom appealed challenging the timeliness and sufficiency of Dad's affidavit.

The COA found that Dad's affidavit, filed exactly 7 days prior to trial, was timely under TRCP Rule 63. Further, the affidavit was sufficient to assert facts which suggested a possibility of harm to the child.

Comment: It appears that the court skipped the temporary hearing altogether and proceeded straight to trial. Although Mom was procedurally on the right track by filing the motion to dismiss, this should always be filed early in a case and diligently prosecuted as the court must make a preliminary determination under TFC§156.102 as to whether the movant is entitled to a hearing based on the strength of the affidavit.

The AG filed an original SAPCR in Webb County and served Dad. Dad responded and served Mom with a motion to transfer venue pursuant to TFC §155.201(b) based on his claim that the child had resided with him in Harris County for more than six months. A venue hearing was held before the AJ and Mom did not appear and had not filed a controverting affidavit as of the hearing date. The AJ granted the transfer. Several days later, the Mom filed her affidavit which was timely based on the date she had been served and Mom appealed to the presiding judge. Mom's affidavit stated that the child had resided with her in Webb County for ten months. At the de novo hearing, the presiding judge vacated the prior transfer order and denied the Dad's requested transfer to Harris County. Dad sought mandamus arguing that transfer was mandatory under the statute.

The COA determined that TFC §155.201(b) applied only to modification and enforcement actions and not to original SAPCR's. The COA determined that Dad was not entitled to a mandatory transfer based on the grounds asserted in his motion under TFC §155.201(b). The Dad also complained that the trial court erred in conducting the de novo hearing. The COA found that Mom's controverting affidavit was timely under the statute and that the presiding judge could have concluded that the AJ's ruling was premature. Mandamus denied.

Mom filed for divorce from Dad in June 2006. The court appointed the parties temporary JMC and gave Dad visitation rights. Maternal GPs filed a petition in intervention seeking custody in October 2006 and sought temporary orders. GP's intervention was based on GP's claim that Mom and Dad had relinquished custody to them for the requisite statutory period of 90 days before suit was filed. A TO hearing was held in November. All parties appeared but only the GPs had counsel. After hearing limited testimony, the court ordered a social study, set a hearing 10 days out and gave the GPs the right to establish the children's domicile until the next hearing date, stating that he was giving the parents time to hire counsel.

At the next hearing, everyone appeared. Dad had obtained counsel but Mom had not. At the conclusion of the temporary hearing, the court denied the GP's petition in intervention finding that the GP's had not met their statutory burden. About a month later the court divorced Mom and Dad, appointed them JMC's and named Dad primary parent. GPs sought FF/CL and filed a MNT which was overruled by operation of law. GPs appealed.

The COA concluded that GPs did not establish their standing to file an original suit because there had been no voluntary relinquishment by parents to GPs. Even though the children had lived with their grandparents, the mom (and sometimes even the dad) had also lived there and the evidence did not suggest that the parents stopped taking care of the children to the exclusion of the GPs during this period. Further, the COA determined that the GP did not meet their burden to intervene because the evidence further did not support a finding that the children's present circumstances could significantly impair their welfare. Interestingly the court looked at this issue both from the perspective of acts or omissions of the parents (i.e. alleged family violence and medical neglect) as well as from the perspective of potential harm if the children were removed from the GP's home and their relationship with the GPs. Lastly, the COA determined that since the GP's had no standing in the underlying suit, they could not complain on appeal regarding the ultimate custody determination because an appellant may not complain of a judgment to which he was not a party and in this case, the GPs were not parties to the ultimate custody determination.

Mom and Dad, unmarried, had a child in Mexico in 2000 and subsenquently moved to Texas. Mom, Dad and child purchased a home and lived together until October 2001 when they separated. Dad returned to Mexico and Mom and child remained in the U.S. until August 2004. The child regularly visited his father in Mexico. At that time, Mom and Dad agreed that the child would return to Mexico to live with Dad. From August 2004 to December 2005 the child lived in Mexico with Dad where he attended school, established ties to the community, had regular contact with extended family and friends and traveled the country with his father on weekends. In December 2005 Dad agreed that the child could travel to the U.S. to visit with his mother (who had remarried) for the holidays and the father provided the necessary travel documents.

Mom and her new husband picked up the child in early December and took him to the U.S. At the end of December, after she was back in the U.S., Mom advised Dad that she had no intention of returning the child to him in Mexico. In January, Dad traveled to the U.S. and filed a custody action in Webb County, Texas where the child was located. Subsequently, Dad learned about his rights under the Hague Convention from the Mexican Central Authority and in July he also filed (in the same cause number) an HC Petition and secured an order staying all proceedings.

In August the trial court conducted a final hearing on the HC action and determined that Mexico was the child's habitual residence prior to Mom's retention; that Mom's retention of the child breached the Dad's rights of custody under Mexican law; and that Dad was exercising his custody rights under these laws at the time of retention. The court rejected mom's jurisdictional challenge and defenses and ordered the child returned to Mexico. Mom removed the action to federal court to stop the child's return but this action was denied and remanded back to trial court. Thereafter the trial court awarded Dad $15,000 in attorney's fees, signed an order and issued findings. Mom appealed.

The COA determined that an HC petition may be filed as part of an existing action or may be brought as a separate suit. The COA also determined that Dad did not knowingly and intentionally waive his rights under the HC by first filing for custody in Texas because the evidence demonstrated that Dad did not know or learn of his HC rights until after the custody suit had been filed. After disposing of these to procedural issues, the COA determined that the evidence supported the finding of habitual residence in Mexico based on the length of the child's residence there and the substantial activities in which he engaged while living there. Second, the COA determined that the evidence was sufficient to establish that Dad had rights of custody under Mexican law because even though Mexican law gives custody of children to the mother when the parents are separated, the parties had agreed otherwise. The COA found the evidence sufficient to deny the Mom's affirmative defense of "consent" under the HC because Mom failed to tell Dad of her plans when she took the child and his consent for the child to travel was only for a brief visit and not to return to the US permanently. The trial court's decision was affirmed.

Comment: This case offers a thorough discussion of the Hague Convention terms, requirements, burdens and defenses and since reported "Hague" cases don't come along very often the is a good case to read and be aware of.

Mom and Dad divorced in April 2005. They were appointed JMC and each given the right to make educational decisions subject to the agreement of the other party. Dad was ordered to pay $1,025/mo in c/s. In February 2006 Dad filed MTM seeking exclusive right to make educational decisions. Mom countered with MTM seeking exclusive right, increase in c/s and attorneys fees. After trial the court awarded the right to make educational decisions exclusively to Mom, increased Dad's c/s by $121/mo and awarded Mom $5,000 in fees. Dad appealed and challenged sufficiency of evidence.

Dallas COA found that although there was evidence of living expenses for Mom and kids at time of modification, there was no evidence of living expenses for Mom and kids at time of divorce, therefore trial court could not compare circumstances to determine if change had occurred and if so, whether it was material. COA reversed c/s increase and rendered modification on this issue denied. COA found sufficient evidence of problems between parents over education to warrant grant of exclusive right to Mom and remanded attorney fee issue back to trial court in light of the decision to reverse c/s modification.

H and W entered into a binding mediated settlement agreement after a full day mediation where both parties were represented by counsel. Before a decree could be entered, W obtained new counsel and challenged the validity of the MSA based on a claim of mutual mistake. W alleged that at the time she signed the agreement, she was unaware that upon divorce, she would lose her medical coverage as the spouse of a disabled veteran and that had she known this, she would not have entered in to the agreement. The trial court heard testimony on the issue but found the agreement to be enforceable and entered a decree. The W filed a MNT which was overruled by operation of law. On appeal, W challenged the trial court's ruling on three grounds, 2 of which had not been preserved in the trial court.

In considering the final issue (that the MSA was substantively unconscionable) the COA acknowledged that while there are some defenses to the enforcement of a mediated settlement agreement, including illegality, fraud, duress, coercion, mistake or absence of meeting of the minds, the evidence in this case did not support any of these. The COA found that W had been represented by counsel at the time and that in all other respects the MSA met the statutory requirements and was properly enforced. Trial court judgment affirmed.

This decision stems from an interlocutory appeal consolidated with an original mandamus proceeding. H and W were divorced by an agreed final decree in March 2006. As part of the agreement a lake house was to be sold at a mutually agreeable price with the proceeds to be divided in a specified manner that had initial amounts being paid to W and the residual, if any, to be paid to H. In July 2006 the court entered an agreed protective order finding a threat of family violence and ordering H to communicate with W only through his attorney. In October 2006 W filed a motion for enforcement under TFC Chapter 9 and sought the appointment of a receiver to sell the lake house. H filed a general denial and a plea to the jurisdiction asserting that the court was without authority to modify the property division. A hearing took place in May 2007. The court considered evidence from both parties as to their inability to agree upon a listing price, the listing history of the property since the divorce, their beliefs as to why the property had not sold and their opinions as to what it would take to sell the property. The court received similar testimony from two realtors who further gave evidence of current market conditions and opinions on reasonable time frames to sell such a property. At the conclusion of the hearing the court appointed a receiver and ordered the property sole "as is" within 180 days. The court further awarded H $6,000 off the top of the sale as reimbursement for maintaining the property and precluded either party from having contact with the receiver.

In the appellate court, H argued that the court's order to appoint a receiver to sell the property "as is" within 180 days effectively defeated his property rights because his portion of the sales proceeds would, in all likelihood, be reduced and was therefore an impermissible modification of the decree. H also argued that the award of $6,000 to him for reimbursement was an impermissible modification. The COA initially analyzed how they should procedurally decide each issue, determining that the challenge to the receiver was the proper subject of the interlocutory appeal and the challenge to the $6,000 award was the proper subject of a mandamus.

The COA determined that the evidence was sufficient to support the appointment of a receiver as the parties were unable to communicate and agree on a sales price. Further, the COA recognized that H had agreed to a decree which did not guarantee him receipt of any proceeds, only what was left after payment of all amounts to W. In considering the 180 day time frame for sale imposed by the trial court, the COA noted that since the decree was agreed to, its construction was governed by the law of contracts and where no time for performance was specified, the determination of a reasonable time became a question of law. In light of the evidence regarding the state of the property, its unique nature and market conditions, the COA found that sale in the time specified was reasonable and affirmed the trial court's orders regarding the receiver. Regarding the $6,000 award to H as reimbursement, the COA found this to be an impermissible modification of the decree which made no such provisions and conditionally granted mandamus on this aspect of the trial court's order.