Mom and dad married in 1999 after meeting on the internet. Two children were subsequently born to the marriage. In 2002 the parties separated. Mom took the children and went to a women's shelter. Mom sought and received a protective order against dad. Dad was also arrested on criminal charges for assault. Dad received supervised visitation for about 6 months. Mom had dad arrested for violation of the protective order on two occasions, but dad was eventually cleared. Mom filed at least 2 complaints with CPS which were never substantiated. After divorce was filed the court ordered a social study and psychological evaluations. After a jury trial, dad was appointed as sole managing conservator and mom was appointed as possessory conservator. Mom appealed and challenged the sufficiency of the evidence.

The court of appeals affirmed finding that although there was conflicting evidence by the parties and the experts as to the best interest of the children, the jury was the judge of the credibility of the witnesses. The mom relied heavily on the finding of family violence in the protective order but the court of appeals noted that although TFC§153.004(f) requires the fact finder to consider the entry of a protective order within 2 years of the filing of suit, the statute does not make the existence of a protective order dispositive on the issue of conservatorship and the fact finder is entitled to consider the circumstances, the passage of time and any other explanations offered as to the events underlying the protective order.

In this grandparent access suit, mom and dad appeal from an order giving maternal grandparents rights of access to the grandchildren. The suit involves two children, both born of the same mother but different fathers. Mom and father of first child divorced and mom was appointed SMC and dad was PC. After the divorce, mom and the older child lived with maternal for a while until mom remarried. Mom and new husband had a child together. Relations between mom and grandparents went south after her remarriage and in 1998 grandparents filed a suit for access to their grandchildren. The parties were able to settle and an order was signed in August 1998 giving the grandparents limited visitation with both children throughout the year. At the time the order was signed, all parties, including the father of the oldest child, all lived in Texas. Very soon after the order was signed mom and her husband moved to Utah without telling grandparents. When they were located, mom and dad repeatedly denied visitation to the grandparents based on one excuse after another. Mom and dad then moved back to Texas in early 2000 but grandparents did not learn of this for several years. In 2003 grandparents filed a motion modify and vacate the agreed order. They also filed a motion for contempt and a suit for interference with their possessory rights. The father of the oldest child filed a suit to modify custody. After a jury trial the jury found in favor of grandparents and granted primary custody of the oldest child to her father. The trial court entered an order giving the grandparents significantly more visitation with their grandchildren, entered injunctions, ordered counseling and ordered the mom and dad to pay $50K in fees to grandparents and $50K in fees to the father of the oldest child. Mom and dad appealed, challenging the constitutionality of the former version of the grandparent statute.

The court of appeals held that the same public policy considerations which eliminate consideration of the parental presumption in modification proceedings between parents should apply in modification proceedings of grandparent access orders. The fact that the grandparents already had an order for visitation which had been agreed to meant the court could decide the issue solely on material and substantial change and best interest. Mom and dad also complained about submission of the grandparent access issue to the jury but the court of appeals found that under former TFC §105.002 the court had discretion to submit the issue. (This would no longer be the case under the current version of the statute). The court of appeals affirmed the judgment after overruling the mom and dads legal and factual insufficiency grounds as to the remaining issues.

Mom and Dad divorced in 2003. Mom was appointed SMC and Dad a PC. In late 2005 Dad filed a motion to modify. Three weeks before trial, paternal grandfather intervened requesting that his grandson be able to live with him in Kansas and the parents ordered to pay child support. Grandfather alleged that the retention of Mom as SMC would significant impair the welfare of the child. Mom filed a motion to strike the intervention in the absence of a motion for leave and further claiming the intervention was untimely. The trial court denied the motion to strike and conducted a bench trial after which the court appointed grandfather SMC and both parents as PC's. Mom appealed on the single ground that the trial court erred in failing to strike the intervention. Mom claimed that the grandfather's pleading failed to allege that appointment of dad as either SMC or JMC would significant impair the child's welfare and thus, the petition failed to meet the requirements of TFC §102.004(b).

The court of appeals affirmed stating that a petition in intervention must only make allegations directed to only one parent as SMC or both parents as JMC …. Which the grandfather did. Further, Mom did not challenge the trial court's findings relating to her severe alcoholism, use of illegal drugs, CPS recommendations for removal and a myriad of other issues which supported the trial court's decision to give grandfather custody.

In July 2007 the AG filed a c/s action relating to two children. In October the mom filed for divorce and the two actions were consolidated. The dad filed a counter petition and denied paternity of the children and requested paternity tests, asserting that another man claimed to be the father. All parties acknowledged that both children were born during the marriage and that both children were over the age of 4 when the divorce action was commenced. After hearing the AJ ordered testing but did not specify a date. AG and mom appealed to the presiding judge who affirmed the AJ. AG and mom sought mandamus relief asserting that testing should not be completed because Dad was the presumed father and was barred from denying paternity based on the 4 year SOL contained in TFC§160.607(a).

The court of appeals denied a requested stay of the testing because there was no threat of immediate harm as no date for testing had been specified. Thereafter the AJ signed another order requiring testing within 5 days. The AG and mom again appealed to the presiding judge who ordered the testing instanter. The AG and mom filed another motion to stay in the appellate court. That same day the court issued an order staying the testing and all matters connected with processing and analyzing any samples. This order was faxed to all attorneys and to the trial court. Thereafter, in violation of the COA order, the testing facility processed the results, prepared a report and sent it to the court and the parties. When the COA learned of this, they issued an order requiring the parties, their attorneys and the trial court to seal all copies of the reports and send them to the COA. The COA received some sealed reports while others received were not, including the one sent by the district clerk. In response to the mandamus proceeding, Dad argued that he should not be barred from denying paternity by the 4 year SOL because he claimed it should be tolled as a result of the Mom's fraud in failing to disclose to him her relations with another man. Despite these claims, father offered no evidence that he and mom had not lived together or engaged in intercourse with each other during the probable time of conception of either child and further no evidence that he had never represented to others that he was the father, as required by TFC §160.607(b). The COA determined that paternity testing may not be ordered if the proceeding to adjudicate parentage for a child with a presumed father is barred by the 4 year SOL and the party seeking testing produces no evidence of the exceptions (no intercourse, no holding out). The Dad argued that there should be no SOL on the truth and that the children are entitled to know who their real father is.

While the COA agreed, they found that this was a matter for the legislature to deal with and not a trial court. The COA determined that the order for testing was an abuse of discretion, and that the instanter order was arbitrary and unreasonable, granting mandamus. The COA issued extremely detailed orders for the destruction of the genetic samples, testing results, and basically entered gag orders for the discussion or use of the testing results by anyone for any purpose.

Husband and wife were married for 23 years with two children. Two years prior to divorce, husband started a new job and received a sign on bonus, 12,000 shares of company stock and options, a car allowance, country club membership, use of a vehicle and a hunting lease and an annual salary of about $130K. At the time of divorce husband was also scheduled to receive an incentive bonus of about $62K. Wife was an 18 year civil service employee who had reached her maximum grade for earning potential who was making about $70K annually. The court valued the community estate at about $1.7 million and awarded wife $1.2 or roughly 65%. The court ordered husband to pay $3100/month in c/s. As additional c/s the court ordered husband to purchase and maintain a separate car for each child; provide auto insurance for these vehicles, and reimburse wife for ½ of all expenses for the kids extracurricular activities. Husband appealed.

The COA affirmed the $3100 monthly c/s amount finding that although the amount was over the presumptive amount calculated under the statute, it was less than 100% of the proven needs of the children. The COA reversed the additional c/s amounts based on a determination that the auto insurance and extracurricular activity reimbursements would constitute a "double recovery" since these amounts had already been included in the evidence of the children's needs. Regarding the order to "purchase" cars, this too was reversed because the evidence suggested that one child already had a car or would be provided a car. Regarding the property division, the trial court had noted in its findings of fact the husband's own testimony regarding the disparity of the parties' earnings and the husband's belief that his wife should be awarded a disproportionate division. Husband challenged the characterization of stock options as community because he had to work after divorce to fully obtain his rights to exercise them. The COA determined that TFC §§3.007(d)-(f) did not apply as the case was tried before the statute was enacted and that since the options were acquired during marriage, even thought not fully vested at divorce, they were community property. Husband challenged the valuation of wife's retirement benefit, which the husband sought to have valued at the time of retirement but the COA held that the law was clear that valuation should be made at the time of divorce. The COA also denied husband's challenge to the overall award because the court found the evidence supported it.

Husband and wife married in 2000 and separated in 2005. There were no children. At trial the two main issues involved an engagement ring and husband's reimbursement claims for paying wife's pre-marriage debt. Regarding the ring, the parties told two completely different stories regarding the events surrounding their separation. Wife claimed there was an argument and that husband took off his wedding ring and gave it back to her and that she took off her engagement ring and gave it back to him in anger. Husband alleged that the parties calmly returned their respective rings to each other. The trial court awarded the ring to wife. The COA analyzed the elements of a gift and determined that the evidence did not support wife's intent to make a gift of the ring back to the husband. The trial court also denied the husband's reimbursement claims. The husband argued that this resulted in an unfair division of the property. The wife argued that in the absence of findings of fact, the record contained no values for the property awarded to each party or the overall community estate and therefore the husband could not make a proper analysis to sustain his burden for showing an abuse of discretion.

The COA agreed and affirmed the division. Comment: This case is a perfectly simple example of why findings of fact and conclusions of law are so important. If the values cannot be gleaned from the decree itself, and there are no findings, it is virtually impossible to formulate an abuse of discretion claim on appeal.

Dad appeals from an order granting possession and access of his three children to their grandparents. Mom and Dad divorced in 2004 and were named JMC of their 3 children. Mom began abusing drugs and Dad filed a motion to modify. Maternal grandparents intervened and sought access. The trial court entered temporary orders giving mom supervised access but she failed to exercise it. After trial the court appointed Dad as SMC, Mom as PC with supervised periods of possession and awarded the grandparents visitation. Dad appealed.

The COA reversed and rendered judgment denying access to the grandparents finding that because the mom had court ordered possession, even though she was not exercising it, the grandparents could not meet the statutory requirements of TFC §153.433(3). The COA did not reach the Dad's constitutional arguments.

Husband and wife divorced in 2003. Under the terms of an AID, husband agreed to pay spousal maintenance, including health insurance premiums and medication costs for wife. In 2006 Husband filed a motion to modify these terms because of a change in his financial position. The Wife moved for summary judgment asserting that the decree was a final judgment, the parties' agreement was final and not subject to revision by the trial court and no express conditions authorizing termination of the support had occurred. The trial court granted summary judgment and Husband appealed.

The COA held that when parties enter into a TFC §7.006 agreement which is incorporated into a decree, the agreement becomes binding on the parties, the court and is to be interpreted under general contract law. Under contract principles, a contract may not be avoided on the grounds that it has become too burdensome and further absent consent to modify, the court cannot modify or set aside a contract without proof that the agreement was procured by fraud, accident or mutual mistake. Since these allegations were not made, the trial court was without power to modify the contract and summary judgment was proper.

Paternal grandparents sought custody of their three grandchildren. Their son, the Dad, opposed the request. The court issued a docket control order setting a pre-trial conference and trial date. At the scheduled pre-trial conference on the Friday before trial, Dad appeared pro se with a motion for continuance alleging that he had obtained new counsel who could not be present for the pre-trial. The court denied the motion. At the pre-trial, grandparents counsel tendered their trial exhibits and their witness and exhibit lists as required under the court's docket control order. Joseph stated that he did not have his at that time. The trial court informed Dad that if he did not tender his exhibits that day or produce his witness list that he would be precluded from offering the documents or calling witnesses at trial. On the day of trial Dad's attorney attempted to offer a motion in limine which the trial court refused to hear because it had not been presented at the pretrial conference. New counsel also attempted to offer the Dad's trial exhibits and witness list but the court again ruled that the evidence would be excluded because the deadlines had not been met. Trial proceeded and Dad presented no witnesses other than his own testimony and no tangible evidence. While cross-examining one witness, Dad's attorney attempted to offer a CPS report that was on the grandparent's witness list but which they had not sought to admit. The court refused to allow Dad to use or admit the report because he had not timely tendered exhibits at the pre-trial conference. The jury returned a verdict naming grandparents as primary joint managing conservators and naming Mom and Dad as managing conservators. Dad filed a motion for new trial challenging the sufficiency of the evidence to support the jury's verdict and complaining of the unfairness of the trial court's rulings excluding his evidence.

The COA acknowledged that while a trial court may issues sanctions for violations of a pre-trial order, the sanctions must be just and appropriate, subject to the limitations imposed by TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991) (sanctions must have a direct nexus between the offensive conduct, the offender and the sanction imposed and sanction must not be excessive). Sanctions fail under the first prong if the party seeking sanctions can show no prejudice. The COA found that the grandparents could not show prejudice in failing to receive the exhibits and lists on Friday as opposed to Monday, particularly since the Dad sought to call only one witness other than himself. The COA also found the sanctions to be excessive because nothing in the record shows that the trial court first considered lesser sanctions or warned Dad in advance that failure to tender the lists and exhibits would result in exclusion of the evidence. Also, the COA found it hard to rationalize the sanctions with the legislative mandate that the best interest of the child should always be the court's primary consideration in determining issues of custody and possession and that the court cannot be well-informed about all the circumstances without all the evidence. The COA considered the sanctions to be in the nature of a "death penalty" sanction and found them to be excessive and noted that the harm to Dad was patent and "eviscerated" his ability to put on a defense. The COA reversed and remanded, noting that because Dad had also raised a legal insufficiency (no evidence) challenge to the jury's verdict, the COA was required to determine if "rendition" as opposed to "remand" was appropriate. Because the COA found that there was legally sufficient evidence to support a finding that the appointment of Dad as primary custody would significantly impair the welfare of the children (physical violence in the marriage, dad worked long hours, concerns regarding sexual abuse by dad) the court did not render but only remanded.

Husband and wife were married in June 1998. In October 1998 wife had a brief sexual relationship with Mr. Taylor while continuing to have relations with her husband. Wife gave birth to a child in June 1999 while the parties were still married and both believed the child to be Husband's. In 2001 the parties separated. Husband filed for divorce in Galveston County and sought custody of the child. The court issued standard temporary orders and appointed the parties JMC with standard visitation rights for each parent. Shortly after the divorce was filed, Husband received an anonymous call indicating that he might not be the child's father. He had genetic testing done which confirmed that Husband was not the biological father. Upon advising Wife, she had genetic testing done which determined the bio dad to be Mr. Taylor. Taylor initially petitioned for paternity but then in 2002 signed an affidavit of relinquishment and filed a motion to nonsuit. In August 2002 the child made an outcry of sexual abuse to the wife and named the husband as the offender. Wife moved to modify temporary orders. The court ordered psychological evaluations which were not completed until spring 2004. The reports substantiated the child's allegations and diagnosed Husband with extreme personality disorders. Wife and child moved to Houston and Wife obtained a protective order against Husband in the 311th court based on family violence. The protective order eliminated possession of the child by Husband and was extended in effect to 2009. In the Galveston paternity case the trial court limited evidence to those matters surrounding the child's paternity, the discovery of her true bio dad, etc. The trial court permitted some testimony on best interest issues but stated that this evidence would be considered primarily at a hearing scheduled for the following week. When counsel attempted to admit the Harris county protective order and asked the court to take judicial notice of it, the trial court determined it had no relevance.

In June 2006 the court signed an order establishing Husband's paternity finding that although he was not the biological father, Wife was equitably estopped from denying paternity and dismissed Mr. Taylor from the suit. In July the court signed a final divorce decree naming Husband and Wife as JMC's. Wife appealed. The COA discussed the elements of equitable estoppel: (1) false representation or concealment of material fact (2) made with knowledge of those facts (3) to a person without knowledge (4) with the intent that it would be acted upon and (5) the person relied upon it to their detriment. Hausman v. Hausman, 199 S.W.3d 38, 41 (Tex. App. - San Antonio 2006, no pet.) The COA further stated that in order to prevail, Husband had the burden to prove that it was in the child's best interet for him to be adjudicated the father.

The COA found that Husband did not carry his burden to establish the elements of equitable estoppels and further that the record contained abundant evidence that Husband was violent, unstable, had sexually abused the child, had an extensive criminal record, all supporting a finding that it was not in the child's best interest that he be named the father. The COA reversed and rendered judgment that Husband was not adjudicated as the child's father.

Husband and Wife married in Houston in 1991. The parties had one child. In 1999 Wife filed for divorce in Spain. A month later Husband filed for divorce in Texas. Both claims neither was served with the other's suit, although Husband appeared by attorney in the Spanish suit and Wife was served by publication in the Texas action. The Texas court granted a default divorce, divided property, appointed the parties JMC, ordered standard visitation and ordered Husband to pay child support. The Spanish court granted Wife sole custody, gave Husband no visitation and ordered him to pay child support. Four years after the Texas decree, Husband sought to enforce his visitation. Wife answered and collaterally attacked the decree claiming lack of personal or subject matter jurisdiction, citing the husband's UCCJEA affidavit filed at the time of divorce which admitted that the child had lived in Texas for only 25 days. Judge Jim York, who had heard the original divorce matter when he was the AJ, also considered the enforcement action and denied it finding that service on wife by publication had been improper because there was no ad litem appointed and no statement of evidence filed.

Husband appealed and the 14th COA reversed finding both personal and subject matter jurisdiction. Also the COA held that the default could not be set aside for lack of service after 4 years citing a 1961 Texas Supreme Court opinion. The COA noted that husband's affirmative filings acknowledged that the child had only lived in Texas for 25 days before suit was filed, but nevertheless, based on Husband's assertion that no record of the default trial existed because the court reporter had thrown away her notes, the COA engaged in a presumption that facts which supported jurisdiction might exist in the missing record. Thereafter, Wife hired new counsel who begged the court reporter to search harder which ultimately produced the notes and a record was filed with the appellate court. This record likewise supported the child's residence and home state in Spain. The COA issued a supplemental opinion but this time held that something missing from the Clerk's Record might support jurisdiction. The Texas Supreme Court reversed the COA stating that it was wrong for the COA to indulge in presumptions when the record affirmatively shows those matters to be untrue. Because the trial court lacked proper subject matter jurisdiction, it properly refused to enforce the default order. The Supreme Court reversed and rendered judgment dismissing the Texas enforcement action.