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DIVORCE PROCEDURE AND JURISDICTION

 

TRIAL COURT ERRED IN DISMISSING HUSBAND’S DIVORCE SUIT FOR WANT OF PROSECUTION WHERE DISMISSAL NOTICE FAILED TO PROVIDE HUSBAND WITH ADEQUATE NOTICE OF HOW TO AVOID DISMISSAL.

Roberts v. Roberts, No. 02-19-00223-CV, 2020 WL 6788194 (Tex. App.—Fort Worth 2020, no pet. h.) (mem. op.) (11-19-20).

Facts: Husband, who is an inmate, filed for divorce pro se. Thereafter, the trial court sent notice to Husband that the divorce suit had been placed on the dismissal docket and will be dismissed on a date and time certain unless good cause was shown for keeping the case on the docket or unless it had been tried or otherwise disposed of before then. The notice stated that “Failure to appear without excuse may result in dismissal of the case for want of prosecution or finalization of this matter. Any subsequent filings after the dismissal notice has been submitted WILL NOT remove the case from the dismissal docket. It will be necessary to contact the Court Coordinator if a case has subsequent filings OR your case will be dismissed. If a motion to retain is filed, as required by some courts, it must be filed and set for hearing prior to the dismissal date.” The notice had a special warning at the bot- tom for pro se parties: “This case has been on file for 60 or more days. It has neither been finalized, nor has a waiver been signed. There have been no citations issued on this case. If the case is ready to be finalized, you need to call the clerk...to schedule your court date. Failure to proceed before the dismissal date will result in the case being dismissed.” Husband did not respond to the dismissal notice, but the case was nonetheless retained on the trial court’s active docket. Instead, on the previously set dismissal date, the clerk sent a second, identical notice to Husband, setting the case for dismissal on another date and time certain. This time, Husband filed a let- ter asking the clerk for all documents needed to serve Wife by publication. The clerk’s office complied with Hus- band’s request by issuing citation. Thereafter, citation was served by publication and a return of service was filed. Nonetheless, the trial court dismissed the case 6 days later. Husband appealed.

Holding: Reversed and Remanded

Opinion: Husband argues that the trial court erred in dismissing his divorce suit. The second dismissal notice did not plainly require Husband to appear at a hearing or at trial. Husband was simply notified that his case would be dismissed “unless there is good cause for the case to be maintained on the docket” or the case was disposed of by then. Although Husband was cautioned in the next paragraph that “[f]ailure to appear without excuse may re- sult in dismissal of the case,” the connection between his duty to show cause, generally, and to show good cause at the date and time listed in the dismissal notice by appearing in person was not apparent. Moreover, whether Husband could avoid dismissal by filing a motion to retain was equally unclear, as the notice only stated that “some courts” require a motion to retain, not specifically his trial court. The special note to pro se parties at the bottom of the notice can be plausibly read to suggest that asking for citation to be issued – which Husband did – would suffice to avoid dismissal. Accordingly, under the unique facts of this case, the trial court erred in dismiss- ing Husband’s divorce suit.

TRIAL COURT DID NOT ACT ARBITRARILY IN STRIKING WIFE’S UNTIMELY AMENDED PETITION, WHILE NOT STRIKING PARAMOUR’S UNTIIMELY AMENDED MOTION FOR SUMMARY JUDGMENT, WHERE WIFE’S UNTIMELY AMENDED PETITION WOULD SURPRISE AND PREJUDICE PARAMOUR BUT PARA- MOUR’S UNTIMELY AMENDED MOTION FOR SUMMARY JUDGMENT DID NOT SURPRISE OR PREJUDICE WIFE.

Herschberg v. Herschberg, No. 13-19-00045-CV, 2020 WL 6788938 (Tex. App.—Corpus Christi 2020, no pet. h.) (mem. op.) (11-19-20).

Facts: Wife filed for divorce when she discovered that Husband was having an affair with Paramour. After years of contentious litigation, the divorce court entered a divorce decree. Husband and Paramour subsequently mar- ried and then Husband died years later. Wife then sued Paramour, alleging that during Husband’s probate pro- ceeding, foreign bank accounts were discovered that Husband failed to disclose during the divorce. Wife alleged that Husband and Paramour conspired to conceal these accounts during the pendency of the divorce. The trial court signed a pre-trial scheduling order, setting deadlines to, inter alia, file dispositive motions and amend plead-

ings. Paramour timely filed an MSJ, challenging several of Wife’s causes of action and seeking to establish her own affirmative defenses. Thereafter, after the deadline for filing dispositive motions had passed, Paramour amended her MSJ to include an affidavit in support of her request for attorney’s fees. The trial court granted Par- amour’s amended MSJ, but denied her request for attorney’s fees. Thereafter, after the deadline for amending pleadings had passed, Wife filed an amended petition, adding additional causes of action. Paramour subsequent- ly filed a motion to strike Wife’s amended petition, which the trial court granted. Wife appealed.

Holding: Affirmed

Opinion: Wife argues that the trial court abused its discretion when it struck her untimely amended petition. Wife concedes that her amended petition was untimely, surprising, and prejudicial; however, she contends that the trial court acted arbitrarily, because it accepted Paramour’s untimely amended MSJ, but struck Wife’s untimely amended petition. However, there is no authority supporting Wife’s proposition that, just because one party is ex- cused from meeting the deadlines established in a pre-trial scheduling order that both parties should receive the same treatment. Additionally, even if there were such authority, the trial court did not act arbitrarily. Although the trial court granted Paramour’s amended MSJ, it denied Paramour’s request for attorney’s fees. The only differ- ence between Paramour’s original MSJ and her amended MSJ was the addition of an affidavit in support of her request for attorney’s fees. Thus, Wife was not prejudiced by the trial court’s decision to accept Paramour’s un- timely amended MSJ. Conversely, it is undisputed that allowing Wife’s untimely amended petition would cause Paramour surprise and prejudice. Accordingly, the trial court did not abuse its discretion in striking Wife’s untimely amended petition.

TRIAL COURT PROPERLY DISMISSED DIVORCE SUIT UPON HUSBAND’S DEATH.

IMOMO Haight, No. 10-18-00324-CV, 2020 WL 7394664 (Tex. App.—Waco 2020, no pet. h.) (mem. op.) (12-16- 20).

Facts: During their divorce, Husband and Wife entered into agreed temporary orders, whereby Husband paid to Wife $28K per month in combined spousal and child support. Thereafter, Husband died while the divorce suit was still pending. After Husband’s will was admitted into probate, Wife filed a motion to enforce the agreed temporary orders as a contract pursuant to TRCP 11. Thereafter, the administrator of Husband’s estate filed a suggestion of death and a motion to dismiss the divorce, which the trial court granted without hearing. Wife filed a motion for new trial, which the trial court denied after holding a hearing thereon. Wife appealed.

Holding: Affirmed

Opinion: Wife first argues that the trial court erred in dismissing the divorce suit without notice and a hearing. However, when one party to a divorce suit dies, such as Husband here, the proper procedural disposition is dis- missal. Initially, the trial court did not hold a hearing before dismissing the divorce suit. However, when Wife filed her motion for new trial, the trial court held a hearing on the issue, which gave Wife the opportunity to be heard and present her evidence. As such, the trial court did not err in this regard.

Wife next argues that the trial court retained jurisdiction pursuant to TFC § 154.015, which provides that any unpaid child-support obligation is accelerated and becomes payable upon the obligor’s death. However, Wife never sought acceleration under § 154.015. Instead, Wife sought enforcement of the agreed temporary orders under TRCP 11, which is essentially a request for the trial court to enforce a contract between Husband and Wife. When Husband died, the cause of action for divorce and any incidental inquiries terminated. As such, the trial court did not err in dismissing the divorce suit despite § 154.015.

WIFE’S BREACH-OF-CONTRACT SUIT, WHICH AROSE OUT OF AN AGREED ORDER IN HER DIVORCE SUIT, IMPROPERLY BROUGHT AFTER HUSBAND’S DEATH.

Haight v. Fankhauser, No. 10-19-00016-CV, 2020 WL 7394343 (Tex. App.—Waco 2020, no pet. h.) (mem. op.) (12-16-20).

Facts: Wife filed for divorce. Agreed TOs were entered in the divorce suit, providing for monthly child and spousal support. Thereafter, but still during the pendency of the divorce suit, Husband died and his will was admitted into

probate. Wife sued the Administrator of Husband’s estate for breach of contract, alleging that the Agreed TOs were binding upon Husband’s estate. Wife also filed a plea in abatement and motion to transfer, arguing that the breach-of-contract claim should be heard by the divorce court. The trial court denied Wife’s plea in abatement and motion to transfer. During the probate proceeding, the trial court disclosed personal ties to Bank, who had pur- chased real property from Husband’s estate. Wife thereafter joined Bank as a party to the suit. The trial court again disclosed its personal ties to Bank and offered to sever the issues relating to Bank from the remaining is- sues, with the intent that the Bank-related issues would be heard by a separate judge. Wife filed a motion to recu- se several months later, which was denied. The trial court subsequently severed the Bank-related issues. Admin- istrator then filed an MSJ, asserting that Wife’s breach-of-contract claim arose out of the divorce suit, which had terminated. The trial court granted Administrator’s MSJ and dismissed Wife’s claim. Wife appealed.

Holding: Affirmed

Opinion: Wife first argues that the trial court erred in denying her motion to recuse. In her motion to recuse, Wife sought the trial court’s recusal based upon its personal ties to Bank. Although a motion to recuse is required to be filed “as soon as practicable” after the grounds for recusal become known, Wife’s motion to recuse was not filed until several months after the trial court disclosed its personal ties to Bank. Moreover, the trial court offered to – and did – sever the Bank-related issues from the remainder of the issues, effectively recusing itself as to those issues. Therefore, the trial court did not err in denying Wife’s motion to recuse.

Wife next argues that the trial court erred in denying her plea in abatement and motion to transfer. Wife’s argument in support of her plea in abatement and motion to transfer was that the divorce proceeding was filed first and involved the issues of child support and spousal support. Therefore, Wife argued, the trial court had dom- inant jurisdiction. However, when a party to a divorce suit dies, the proper procedural disposition is to dismiss the divorce suit. Accordingly, because the divorce suit effectively terminated on Husband’s death, the trial court did not err in denying Wife’s plea in abatement and motion to transfer.

Wife lastly argues that the trial court erred in granting Administrator’s MSJ. As previously discussed, a divorce suit terminates upon the death of either party. Therefore, the Agreed TOs in the divorce suit, from which Wife’s breach-of-contract claim arose, were terminated upon Husband’s death. Therefore, the trial court did not err in granting Administrator’s MSJ and dismissing Wife’s breach-of-contract claim.

NO INFORMAL MARRIAGE FOUND WHERE MAN AND WOMAN CONSISTENTLY REFERRED TO EACH OTHER AS BOYFRIEND/GIRLFRIEND, ACKNOWLEDGED IN TEXT MESSAGES THAT THEY WERE NOT MARRIED, AND ONLY EVIDENCE SUPPORTING AN AGREEMENT TO BE MARRIED WERE STATEMENTS EXECUTED FOR THE PURPOSE OF OBTAINING BENEFITS ONLY AVAILABLE TO SPOUSES.

Fuller v. DeFranco, No. 05-19-01203-CV, 2020 WL 6778408 (Tex. App.—Dallas 2020, no pet. h.) (mem. op.) (11- 18-20).

Facts: Man and Woman began dating in 2011. About a year later, Woman and her children moved into Man’s home, where they lived until Man and Woman broke up in 2016. Eventually, Man and Woman reconciled, and Woman and her children moved back into Man’s home in late 2016. The parties continued to live together until 2018, when Man and Woman broke up for the final time. Thereafter, Man sought a declaratory judgment that there was no informal marriage between himself and Woman. Woman filed a counterpetition for divorce, alleging that the parties were informally married. At final trial, Woman introduced into evidence a signed and notarized af- fidavit from 2015, prepared by American Airlines (Man’s employer), in which Man states that Woman is his ”do- mestic partner.” Man testified that he signed this affidavit so that Woman and her children would have access to his flight benefits and that he listed Woman as his “domestic partner,” instead of “spouse,” because they were not married. Also introduced into evidence were the parties’ respective tax returns from the relevant period, in which each party files as “head of household” instead of “married.” Additionally, numerous text messages between the parties were introduced into evidence in which the parties frequently refer to each other as “boyfriend” and “girl- friend,” but never as “husband” or “wife.” Furthermore, in several text messages, Woman affirmatively admitted that she is not married to Man. Text messages from 2017 indicated that the parties were planning a wedding cer- emony and intended to get married, but they eventually broke up before the wedding was to occur. Woman also introduced into evidence a military identification card that she received. Woman testified that she obtained the identification card, because she was married to Man, who was a U.S. Army Reserve officer, and that identification

DIVORCE INFORMAL MARRIAGE

cards were not issued to girlfriends. Man testified that Woman obtained the identification card only after he sent to the Army the American Airlines affidavit that listed Woman as his “domestic partner” and that he did so only after Woman and him engaged in a heated argument on the subject. He further testified that he sent the American Air- lines affidavit as a way of obtaining benefits for Woman without actually calling Woman his spouse. At the end of final trial, the trial court entered a declaratory judgment, finding that Man and Woman were never married. Wom- an appealed.

Holding: Affirmed

Opinion: Woman argues that the trial court erred in finding that the parties were not informally married. The rec- ord contains a considerable number of text messages between the parties that show that the parties consider themselves to be boyfriend/girlfriend and not spouses. In these text messages, Woman even admits several times that she is not married to Man. Furthermore, there are numerous text messages from 2017 that show the parties planning to have a wedding the following year – indicating that they were not married at the time. The parties’ tax returns also show that they did not file taxes as a married couple. Although there were several documents in which Man and Woman represented to be married and/or domestic partners (such as the American Airlines affi- davit and Woman’s military identification card), the trial court concluded that those documents were created for the purpose of obtaining benefits only available to spouses and did not reflect an agreement to be married. On this record, the trial court did not err in finding that the parties were not informally married.

CRUEL-TREATMENT FINDING PROPER WHERE HUSBAND WAS PHYSICALLY AND EMOTIONALLY ABUSIVE AND WIFE BECAME STRESSED AND PHYSICALLY ILL AS A RESULT. FURTHERMORE, EVI- DENCE SUPPORTED TRIAL COURT’S AWARD OF 2/3s OF THE COMMUNITY ESTATE TO WIFE.

Hamilton v. Hamilton, No. 02-19-00211-CV, 2020 WL 6498528 (Tex. App.—Fort Worth 2020, no pet. h.) (mem. op.) (11-05-20).

Facts: At final trial in their divorce suit, Wife testified that her marriage to Husband started to fall apart when his business partnership went bad. Wife testified that Husband began to focus on his various lawsuits and became verbally abusive, cantankerous, and unrelenting, making it “almost...unbearable to live with him” and causing her to become stressed and physically ill on multiple occasions. Wife asserted that Husband had called her a sling of pejoratives and accused her of cheating, which she denied. Wife further asserted that Husband had been physi- cally violent to her 4 or 5 times during their marriage, including once during the pendency of the divorce suit. Wife further testified that, at the time of final trial, she was unemployed, whereas Husband was employed. Wife also testified that she had stomach problems resulting from prior illnesses that required hospitalization and that she also suffered from migraines, back issues from a car accident, and dental issues. There was also evidence that Husband had sold the couples’ prior house and spent the proceeds without telling Wife. Finally, Wife testified that she wanted Husband to pay a share of her attorney’s fees, because she felt that Husband had unnecessarily pro- longed the divorce process. At the conclusion of final trial, the trial court granted a divorce to Wife on the ground of cruel treatment and awarded Wife approximately 2/3s of the community estate. Husband appealed.

Holding: Affirmed

Opinion: Husband first argues that the trial court abused its discretion in granting a divorce to Wife on the ground of cruel treatment. At final trial, Wife described Husband emotionally withdrawing from the marriage. While they still lived together, Husband engaged in what the trial court could have viewed as verbal abuse and relentless ha- ranguing to the point that Wife became stressed and physically ill. Husband also engaged in physical abuse on several occasions, such that physical abuse, even if rare, was within the dynamics of Husband and Wife’s rela- tionship. As factfinder, the trial court was entitled to believe Wife’s testimony and find that Husband’s behavior toward Wife went beyond typical squabbling. As such, the trial court did not abuse its discretion in finding cruel treatment on this record.

Husband next argues that the trial court abused its direction, because its property division was not “just and right.” Here, the trial court awarded to Wife approximately 2/3s of the community estate. Although this is a disproportionate share, there was ample evidence to support the trial court’s property division. As discussed above, the trial court found Husband guilty of cruel treatment. Additionally, Husband spent the proceeds from the

DIVORCE GROUNDS FOR DIVORCE

sale of the couples’ prior house without telling Wife, which the trial court could have considered waste. There was also evidence that Wife had numerous medical issues that would support a disproportionate award of the com- munity estate. Wife was also unemployed at the time of final trial, whereas Husband had a job, meaning that Wife had a greater need for future support. Lastly, Wife testified that Husband had unnecessarily prolonged the di- vorce, which the trial court was within its discretion to believe. As such, the record contains sufficient evidence to support the trial court’s property division.

TRIAL COURT PROPERLY REFUSED TO SET ASIDE MEDIATED SETTLEMENT AGREEMENT WHERE EV- IDENCE DID NOT SUPPORT HUSBAND’S ARGUMENT THAT HE SIGNED THE MEDIATED SETTLEMENT AGREEMENT UNDER DURESS ARISING OUT OF HIS CRIMINAL PROSECUTION FOR THREATENING WIFE.

Choksi v. Choksi, No. 09-19-00183-CV, 2020 WL 6787410 (Tex. App.—Beaumont 2020, no pet. h.) (mem. op.) (11-19-20).

Facts: One night, Husband threatened Wife with a firearm. Wife called the police, who arrested and charged Husband with making a terroristic threat. The next morning, Wife filed for divorce. Eventually, the parties went to mediation, which resulted in the signing of an MSA. Notably, almost a year passed between Husband’s arrest and the date of mediation, but was still being criminally prosecuted at the time of mediation. The MSA, in relevant part, stated that “[e]ach signatory to this Agreement has entered into the settlement freely and without duress...” and that the parties “signed voluntarily and with the advice and consent of counsel...” At mediation, Husband request- ed that Wife sign a letter detailing the events leading to his arrest, which he wished to use to help dismiss his criminal charges. After some negotiation on the form of the letter, Wife signed the letter along with the MSA. Thereafter, Wife moved for entry of judgment based on the MSA. At the hearing on the motion for entry of judg- ment, Husband claimed that he was forced to sign the MSA due to the looming threat presented by his criminal charges, which interfered with his ability to consider the advice he was given by his attorneys. Husband, who was a physician, claimed that he had lost the ability to practice at several hospitals as a result of his criminal charges, which had affected his ability to make a living. Husband further claimed that Wife used the continued threat of criminal prosecution against him to gain substantive advantage over him in the divorce suit, although he was una- ble to specify exactly how Wife did so. Husband also claimed that Wife reported his arrest to the Texas Medical Board, which threatened his ability to maintain his medical license. Husband conceded, however, that he never directly spoke to Wife or her attorney during mediation. Wife testified that she, nor anyone on her request, notified the Texas Medical Board or any hospitals about Husband’s criminal prosecution. Following the hearing, the trial court granted Wife’s motion for entry of judgment and signed the proposed divorce decree. Husband appealed.

Holding: Affirmed

Opinion: Husband first argues that the MSA is unenforceable, because it was procured by duress (namely, the threats of criminal prosecution against him). Notably, the criminal prosecution against Husband began almost a year before mediation took place. Although Husband argues that Wife refused to drop the criminal charges against him unless he agreed to her proposed property division, the record shows that it was Husband who in- jected that issue into the negotiation process by bringing a letter for Wife to sign relating to Husband’s criminal prosecution. Husband also never directly communicated with Wife or her attorney during mediation. Wife also disputed that she contacted the Texas Medical Board or any hospitals regarding Husband’s criminal prosecution. Furthermore, once Wife called the police initially, any criminal prosecution was out of her hands and the threat of prosecution no longer emanated from Wife, but rather from the District Attorney’s Office. A threat from a third par- ty who has no involvement with a contract, such as the District Attorney’s Office here, cannot give rise to a claim for duress. As such, the trial court did not abuse its discretion in refusing to set aside the MSA based upon Hus- band’s claim of duress.

DIVORCE ALTERNATIVE DISPUTE RESOLUTION

AWARD OF REIMBURSEMENT TO HUSBAND FOR REPAIRS MADE TO RESIDENCE DID NOT CONFLICT WITH PRIOR-EXECUTED MEDIATED SETTLEMENT AGREEMENT, BECAUSE RESIDENCE NOT YET DAM- AGED WHEN EXECUTED.

Brackin v. Brackin, No. 09-19-00079-CV, 2020 WL 7755689 (Tex. App.—Beaumont 2020, no pet. h.) (mem. op.) (12-30-20).

Facts: Wife filed for divorce, after which the parties entered into an MSA providing for the division of the commu- nity estate. In relevant part, the MSA provided for a 50/50 division of the sales proceeds from the sale of several rental properties owned by the parties and listed values next to each of these rental properties. Thereafter, a hur- ricane damaged the parties’ marital residence and Husband received a payout from their insurance company for the damage. Wife filed a motion to divide undivided assets, requesting division of the insurance payout. At the hearing thereon, Wife testified regarding the insurance payout and further testified that Husband had sold their rental properties at a “highly reduced rate” compared to the values listed in the MSA. Wife believed she was enti- tled to 50% of the values listed in the MSA next to each of the rental properties. Husband testified that he sold the rental properties for the highest price he could get and that the values listed on the MSA were simply from the county tax rolls. With respect to the marital residence, Husband testified that he had to spend approximately $25K out of pocket to finish the repairs. Husband introduced into evidence several documents showing these expenses incurred. In its divorce decree, the trial court divided 50/50 the insurance payout on the marital residence, less approximately $25K to be reimbursed to Husband for repairs to the marital residence, and the sales proceeds from the sale of the rental properties. Wife appealed.

Holding: Affirmed

Opinion: Wife first argues that the trial court erred in altering the terms of the MSA by awarding Husband a reim- bursement of approximately $25K and by not reforming the sales prices of the rental properties. With regard to the reimbursement award, the hurricane had not yet damaged the marital residence at the time of the MSA. Therefore, the terms of the divorce decree that deal with reimbursing Husband for the out-of-pocket costs for the repairs he made on the marital residence cannot possibly conflict with the terms of the MSA. With regard to the sales prices of the rental properties, the MSA does not state that the values listed on the MSA would be the only values considered, nor does it state that Wife would receive half of the listed amounts, provide for any particular valuation date, or state that the properties would be listed for sale at the values listed in the MSA. Therefore, the trial court did not err in awarding Wife half of the sales proceeds from the sale of the rental properties without re- forming the sales prices to reflect the prices listed in the MSA.

Wife next argues that there is no evidence to support the trial court’s award of $25K in reimbursement to Husband. However, Husband testified to the amount of the expenses he incurred repairing the marital residence and introduced into evidence documents showing the expenses he incurred repairing the marital residence. As such, the trial court’s award of $25K in reimbursement to Husband was supported by evidence.

WIFE’S SUIT FOR POST-DIVORCE DIVISION OF PROPERTY, FILED 20 YEARS AFTER DIVORCE, NOT BARRED BY RES JUDICATA OR THE STATUTE OF LIMITATIONS.

Evans v. Jones, No. 11-19-00008-CV, 2020 WL 7414162 (Tex. App.—Eastland 2020, no pet. h.) (mem. op.) (12- 18-20).

Facts: Husband and Wife divorced in New Mexico in 1988. The parties’ divorce decree contained provisions re- garding dissolution of marriage, child custody, and child support; however, it contained no provisions regarding the division of the parties’ property. Years later, Wife filed a suit in the New Mexican trial court, enforcing child- support, alleging that the divorce decree failed to divide certain property, and requesting a division of said proper- ty. Husband filed a motion to quash, in which he alleged that the New Mexican trial court lacked jurisdiction, be- cause certain matters were pending in Texas that involved the parties’ children. The trial court denied the motion to quash as it related to the division of the parties’ property. Husband thereafter filed a motion to dismiss, alleging that suits for post-divorce division of property must be brought in a separate action. The New Mexican trial court granted the motion and dismissed Wife’s suit. Over a decade later, Wife filed a suit for post-divorce division of property in the Texas trial court. Husband filed an MSJ, alleging that Wife’s claims were barred by the doctrine of

DIVORCE PROPERTY DIVISION

res judicata and the statute of limitations. The trial court granted Husband’s MSJ and dismissed Wife’s suit. Wife appealed.

Holding: Reversed and Remanded

Opinion: Wife argues that her suit is not barred by the doctrine of res judicata. The TFC provides that, where the court of another state (here, New Mexico) fails to divide property in a divorce decree even though the state had jurisdiction to do so, the other state’s law applies to a suit for post-divorce division of property filed in Texas. Un- der New Mexican law, property not divided in a divorce is owned by the parties as tenants in common and the division thereof can be accomplished by initiating a separate suit for post-divorce division of property. Res judica- ta does not apply to Wife’s claim, because suits for post-divorce division of property have specific statutory au- thority and, if res judicata were applicable to such suits, the statutes providing for them would be essentially meaningless. Moreover, there has been no division of the parties’ property and no independent suit for post- divorce division of property had been filed until Wife filed the one that is the subject of this appeal. Therefore, the doctrine of res judicata does not apply.

Wife next argues that her suit is not barred by the statute of limitations. Because statutes of limitation are procedural, the statutes of limitations of Texas apply. The TFC provides that a suit such as this one must be filed before the 2nd anniversary of the date “a former spouse unequivocally repudiates the existence of the ownership interest of the other former spouse and communicates that repudiation to the other former spouse.” However, there is no unequivocal revocation by Husband in the summary-judgment evidence here. To the contrary, Hus- band’s opposition to Wife’s claims has always been procedural in nature, not in the nature of a repudiation of her interests. Therefore, the statute of limitations does not bar Wife’s suit.

TRIAL COURT ERRED IN ENTERING NUNC PRO TUNC DIVORCE DECREE AWARDING TWO CONTIGU- OUS LOTS TO HUSBAND WHERE ORIGINAL DIVORCE DECREE ONLY AWARDED ONE LOT AND NO EV- IDENCE PRESENTED THAT TRIAL COURT ACTUALLY RENDERED JUDGMENT AS TO BOTH LOTS BE- FORE SIGNING ORIGINAL DIVORCE DECREE.

Diaz v. Diaz, No. 04-19-00767-CV, 2020 WL 6597536 (Tex. App.—San Antonio 2020, no pet. h.) (mem. op.) (11- 12-20).

Facts: During their marriage, Husband and Wife jointly owned real property located at 3215 South Flores St. The deed conveying this property to Husband and Wife described the land as “Lots 8 and 9,” but did not specify the property’s address. Lots 8 and 9 are contiguous and there are no physical structures separating the lots. When the parties divorced, their divorce decree awarded to Husband “[t]he property and all improvements located thereon at Lot Eight (8)...and more commonly known as 3212 S. Flores St....” Accordingly, Wife executed a deed conveying the property to Husband, in which the legal description of the property mirrored the language in the divorce decree. Eventually, Husband discovered that the divorce decree and subsequent deed did not convey Lot 9 to him, nor did they accurately describe the address of the property. Husband filed a motion for judgment nunc pro tunc, requesting the divorce decree to be corrected to accurately convey both lots to him. In response, Wife argued that Lot 9 had not been properly disposed of in the divorce decree. After a hearing, the trial court granted Husband’s motion for judgment nunc pro tunc and signed a nunc pro tunc divorce decree that listed the property awarded to Husband as “the property and all improvements located thereon at Lot Eight (8) and Nine (9)...and more commonly known as 3215 S. Flores St....” (emphasis added). Wife appealed.

Holding: Affirmed in Part; Reversed and Remanded in Part

Opinion: Wife first argues that the trial court had no evidentiary or jurisdictional basis for correcting the address of the property. The divorce decree originally awarded to Husband property located at 3212 South Flores St., but there is no evidence that the parties ever owned property located at 3212 South Flores St. To the contrary, the parties both concede that they owned property located at 3215 South Flores St., which the divorce decree dis- posed of, at least in part. As a result, the evidence supports the trial court’s implied finding that the divorce decree actually rendered judgment disposing of 3215 South Flores St., not 3212 South Flores St. Furthermore, this was a

DIVORCE ENFORCEMENT OF PROPERTY DIVISION

mere clerical error that did not require judicial reasoning or determination and could therefore be corrected through a judgment nunc pro tunc. Therefore, the trial court properly corrected this error.

Wife next argues that the trial court had no evidentiary or jurisdictional basis for correcting the legal de- scription of the property. While Husband contends that the property located at 3215 South Flores St. has always consisted of Lots 8 and 9, the divorce decree only explicitly disposes of Lot 8 and there is no evidence that the trial court rendered judgment disposing of both lots in the original divorce decree. Because there was no evidence that the trial court actually rendered judgment on Lot 9 prior to or by signing the divorce decree, the trial court erred by amending the divorce decree nunc pro tunc to include Lot 9.

MATERNAL GRANDMOTHER’S AFFIDAVIT INSUFFICIENT TO CONFER STANDING IN GRANDPARENT- ACCESS CASE WHERE FACTS IN AFFIDAVIT DID NOT RISE TO LEVEL OF “SIGNIFICANT IMPAIRMENT,” BUT MERELY REFLECTED FRUSTRATION, ANGER, AND SADNESS AT LACK OF ACCESS TO CHILD.

In re H.L., ___ S.W.3d ___, No. 02-20-00143-CV, 2020 WL 6601604 (Tex. App.—Fort Worth 2020, no pet. h.) (11-12-20).

Facts: Child’s Maternal Grandparents filed suit for possession of and access to Child in the midst of a suit to ter- minate Mother’s parental rights. In the affidavit attached to their petition, Maternal Grandmother stated that Moth- er and Child lived at her residence for about a year after birth before moving away and that she had helped take Child to daycare and to doctor’s appointments until the fall of 2014, when Child was removed from Mother’s care by TDFPS. Maternal Grandmother’s affidavit further stated that, for a few months after removal, Child’s Managing Conservators, the paternal grandparents, allowed her to have access to Child one Saturday per month. Eventual- ly, the affidavit stated, these visits diminished in frequency until, in 2017, Maternal Grandmother was only allowed to see Child 3 times during the entire year. Maternal Grandmother’s affidavit recounted that she had not seen Child since Christmas 2017 and that Child’s Managing Conservators seemed to have a great deal of animosity towards her and Maternal Grandfather now. Lastly, Maternal Grandmother’s affidavit stated that Child asks when she will get to see Maternal Grandparents again, that Child has cried due to being unable to see Maternal Grand- parents, and that Maternal Grandparents believe that Managing Conservators’ denial of access to Child is signifi- cantly impairing Child’s physical health or emotional well-being. Managing Conservators filed a motion to dismiss Maternal Grandparents’ suit for lack of standing. The trial court denied Managing Conservators’ motion to dismiss and awarded Maternal Grandparents access to Child. Managing Conservators appealed.

Holding: Reversed and Rendered.

Opinion: Managing Conservators argue that the trial court erred in denying their motion to dismiss, because Ma- ternal Grandmother’s affidavit did not provide adequate facts to establish standing under TFC § 153.432(c). Man- aging Conservators are correct, because Maternal Grandmother’s affidavit set forth no facts to support her allega- tion that the denial of possession of or access to Child would significantly impair Child’s physical health or emo- tional well-being. At best, they reflect frustration, anger, or perhaps a lingering sadness, but there are no facts in Maternal Grandmother’s affidavit that rise to the level of significant impairment. Accordingly, Maternal Grand- mother’s affidavit was insufficient and the trial court erred by denying Managing Conservator’s motion to dismiss.

TRIAL COURT DID NOT ERR IN DISMISSING ALLEGED FATHER’S PATERNITY SUIT FOR WANT OF PROSECUTION WHERE IT PROVIDED HIM WITH SUFFICIENT NOTICE OF DISMISSAL DATE AND REQUI- SITE STEPS TO AVOID DISMISSAL AND YET ALLEGED FATHER TOOK NO STEPS TO AVOID DISMISSAL.

In re L.R., No. 02-19-00377-CV, 2020 WL 6788933 (Tex. App.—Fort Worth 2020, no pet. h.) (mem. op.) (11-19- 20).

Facts: Father, an inmate, filed pro se to establish his paternity of Child. Thereafter, the trial court’s coordinator notified Father that the case would be placed on the dismissal docket. Father responded to the coordinator, re- questing more time “to pursue this matter further.” The coordinator replied, informing Father that his case would be removed from the dismissal docket, but advising him that his case would be dismissed if it had not been final- ized by a date certain. Thereafter, the trial court signed an order requiring Father and Child to provide DNA sam-

SAPCR PROCEDURE AND JURISDICTION

ples for paternity testing. Several weeks later, Father asked the coordinator for the status of his case and re- quested a copy of the trial court’s docket sheet. The coordinator notified Father that his case was “pending” and that the trial court had previously ordered DNA testing. After Father notified the coordinator three times that he had not had a DNA sample taken, the trial court judge informed Father that, because his suit was a “private pro- ceeding” not involving the OAG, she was unaware how to obtain a DNA sample from him. Several months later, the trial court placed the case back on the dismissal docket and warned Father that it would be dismissed for want of prosecution on a date certain unless Father showed good cause to maintain the case on the trial court’s active docket or unless the case “ha[d] been tried or otherwise disposed of by order of the [trial c]ourt.” Father did noth- ing for the remainder of the suit’s pendency other than ask the coordinator for an update on the status of his pa- ternity testing. Thereafter, the trial court dismissed Father’s suit for want of prosecution. Father appealed.

Holding: Affirmed

Opinion: Father argues that the trial court erred in dismissing his suit for want of prosecution. When the trial court sent out its second notice that Father’s case had been placed on the dismissal docket, it provided Father with no- tice of what needed to be done to avoid dismissal. Namely, the trial court warned Father that his case would be dismissed for want of prosecution unless he showed good cause to maintain the case on the trial court’s active docket or unless the case “ha[d] been tried or otherwise disposed of by order of the [trial c]ourt.” Father did noth- ing in response to this warning other than to ask the coordinator for a status update.

Father next argues that his due-process rights were violated by the trial court’s failure to hold an in- person hearing before dismissing his case. Father was given notice of a specific day and time by which he was required to “appear” to show cause to keep his case on the trial court’s active docket, and he was warned that failure to do so would result in dismissal. The trial court’s notice satisfied any requirement that Father be given an opportunity to be heard before dismissing his case for want of prosecution.

TRIAL COURT ERRED IN NOT DISMISSING GRANDPARENTS’ SUIT WHERE THEIR SUPPORTING AFFI- DAVIT STATED THAT THEY HAD ONLY HAD ACTUAL CARE, CONTROL, AND POSSESSION OF CHIL- DREN FOR APPROXIMATELY FIVE MONTHS PRIOR TO FILING SUIT.

In re B.U.H., No. 13-18-00622-CV, 2020 WL 7074358, 2020 WL 7063299 (Tex. App.—Corpus Christi 2020, no pet. h.) (mem. op.) (12-03-20).

Facts: On June 16, Maternal Grandparents filed a petition seeking custody of Children and alleging that Mother and Father were neglecting Children. Maternal Grandparents asserted that they had standing in that they had ac- tual care, control, and possession of Children for at least six months ending not more than 90 days preceding the date of filing their petition. In the supporting affidavit attached to their petition, Maternal Grandparents stated that Mother placed Children in their care on January 18 and further stated facts supporting their allegation that Mother and Father were neglecting Children. Father, pro se, filed a motion to dismiss Maternal Grandparents’ suit, argu- ing that Maternal Grandparents lacked standing, because they did not have possession of Children for the requi- site 6 months preceding the filing of the petition. The trial court did not grant Father’s motion to dismiss and, after final trial, entered a final order that appointed Maternal Grandparents as JMCs of Children. Father appealed.

Holding: Reversed and Rendered

Majority Opinion: (JJ. Longoria, Perkes) Father argues that Maternal Grandparents lacked standing to file their petition, because they did not have “actual care, control, and possession of the child[ren] for at least six months ending not more than 90 days preceding the date of the filing of the petition.” In their original petition, filed on June 16, Maternal Grandparents asserted that they had standing to file the suit because they had satisfied the general standing provisions of TFC § 102.003(a)(9) in that they had possession of Children for 6 months ending not more than 90 days before filing their petition – instead of asserting the more specific grandparent-standing provisions of the TFC. In relevant part, Maternal Grandparents asserted that they both had possession of Children since Janu- ary 18. However, this is only approximately 5 months prior to the date that Maternal Grandparents filed suit on June 16. Therefore, Maternal Grandparents failed to produce evidence demonstrating that they had standing un- der § 102.003(a)(9) and, accordingly, the trial court erred when it did not dismiss their suit for lack of standing.

Concurring and Dissenting Opinion: (Contreras, C.J.) The majority correctly concludes that Maternal Grand- parents did not have standing under § 102.003(a)(9). However, even when the requisites of § 102.003(a)(9) are

not met, a grandparents has standing to seek managing conservatorship if there is “satisfactory proof to the court” that “the order requested is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development.” Here, Maternal Grandparents’ supporting affidavit stated facts supporting a finding that Children’s present circumstances would significantly impair their physical health or emo- tional development.

TRIAL COURT PROPERLY DENIED FATHER’S PETITION FOR BILL OF REVIEW ARISING OUT OF DE- FAULT JUDGMENT BASED ON SUBSTITUTED SERVICE, WHERE SUBSTITUTED SERVICE WAS EFFEC- TUATED AT BUSINESS AND EVIDENCE, ALTHOUGH CONFLICTING, SUPPORTED FINDING THAT FA- THER FREQUENTED BUSINESS.

In re L.M.T., No. 05-19-00589-CV, 2020 WL 7053656 (Tex. App.—Dallas 2020, no pet. h.) (mem. op.) (12-02-20).

Facts: In 1994, the OAG filed a paternity suit against Father, the petition for which recited that Father could be served at “2337 Martha, Dallas, Texas 75229.” The record does not show what attempts were made to serve Fa- ther at this address, but the OAG eventually filed a motion for substituted service. In the OAG’s supporting affida- vit, a constable stated that he had attempted to serve Father at a business called “Pagers R Us” 5 times and fur- ther stated that he believed that Father was evading service. The trial court granted the OAG’s motion for substi- tuted service, ordering that the constable was authorized to serve Father by leaving the OAG’s petition and cita- tion with anyone over 16 years of age or by attaching it to the front door of Pagers R Us. Thereafter, the constable effectuated substituted service by delivering the petition and citation to “a black female, who would not identify herself, who was older than sixteen (16) years of age,” at Pagers R Us. With service purportedly complete, the trial court held a final hearing and entered a default judgment against Father, ordering him to pay child support to Mother. Shortly thereafter, Father was incarcerated. Upon his release from prison years later, Father filed a peti- tion for bill of review, alleging that the default judgment was void for lack of service. At the hearing held thereon, Father offered evidence showing that he resided at 2331 Marfa, Dallas, Texas 75216 – not 2337 Martha, Dallas, Texas 75229 as alleged in the OAG’s petition. Father further testified that he had never worked for Pagers R Us. The man who owned Pagers R Us in 1994 testified, corroborating that Father had never worked for Pagers R Us. However, this man conceded that he knew Father and that Father frequented Pagers R Us and surrounding busi- nesses in the same shopping center before being incarcerated. Father, however, denied that he frequented Pag- ers R Us. After the hearing, the trial court denied Father’s petition for bill of review. Father appealed.

Holding: Affirmed

Opinion: Father argues that, because the OAG failed to comply with TRCP 106 and 107 in its attempts to serve him with process in 1994, the trial court should have granted his petition for bill of review. Although the address shown on the OAG’s petition – 2337 Martha – does not exist and Father actually lived at 2331 Marfa at that time, TRCP 106 permits service not only at the defendant’s home, but also at any “other place where the defendant can probably be found.” The constable’s return of service showed that he served “a black female, who would not iden- tify herself, who was older than sixteen (16) years of age” at Pagers R Us. Thus, the question presented by Fa- ther’s bill of review was one of fact: whether he could “probably be found” at Pagers R Us. Although the trial court heard conflicting evidence regarding this question, the trial court, as the sole judge of the witnesses’ credibility, does not abuse its discretion when it rules on conflicting evidence. Therefore, the trial court here did not abuse its discretion in denying Father’s petition for bill of review.

TRIAL COURT ERRED IN FINDING THAT IT DID NOT HAVE JURISDICTION TO MODIFY OUT-OF-STATE ORDER UNDER THE UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (“UCCJEA”).

In re T.M., No. 02-19-00388-CV, 2020 WL 7393741 (Tex. App.—Fort Worth 2020, no pet. h.) (mem. op.) (12-17- 20).

Facts: Mother, Father, Child, and Father’s parents initially lived in North Carolina (“NC”). Eventually, Mother moved to Texas to be with her parents. Shortly thereafter, a NC court awarded “the legal and primary physical custody” of Child to Mother’s parents, gave Mother and Father supervised visitation in Texas, and gave Father’s parents visitation in Texas. Approximately a year later, Father moved to Texas and filed a modification suit in Texas. Mother and her parents each filed a plea to the jurisdiction, arguing that the NC court retained continuing

exclusive jurisdiction, because Father’s parents still resided in NC. In response, Father argued that his parents no longer qualified as persons “acting as a parent” under the UCCJEA and, accordingly, their residence in NC did not deprive the trial court from exercising jurisdiction under the UCCJEA. After conferring with each other, the NC court and the trial court determined that the NC court retained continuing exclusive jurisdiction under the UCCJEA. The trial court accordingly granted the pleas to the jurisdiction and issued findings of fact, in which it found, inter alia, that Father, Mother, Mother’s parents, and Child were all Texas residents; that Father’s parents were NC residents; and that it did not have jurisdiction to modify the prior order. Father appealed.

Holding: Reversed and Remanded

Opinion: Father argues that his parents were never persons “acting as a parent” under the prior order and, ac- cordingly, the trial court erred in finding that it did not have jurisdiction to modify the prior order. A “person acting as a parent” is someone who has both physical and legal custody of a child. It is undisputed that the prior order awarded Mother’s parents “the legal and primary physical custody” of Child, while Father’s parents were granted only visitation. Accordingly, Father’s parents could not be persons “acting as a parent” under the UCCJEA. Alt- hough the NC court and the trial court conferred and determined that the NC court retained continuing exclusive jurisdiction, the trial court subsequently made a finding that Mother, Father, Child, and Mother’s parents no longer resided in NC – a finding that, because Father’s parents are not persons “acting as a parent,” effectively ended the NC court’s continuing exclusive jurisdiction under the UCCJEA. Therefore, the trial court erred when it found that it did not have jurisdiction to modify the prior order.

FORMER FOSTER PARENTS OF CHILDREN, WHO ARE NO LONGER FOSTER PARENTS, MUST STILL MEET FOSTER-PARENT-SPECIFIC STANDING REQUIREMENTS TO INTERVENE IN CUSTODY SUIT.

In re Torres, ___ S.W.3d ___, No. 10-20-00266-CV, 2020 WL 7867283 (Tex. App.—Waco 2020, orig. proceed- ing) (12-30-20).

Facts: TDFPS removed Children from Mother’s care and placed them with Foster Parents. After approximately 11.5 months in Foster Parents’ care, Children were finally returned to Mother. Thereafter, Foster Parents inter- vened, asserting standing as individuals who had actual care, control, and possession of Children for 6 months ending not more than 90 days preceding filing of their intervention (TFC § 102.003(a)(9)). Paternal Grandparents, who had also intervened, filed a plea to the jurisdiction and a motion to strike Foster Parents’ intervention, assert- ing that Foster Parents lacked standing to intervene. After the trial court denied their motion to strike, Paternal Grandparents filed a petition for writ of mandamus.

Holding: Petition for Writ of Mandamus Granted

Opinion: Paternal Grandparents argue that the trial court erred in denying their motion to strike Foster Parents’ intervention, because Foster Parents lack standing to intervene. In their petition in intervention, Foster Parents assert standing as individuals who had actual care, control, and possession of Children for 6 months ending not more than 90 days preceding filing of their intervention (TFC § 102.003(a)(9)). However, Foster Parents were Children’s foster parents for the majority of the time that they had “actual care, control, or possession” of Children, even if they were no longer Children’s foster parents at the time that they filed their intervention. Where, as here, the time relied on by a party to establish “actual care, control, or possession” of Children includes time as a foster parent, that party must establish foster-parent-specific standing under TFC § 102.003(a)(12) (namely, that they must have had actual care, control, or possession of Children for 12 months ending not more than 90 days pre- ceding filing of their intervention) – not the more general standing requirements found in TFC § 102.003(a)(9). Foster Parents did not meet the foster-parent-specific standing requirements, because they only had actual care, control, or possession of Children for approximately 11.5 months. Accordingly, Foster Parents did not have stand- ing to intervene and the trial court erred in denying Paternal Grandparents’ motion to strike Foster Parents’ inter- vention.

TRIAL COURT ERRED IN DENYING MOTHER’S MOTION TO TRANSFER.

In re R.H., No. 02-20-00342-CV, 2020 WL 7776794 (Tex. App.—Fort Worth 2020, orig. proceeding) (mem. op.) (12-31-20).

Facts: Mother filed for divorce in Parker County. While the divorce suit was pending, Mother and Child moved to Tarrant County. The Parker County trial court entered a divorce decree a few months later. Approximately 5 months thereafter, Mother filed a modification suit in the Parker County trial court and requested that the suit be transferred to Tarrant County, where Mother and Child had been residing for at least 6 months. Father filed a con- troverting affidavit, averring that Child had not resided in Tarrant County for at least 6 months. However, at the hearing on Mother’s motion to transfer, Father conceded that Mother and Child had lived in Tarrant County for approximately 7 months. Nonetheless, Father argued that the 6-month residency period did not begin until the trial court entered the divorce decree – which was only 5 months before Mother filed her modification suit. At the conclusion of the hearing, the trial court denied Mother’s motion to transfer. Mother filed a petition for writ of man- damus.

Holding: Petition for Writ of Mandamus Granted

Opinion: Mother argues that the trial court erred in denying her motion to transfer. Father testified that Mother and Child had resided in Tarrant County for approximately 7 months by the time Mother filed her modification suit. Although approximately 2 of those months occurred prior to the entry of the divorce decree, this is immaterial to a mandatory-transfer analysis under the TFC. Therefore, because Child had been residing in Tarrant County for at least 6 months when Mother filed her petition to modify, the trial court had a mandatory duty to transfer the case to Tarrant County, and it accordingly abused its discretion when it denied Mother’s motion to transfer.

TRIAL COURT ERRED IN ORDERING AMICUS ATTORNEY TO DISCLOSE WORK PRODUCT.

In re Burwitz, No. 04-20-00576-CV, 2020 WL 7264558 (Tex. App.—San Antonio 2020, orig. proceeding) (mem. op.) (12-11-20).

Facts: In a suit affecting the parent-child relationship, the trial court appointed an amicus attorney. After a hear- ing, the trial court discharged the court-appointed amicus attorney and ordered her to prepare a written report to be admissible at final trial that summarized her work, impressions, observations, and recommendations. Father filed a petition for writ of mandamus.

Holding: Petition for Writ of Mandamus Granted in Part; Denied in Part.

Opinion: Father first argues that the trial court erred in discharging the amicus attorney. However, the trial court is permitted to discharge an amicus attorney pursuant to Chapter 107 of the TFC and, therefore, this was not in error.

Father next argues that the trial court’s order that the amicus attorney circulate a written report that sum- marizes her work, impressions, observations and recommendations violates the statutory attorney work-product privilege in TFC § 107.007(a). This order does violate the statutory attorney work-product privilege and there is no adequate remedy by appeal for the compelled disclosure of the amicus attorney’s work product. Accordingly, the trial court abused its discretion and Father is entitled to mandamus relief.

SAPCR
AMICUS ATTORNEYS/AD LITEMS/ PARENTING FACILITATORS & COORDINATORS

TRIAL COURT ERRED IN EXCLUDING GUARDIAN AD LITEM’S REPORT FOR FAILURE TO MEET RE- QUIREMENTS IMPOSED BY FAMILY CODE UPON CHILD-CUSTODY EVALUATORS.

In re Ortegon, ___ S.W.3d ___, No. 04-20-00451-CV, 2020 WL 7365456 (Tex. App.—San Antonio 2020, orig. proceeding) (12-16-20).

Facts: Mother filed a modification suit, seeking to lift the geographic restriction imposed on Child’s primary resi- dence. During the suit, the trial court appointed a guardian ad litem (“GAL”). The GAL later filed his report, in which he concluded that it was not in Child’s best interest for the geographic restriction to be lifted. Mother filed a motion to remove the GAL, alleging that he had not followed the protocol for a child-custody evaluator pursuant to TFC Ch. 107. After a hearing thereon, the trial court excluded the GAL’s report for all purposes and prevented him from testifying as to anything other than what he observed as a fact witness. Father filed a petition for writ of mandamus.

Holding: Petition for Writ of Mandamus Granted

Opinion: Father argues that the GAL was not required to follow the protocol for child-custody evaluators in TFC Ch. 107 in order to testify about Child’s best interest. The portions of TFC Ch. 107 that relate to GALs specifically authorizes GALs to conduct an investigation “to determine the best interests of the child” and requires a trial court to “ensure...that a [GAL] has an opportunity to testify regarding, and is permitted to submit a report regarding, the [GAL]’s recommendations relating to...the best interests of the child.” Confusingly, elsewhere, the TFC specifical- ly states that nobody may offer an expert opinion or recommendation relating to conservatorship, possession, or access unless the person has conducted a child-custody evaluation pursuant to TFC Ch. 107. Nonetheless, until the Legislature clearly removes a GAL’s ability to testify about the best interest of a child and vests that power exclusively in a child-custody evaluator, the courts may not engage in judicial activism and remove that ability from a GAL. As such, the trial court’s order improperly stripped the GAL of authority to which he was statutorily entitled.

EVIDENCE SUFFICIENT TO SUPPORT TRIAL COURT’S DECISION TO AWARD HUSBAND EXCLUSIVE RIGHTS TO DESIGNATE PRIMARY RESIDENCE AND MAKE EDUCATIONAL DECISIONS AND TO LIMIT WIFE TO SUPERVISED POSSESSION.

Magro v. Magro, No. 01-19-00701-CV, 2020 WL 7251864 (Tex. App.—Houston [1st Dist.] 2020, no pet. h.) (mem. op.) (12-10-20).

Facts: Wife filed for divorce from Husband. The trial court entered agreed temporary orders, providing that Hus- band have possession of Child at all times except that Wife was allowed supervised visitation with Child on cer- tain dates for 4 hours. At final trial, Wife’s mother, who supervised Wife’s possession, testified that Husband had denied Wife possession on several occasions. Wife’s mother further testified that Wife does not have a drinking problem and is not a threat to Child. Wife testified that Husband was physically violent towards her on numerous occasions and drank alcohol frequently. Wife admitted into evidence 2 photographs, which Wife alleged showed her injuries after one occasion when Husband hit her. Wife had no other photographs of her alleged injuries. Wife testified that she did not have a drinking problem or a drug-use problem. Wife testified that, as part of a CPS case, she had to submit to drug and alcohol testing. To her knowledge, she had not tested positive for drugs or alcohol use. Several of Wife’s family members testified that they had seen Husband be verbally and/or physically abusive towards Wife. These family members further testified that Wife did not have a drinking problem. A CPS caseworker testified that she had never received any allegations that Husband was a danger to Child. The case- worker testified that Wife had completed all of the requirements imposed by CPS and that their only remaining concern for Wife was that Wife did not want to follow a doctor’s advice regarding a medical issue Child was suffer- ing from. The caseworker further testified that Wife refused to submit to one of her drug and alcohol tests and that she had been deemed to have tested positive as a result. A police officer testified that he had been called to Wife’s home after receiving a report of child endangerment. He testified that Wife’s home was disheveled, in dis- repair, and littered with beer cans. A second police officer testified that he smelled alcohol on Wife during the home visit. Husband testified that he does not drink alcohol frequently, that he had never been physically violent towards Wife, and that Wife and her family members were lying. Husband also testified that Child attends daycare

SAPCR CONSERVATORSHIP

while he is at work, has a routine at his home, is subject to random drug tests at his work, and keeps up with Child’s medical needs. In its divorce decree, the trial court appointed Husband and Wife as JMCs, awarded Fa- ther the exclusive rights to designate Child’s primary residence and make educational decisions, and ordered Wife’s visitation to be supervised. Wife appealed.

Holding: Affirmed

Opinion: Wife first argues that the trial court erred in appointing the parties as JMCs, because she presented credible evidence of family violence. However, despite her and her family members’ testimony that Husband was physically abusive, Husband disputed that he had ever physically hurt Wife. Where, as here, parties present con- flicting evidence, the trial court is permitted to reject one party’s version. Here, the trial court could have rejected Wife and her family members’ testimony and reasonably found no credible evidence that Husband had committed family violence. Therefore, the trial court did not err in appointing Husband and Wife as JMCs.

Wife next argues that the trial court erred in awarding Husband the exclusive rights to designate Child’s primary residence and to make educational decisions. However, there was substantial evidence supporting the trial court’s decision, including Wife’s prior supervised possession under the agreed temporary orders, Husband’s testimony that Child is well cared-for in his possession, the police officers’ testimony regarding the state of Wife’s home and her intoxication, Wife’s alcohol abuse, CPS having not received any allegations against Husband, Hus- band’s sobriety, and Wife’s drug and alcohol test results that were deemed positive by CPS. In light of this evi- dence, the trial court did not err in awarding Husband the exclusive rights to designate Child’s primary residence and to make educational decisions.

Wife lastly argues that the trial court erred in ordering her periods of possession to be supervised. How- ever, for all of the reasons supporting the trial court’s decision to award Husband the exclusive rights to designate Child’s primary residence and to make educational decisions, discussed above, the trial court also had sufficient evidence supporting its order that Wife be restricted to supervised possession.

EVIDENCE SUFFICIENT TO SUPPORT TRIAL COURT’S DECISION TO AWARD EXCLUSIVE RIGHT TO DESIGNATE CHILD’S PRIMARY RESIDENCE TO FATHER.

Beg v. Shakeel, No. 01-19-00765-CV, 2020 WL 7502491 (Tex. App.—Houston [1st Dist.] 2020, no pet. h.) (mem. op.) (12-22-20).

Facts: Mother and Father are both physicians. At final trial in their divorce suit, Father testified that he moved from Atlanta to Houston so that he could complete his fellowship there. Father testified that Mother, who gave birth to Child after Father moved to Houston, had always intended to join him in Houston and even received job offers in Houston. However, Father testified that, against his objections, Mother ended up accepting a job offer in Florida and moving there with Child. Father testified that, after Mother moved to Florida, she refused to allow him to see Child unless he traveled to Florida and frequently denied him the ability to FaceTime with Child. Father tes- tified that he believed Mother did not want him to have a relationship with Child. Father testified that, if he were awarded the exclusive right to designate Child’s primary residence, he would encourage Mother’s relationship with Child. Father’s boss, one of Mother and Father’s mutual friends, and Father’s father testified that Father was a caring parent and takes care of Child’s needs. Father’s boss further testified that, although Father’s work hours were strenuous, the later portions of his fellowship would be more akin to an 8-to-5 job. After final trial, the trial court awarded Father the exclusive right to designate Child’s primary residence. Mother appealed.

Holding: Affirmed

Opinion: Mother argues that the evidence is insufficient to support the trial court’s decision to award Father the exclusive right to designate Child’s primary residence. However, there was evidence that Father was a capable parent and cared for Child. Furthermore, there was evidence that Mother hindered Father’s relationship with Child and did not foster an environment where both parents would be involved in decision-making for Child, and that Father would provide an environment where both parents were actively involved in Child’s life. There was also evidence that Father’s work schedule would lighten up in the coming years, which would allow him more time to care for Child. Considering all the evidence, the trial court’s decision to award Father the exclusive right to desig- nate Child’s primary residence was supported by sufficient evidence.

EVIDENCE SUPPORTED APPOINTING MOTHER AS SOLE MANAGING CONSERVATOR AND ORDERING FATHER’S POSSESSION TO BE SUPERVISED.

Navarro v. Nunn, No. 03-19-00876-CV, 2020 WL 7640038 (Tex. App.—Austin 2020, no pet. h.) (mem. op.) (12- 23-20).

Facts: Father filed an original SAPCR. The trial court appointed a guardian ad litem (“GAL”) to issue a report. In the GAL’s report, she recommended that the parties be appointed JMCs, that Mother be awarded the exclusive right to designate Child’s primary residence, and that the parties exercise a 50/50 possession schedule until Child reached school age. At final trial, Mother testified that Father had been verbally and mentally abusive towards her. Mother testified that Child attended daycare, but that Father had repeatedly refused to take Child to daycare, re- sulting in 65 absences in less than a year. Mother further testified that Father had refused to surrender posses- sion of Child for almost a month shortly before final trial despite Mother’s daily requests to see Child. Mother also testified that Father refused to allow Child to be vaccinated. A CPS caseworker testified that she worked with Mother and Father after Father made allegations that Mother was physically abusing Child. The CPS caseworker further testified that Mother and Father had an extensive history of CPS involvement due to Father’s repeated allegations of physical and sexual abuse, resulting in two sexual-assault examinations of Child. The CPS case- worker testified that the allegations of abuse had all been ruled out and it was CPS’s position that they were being improperly put in the middle of a custody dispute between Mother and Father. The CPS caseworker also testified that she had concerns for Father due to his repeated interrogations of Child relating to various bruises and marks, which he used to claim that Mother was physically abusing Child. The CPS caseworker testified that she had no concerns for Mother. The GAL testified as to the findings in her report and testified that she was concerned that Father’s conduct would negatively impact Child. At the close of final trial, the trial court appointed Mother SMC and order Father’s possession of Child to be supervised. Father appealed.

Holding: Affirmed

Opinion: Father argues that the trial court erred in appointing Mother SMC and ordering Father’s possession of Child to be supervised. However, the trial court heard evidence that Father denied possession to Mother; made multiple, unfounded allegations of abuse against Mother (which even resulted in 2 sexual-assault examinations of Child); and made comments to Child that could have the effect of alienating Child from Mother. Furthermore, the trial court heard the caseworker and GAL’s concerns for Father’s conduct. On this record, the trial court had suffi- cient evidence to support its order appointing Mother SMC and ordering Father’s possession of Child to be super- vised.

TRIAL COURT PROPERLY FOUND MOTHER IN ARREARS FOR TIME PERIOD THAT SUBSEQUENTLY- VACATED ORDER REQUIRING FATHER TO PAY CHILD SUPPORT WAS IN EFFECT.

Haden v. Granmayeh, No. 01-19-01013-CV, 2020 WL 7391708 (Tex. App.—Houston [1st Dist.] 2020, no pet. h.) (mem. op.) (12-17-20).

Facts: Under Mother and Father’s divorce decree, Father was ordered to pay child support to Mother. Several years later, Father filed a modification suit, seeking a modification of his child-support obligation. In January 2017, the trial court granted Father’s requested modification and ordered Mother to pay to Father $945 in child support per month (“January 2017 Order”). Mother filed a motion for new trial and, 4 months later, the trial court granted Mother’s motion and vacated the January 2017 Order, re-ordering Father to pay child support to Mother. Thereaf- ter, Father filed a motion for reconsideration. The trial court granted Father’s motion for reconsideration in March 2019, reinstating the January 2017 Order. In September 2019, Father filed an enforcement action, alleging that Mother was in arrears for $27,405, taking into consideration the $3,780 that Mother had paid in child support. The trial court granted Father’s motion for enforcement and found that Mother was $27,405 in arrears. Mother ap- pealed.

Holding: Affirmed

SAPCR CHILD SUPPORT

Opinion: Mother argues that the evidence is insufficient to support the trial court’s arrearage determination, be- cause she could not be required to pay child support for the period of time that the January 2017 Order had been vacated and Father had been ordered to pay child support. When the trial court vacated the January 2017 Order, the January 2017 Order had no more legal effect and it was as if the January 2017 Order had never even existed. Accordingly, Mother’s obligation to pay child support to Father was extinguished and Father was re-ordered to pay child support to Mother. In March 2019, the trial court vacated the order that vacated the January 2017 Order. Like the trial court’s previous vacation, the March 2019 vacation of the order requiring Father to pay child support to Mother extinguished Father’s child-support obligation as if there had never been such an obligation. Moreover, it reinstated the January 2017 Order as if the January 2017 Order had never been vacated. Therefore, Mother’s child-support obligation was reinstated as if it had been in full force and effect, uninterrupted, since January 2017. The total amount of child support accrued between January 2017 and September 2019 (at $945 per month) was $31,185. Mother made child-support payments in the amount of $3,780 during this time period. Accordingly, the trial court’s finding that Mother was $27,405 in arrears is supported by the evidence.

FAMILY CODE’S CHILD-SUPPORT PROVISIONS RELATING TO “MULTIPLE HOUSEHOLDS” INAPPLICA- BLE TO SPLIT POSSESSION OF CHILDREN BETWEEN MOTHER AND FATHER.

In re S.M., ___ S.W.3d ___, No. 12-19-00395-CV, 2020 WL 7392774 (Tex. App.—Tyler 2020, no pet. h.) (12-16- 20).

Facts: Mother and Father have 4 Children together and neither has any other children. Under a prior order, Mother was awarded the exclusive right to designate Children’s primary residence. Father filed a modification suit, requesting to be awarded the exclusive right to designate Oldest Child’s primary residence and requesting that Mother pay child support for Oldest Child. After final trial, the trial court awarded Father the exclusive right to des- ignate Oldest Child’s primary residence and ordered Mother to pay child support to Father for Oldest Child. In cal- culating Mother’s net resources, the trial court did not include the amount of child support that she received from Father for the younger Children. Father appealed.

Holding: Affirmed

Opinion: Father argues that the trial court erred in failing to consider the child support he paid to Mother when calculating Mother’s net resources, because he alleges that this case involves “multiple households” pursuant to TFC § 154.070. The TFC provides that, when applying the child-support guidelines for an obligor who has chil- dren in more than one household, a trial court must determine the amount of child support that would be ordered if all children for whom the obligor has a legal duty to support lived under one household and, thereafter, subtract from that amount a credit for the obligor’s children “who are not before the court.” Furthermore, the TFC includes a table as an alternative method for computing child support for children in more than one household and pro- vides that one should determine the number of children before the court and the number of “other” children for whom the obligor has a duty of support. These sections of the TFC reflect that the language “multiple households” refers to households in which children for whom the obligor has a duty to support are not before the court. Here, all of Mother and Father’s children were before the trial court. Therefore, the provisions of the TFC relating to “multiple households” do not apply to Mother and Father. Accordingly, the trial court did not err in failing to con- sider the child support paid by Father to Mother when calculating Mother’s net resources.

TRIAL COURT’S ORDERS FOR INMATE-FATHER’S POSSESSION OF CHILDREN SUPPORTED BY EVI- DENCE. HOWEVER, TRIAL COURT ERRED IN IMPOSING SANCTIONS AGAINST FATHER WITHOUT HOLDING AN EVIDENTIARY HEARING THEREON.

In re M.A.G., No. 04-18-00833-CV, 2020 WL 7633920 (Tex. App.—San Antonio 2020, no pet. h.) (mem. op.) (12- 23-20).

Facts: The OAG filed an original SAPCR against Father, and Father filed a counterpetition. At final trial, Mother testified that she did not own a car and could not afford a rental car to transport Children to see Father, who is incarcerated 2-3 hours away from her residence. Mother further testified that the cost of a rental car and gas

SAPCR POSSESSION

would be approximately $250. Mother testified that she had no issue with Father’s adult son taking Children to see Father in lieu of herself taking them, but she did not feel safe allowing anyone else to transport Children to see Father. Mother further testified that Youngest Child had told her many times that she was afraid to go to the prison where Father was incarcerated by herself. Father’s brother testified that he would be willing to loan his car to Mother for purposes of facilitating Father’s possession of Children. Father’s brother further testified that he would be willing to transport Children, himself, but that he admittedly did not know Children very well. Father’s brother also testified that he is a convicted felon. After final trial, the trial court entered a final order, in which it, inter alia, ordered Father to pay the costs of visitation not to exceed $250, ordered that only Mother or Father’s adult son may transport Children to the prison in which Father is incarcerated, and ordered that Youngest Child may not visit Father unless accompanied by Mother or Oldest Child. Father appealed. Relevant to the issues on appeal, Father also filed a third-party claim against the trial court’s presiding judge, which was denied. The presid- ing judge moved for sanctions against Father. Father drafted a response, which was not received and filed by the trial court until several days after it had already granted the presiding judge’s request for sanctions without hear- ing. Father appealed this order.

Holding: Reversed and Remanded in Part; Affirmed in Part.

Opinion: Father argues that the trial court erred in ordering him to pay the costs of transportation to exercise his possession, which he alleges is actually the imposition of a child-support obligation and which illegally conditions his possession of Children on his payment of child support. However, there was evidence that Mother did not have the means to transport Children to Father for each of his periods of possession, unless someone loaned her a car or someone paid for a rental car and gas. Here, the trial court ordered Father to pay costs of transportation not to exceed $250. If Father’s brother (or anyone else) is able to loan a car to Mother, Father would not have to pay any costs. Furthermore, the trial court has the discretion to order the noncustodial parent to pay transporta- tion costs associated with possession, which is not considered a child-support obligation. As such, the trial court did not err in ordering Father to pay up to $250 for transportation costs associated with his periods of possession.

Father next argues that the trial court erred in not allowing his brother to transport Children to visit Father and in requiring Mother or Oldest Child to be present when Youngest Child is visiting Father. However, Mother testified that she had concerns for Children’s safety if anyone other than herself or Father’s adult son were to transport them to the prison. Mother also testified that Youngest Child stated multiple times that she was afraid to go to the prison in which Father was incarcerated by herself. Father’s brother testified that he did not know Chil- dren very well and that he was a convicted felon. With this evidence, the trial court did not abuse its discretion in not allowing Father’s brother to transport Children to visit Father and in requiring Mother or Oldest Child to be present when Youngest Child is visiting Father.

Father finally argues that the trial court erred in entering sanctions against him arising out of his third- party claim against the presiding judge. Here, the trial court did not hold an evidentiary hearing before granting the presiding judge’s request for sanctions. Although Father filed a response, this does not constitute an opportunity to be heard under the facts of this case, because the order imposing sanctions was signed before the trial court ever received a copy of Father’s response. As such, the trial court erred in awarding sanctions against Father without providing him an opportunity to be heard.

TRIAL COURT DID NOT ERR IN LIMITING INMATE-FATHER’S ACCESS TO CHILDREN TO WRITING LET- TERS FROM PRISON.

Pentland v. Pentland, No. 03-19-00049-CV, 2020 WL 7703073 (Tex. App.—Austin 2020, no pet. h.) (mem. op.) (12-29-20).

Facts: Father was convicted of capital murder after a high-profile trial and was sentenced to life without parole. Thereafter, Mother filed for divorce. At final trial, Mother testified that Husband had not seen Children since his arrest almost 3 years earlier. Mother testified that she was afraid of Husband; did not want Children to visit him in prison; and had learned during the murder investigation that Father had been lying about significant topics, such as being on probation for aggravated robbery and not actually being enrolled in law school. Mother further testi- fied that she did not want Paternal Grandmother to bring Children to the prison in which Father was incarcerated, because Paternal Grandmother was untrustworthy and Mother was concerned that Paternal Grandmother might kidnap Children. According to Mother, Paternal Grandmother had tried to destroy evidence during Father’s mur- der investigation, and she was concerned that Paternal Grandmother would continue to break the law at Father’s behest. A police investigator testified that Father had obtained a life-insurance policy on Mother about 2 months

before committing the murder and that he would “without a doubt” be concerned if Father were to have contact with Children. Paternal Grandmother testified that she believed Father was innocent and would do everything she could “within [existing] limitations” to get him out of prison. After final trial, the trial court entered a divorce decree, which appointed Mother as SMC, appointed Father as PC, and ordered that Father would have no access to Children except for the ability to write them letters from prison. Father appealed.

Holding: Affirmed

Opinion: Father first argues that the trial court erroneously admitted evidence of his criminal conviction, because it was on appeal at the time of final trial. If used for impeachment purposes, a prior criminal conviction on appeal is inadmissible. However, Mother and the police investigator did not present evidence of Father’s criminal convic- tion for impeachment purposes; instead, they presented evidence of Father’s criminal conviction to establish facts regarding his inability to have possession of Children. Accordingly, the trial court did not err in admitting this evi- dence.

Father next argues that the trial court erred in imposing “excessive restrictions” on his access to Children. At final trial, evidence was admitted that Father was incarcerated for life without parole. Mother testified that she was afraid of Husband; did not want Children to visit him in prison; and had learned during the murder investiga- tion that Father had been lying for years. Mother further testified that she did not want Paternal Grandmother to bring Children to the prison in which Father was incarcerated, because Paternal Grandmother was untrustworthy and Mother was concerned that Paternal Grandmother might kidnap Children, which she backed up with evidence that Paternal Grandmother had destroyed evidence during Father’s murder investigation. The police investigator testified that he would “without a doubt” be concerned if Father were to have contact with Children. On this record, it was evident that Father had not seen Children for several years, that Mother was scared of Father, that it was unlikely that Father would ever see Children outside of prison walls, and that Paternal Grandmother was not an appropriate person to facilitate Father’s possession of Children. As such, the trial court did not abuse its discretion in precluding Father from having access to Children except for having the ability to write them letters from prison.

TRIAL COURT ERRED IN CHANGING THE PARENT WITH THE EXCLUSIVE RIGHT TO DESIGNATE CHILD’S PRIMARY RESIDENCE ON A TEMPORARY BASIS IN MODIFICATION SUIT WHERE NO EVIDENCE SUPPORTED FINDING THAT CHILD’S PRESENT CIRCUMSTANCES WOULD SIGNIFICANTLY IMPAIR HER PHYSICAL HEALTH OR EMOTIONAL DEVELOPMENT.

In re Bird, No. 03-20-00222-CV, 2020 WL 7063583 (Tex. App.—Austin 2020, no pet. h.) (mem. op.) (12-03-20).

Facts: Under a prior order (entered in Houston County), Father had the exclusive right to designate Child’s prima- ry residence. Subsequently, Mother and Father reached an informal agreement whereby Child would live with each of them for one year at a time, switching after each school year. At this time, Mother still lived in Houston County, but Father lived in Bell County. After a few years, Father used his exclusive right to designate Child’s primary residence to prevent Child from spending the school year with Mother. In response, Mother filed a modifi- cation suit in Houston County, seeking the exclusive right to designate Child’s primary residence. Father filed a motion to transfer, asserting that venue was proper in Bell County, because Child had resided in Bell County for the previous 6 months. While the motion to transfer was pending, the Houston County district court held a tempo- rary orders hearing. The Houston County trial court found that both parents were good parents and there were no serious issues with either of them, but that Child should stay in Houston County. As such, the Houston County trial court awarded Mother the exclusive right to designate Child’s primary residence on a temporary basis; how- ever, it did not actually enter written temporary orders for more than a year. In the meantime, the Houston County trial court denied Father’s motion to transfer, despite Mother not filing a controverting affidavit. Father sought mandamus relief, complaining of the denial of his motion to transfer. The appellate court granted Father’s petition for writ of mandamus and, as a result, the Houston County trial court transferred the case to Bell County. Thereaf- ter, Father filed a petition for writ of mandamus, complaining of the temporary orders.

Holding: Petition for Writ of Mandamus Granted.

Opinion: Father argues that the Houston County trial court abused its discretion when it entered the temporary orders. Although part of Father’s complaint is that the temporary orders were issued while his motion to transfer

SAPCR MODIFICATION

was pending, jurisdiction during a transfer does not terminate until a case is docketed in the transferee court. As such, the Houston County trial court had jurisdiction to enter the temporary orders while Father’s motion to trans- fer was pending. However, although the Houston County trial court had jurisdiction to enter the temporary orders, it lacked sufficient evidence to support changing the right to establish Child’s primary residence from Father to Mother. The record shows that there was no evidence to support a finding that Child’s present circumstances sig- nificantly impaired her physical health or emotional development, as would be needed to support this change on a temporary basis. To the contrary, the Houston County trial court explicitly stated that both parents were good par- ents and it found no serious issues with either of them. Therefore, the Houston County trial court erred when it entered temporary orders changing which parent had the exclusive right to designate Child’s primary residence.

DIVORCE DECREE’S PROVISIONS “FIXING” VENUE IN BELL COUNTY INSUFFICIENT TO SUPERSEDE FAMILY CODE’S MANDATORY VENUE PROVISIONS. FURTHERMORE, EVIDENCE THAT MOTHER ALIEN- ATED CHILDREN FROM FATHER INSUFFICIENT TO SUPPORT CHANGE OF CONSERVATOR WITH RIGHT TO DESIGNATE CHILDREN’S PRIMARY RESIDENCE ON TEMPORARY BASIS.

In re Mathes, No. 03-20-00379-CV, 03-20-00441-CV, 2020 WL 7063684 (Tex. App.—Austin 2020, orig. proceed- ing) (mem. op.) (12-03-20).

Facts: The Bell County trial court signed an agreed divorce decree, awarding Mother, who lived in Rusk County, the exclusive right to designate Children’s primary residence. The divorce decree initially provided that venue would “remain fixed in Bell County” and that the parties would not “attempt to change venue or jurisdiction.” Thereafter, Father filed a motion asking the Bell County trial court to confirm that he did not owe any child-support arrearages. Mother filed a motion to transfer venue to Rusk County, where Children had lived for more than a year. Father responded, asserting that the divorce decree precluded a change in venue. Thereafter, Mother filed a modification suit and re-urged her motion to transfer venue. The Bell County trial court held a hearing on Mother’s motion to transfer, but never ruled thereon. As a result, Mother filed her first petition for writ of mandamus. In the meantime, Father filed his own petition to modify, seeking the exclusive right to designate Children’s primary resi- dence. At a temporary-orders hearing, Father testified that he was concerned “about parental alienation” and that Mother had denied him electronic access to Children on over 150 occasions. He further testified that Mother has given Children the message that “they’re not supposed to enjoy their time with [him].” Children’s therapist testified that she had diagnosed Children with adjustment disorders and that they were being affected by parent-child rela- tionship distress. At the close of the temporary-orders hearing, the trial court awarded Father the exclusive right to designate Children’s primary residence on a temporary basis. Thereafter, Mother filed her second petition for writ of mandamus.

Holding: Petitions for Writ of Mandamus Granted

Opinion: Mother first argues that the trial court erred in denying her motion to transfer venue. Although Father opposed Mother’s motion to transfer venue, he never filed an affidavit controverting Mother’s assertions related to venue. Instead, he averred that the parties’ divorce decree precluded a change in venue. When Mother filed her modification suit and re-urged her motion to transfer venue, Father again did not file an affidavit controverting Mother’s venue-related assertions. Even though the parties’ divorce decree specifically provides that venue shall “remain fixed in Bell County,” the parties’ agreement cannot supersede the TFC’s mandatory venue provisions. Here, Mother asserted that Children had resided in Rusk County for at least 6 months preceding the filing of suit, and Father did not controvert this assertion. As such, the trial court erred in denying Mother’s motion to transfer venue.

Mother next argues that the trial court erred in awarding Father the exclusive right to designate Children’s primary residence on a temporary basis. At the temporary-orders hearing, Father testified that he was concerned that Mother was alienating Children from him. Children’s therapist testified that Children were suffering from ad- justment disorders and from parent-child relationship distress. While this evidence shows that Children feel torn between their parents, unhappy about the prior divorce, and that Mother may be discouraging their relationship with Father, this evidence falls short of showing that Mother’s alleged attempts to alienate Children from Father were causing Children “significant impairment” and is therefore inadequate to support a change of the conservator with the right to designate Children’s primary residence. As such, the trial court erred in awarding Father the ex- clusive right to designate Children’s primary residence on a temporary basis.

TRIAL COURT ERRED IN GRANTING MOTHER’S REQUESTED MODIFICATION WHERE FATHER DID NOT STIPULATE TO AND EVIDENCE DID NOT SUPPORT CHANGE IN CIRCUMSTANCES.

In re A.M., No. 07-20-00130-CV, 2020 WL 7651973 (Tex. App.—Amarillo 2020, no pet. h.) (mem. op.) (12-23-20).

Facts: Under the parties divorce decree, the parties were appointed JMCs, Mother was awarded the exclusive right to designate Child’s primary residence within the State of Texas, and Father was not ordered to provide child support. A few months later, Mother filed a modification suit, requesting the geographic restriction be expanded to include Colorado Springs, CO, and, notably, not requesting child support from Father. Father filed a general deni- al and a counterpetition, requesting certain modifications “if the court finds that the circumstances of the child or of one of the two parents have materially and substantially changed.” (emphasis added). At final trial, Mother testi- fied that she sought and obtained a job offer in Colorado Springs that paid approximately $20K more annually than her current job, as well as a $5K signing bonus. Mother testified that she would be willing to pay Father’s travel expenses to exercise possession if the trial court allowed her to relocate. She further testified that the school Child would attend in Colorado Springs was ranked 11th in the city, although she did not have any specific complaints about Child’s current school. Mother also testified that she had extended family in Colorado Springs. Father testified that Child had extended family near Child’s current residence and even more extended family ap- proximately 80 miles away. After final trial, the trial court concluded that Father judicially stipulated that a material and substantial change had occurred since rendition of the parties’ prior divorce decree. The trial court modified the geographic restriction on Child’s primary residence to include Colorado Springs, CO, ordered Mother to pay Father’s travel expenses to exercise possession, and ordered Father to pay child support. Father appealed.

Holding: Reversed and Remanded

Opinion: Father first argues that the trial court erred in concluding that he judicially stipulated that a material and substantial change had occurred since rendition of the parties’ prior divorce decree. Because Father’s requested modifications were pleaded in the alternative (i.e., “if the court finds...”), they cannot constitute a judicial stipula- tion. This is particularly so where Father filed a general denial to Mother’s modification suit. Therefore, the trial court erred in concluding that Father judicially stipulated that a material and substantial change had occurred since rendition of the parties’ prior divorce decree.

Father next argues that the evidence is insufficient to support the trial court’s finding that a material and substantial change had occurred. Mother testified that she obtained a job offer in Colorado Springs that paid ap- proximately $20K more than her current job and offered a $5K signing bonus. However, Mother introduced no evidence to show the difference in cost-of-living between her current residence and Colorado Springs. Colorado has a state income tax, whereas Texas does not. Furthermore, Mother offered and the trial court ordered her to pay Father’s travel expenses, which further diminishes any economic advantage for Mother to live in Colorado Springs. Moreover, Mother cited an improvement in schools that Child could attend as a reason for her request to relocate to Colorado Springs. While Mother testified that the school Child would attend in Colorado Springs was ranked 11th in the city, she offered no evidence of Child’s current school’s ranking and cited no specific complaints therewith. With regard to Child’s support network, Mother has extended family in Colorado Springs; however, Child has extended family near her current residence and 80 miles away – which, in Texas, is not a significant distance. In light of all of the evidence, Mother failed to meet her burden of proof and, accordingly, the trial court erred in finding that a material and substantial change in circumstances had occurred.

Father finally argues that the trial court erred in ordering him to pay child support where Mother never re- quested imposition of a child-support obligation and the matter was not tried by consent. It is true that Mother never pleaded for child support, nor was there any argument or evidence at final trial that would indicate the issue of child support being tried by consent. As such, the trial court erred when it ordered Father to pay child support.

TRIAL COURT PROPERLY DECLINED TO EXERCISE JURISDICTION IN MODIFICATION SUIT WHERE CHILDREN NO LONGER HAD SIGNIFICANT CONNECTION WITH TEXAS.

Cortez v. Cortez, ___ S.W.3d ___, No. 01-19-00296-CV, 2020 WL 7702187 (Tex. App.—Houston [1st Dist.] 2020, no pet. h.) (12-29-20).

Facts: In June 2012, Father filed for divorce in Fort Bend County, where Mother, Father, and Children lived. In August 2012, Mother and Children moved to Mexico. The trial court subsequently entered an agreed divorce de- cree, which provided that Mother must return with Children to Fort Bend County by August 1, 2014, at which point

Children’s primary residence would be restricted to Fort Bend County. In 2015, Father filed a modification suit and an enforcement action, arising out of Mother’s failure to return Children to Fort Bend County as contemplated by the agreed divorce decree. Mother filed a plea to the jurisdiction, alleging that the trial court no longer had con- tinuing exclusive jurisdiction. In her supporting affidavit, Mother alleged, inter alia, that Children lived in Mexico, Children went to school in Mexico, and Father had only exercised possession of Children twice since they moved to Mexico. Thereafter, the trial court signed an order declining to exercise jurisdiction over the issues of conserva- torship and possession and access. Father appealed.

Holding: Affirmed

Opinion: Father argues that the trial court erred in declining to exercise jurisdiction over the issues of conserva- torship and possession and access. Under the UCCJEA, the trial court, as a court that has made an initial child- custody determination, had continuing exclusive jurisdiction unless and until it determined “that neither the child[ren], nor the child[ren] and one parent...have a significant connection with [Texas] and that substantial evi- dence is no longer available in [Texas] concerning the child[ren]’s care, protection, training, and personal relation- ships.” Here, evidence was presented that Mother and Children moved to Mexico in August 2012, where they have resided ever since. There was also evidence presented that Father had only exercised possession of Chil- dren twice since they moved to Mexico in 2012. There is no evidence in the record that, since moving to Mexico, Children have had friends or other family members in Texas that they have visited, that they have visited doctors in Texas, or that Father has made any educational plans for Children in Texas. Therefore, the only connection that Children have with Texas is the fact that Father lives in Texas. On the other hand, Children live in Mexico, go to school in Mexico, and have friends and family in Mexico. It would therefore stand to reason that evidence rele- vant to Children’s care, protection, training, and personal relationships is available in Mexico – not Texas. Accord- ingly, the trial court did not err by declining to exercise jurisdiction over the issues of conservatorship and posses- sion and access.

EVIDENCE SUFFICIENT TO SUPPORT TRIAL COURT’S DENIAL OF FATHER’S REQUESTED MODIFICA- TION.

In re M.B., No. 13-20-00061-CV, 2020 WL 7757369 (Tex. App.—Corpus Christi 2020, no pet. h.) (mem. op.) (12- 30-20).

Facts: Father filed a modification suit, seeking to have Mother’s periods of possession supervised and seeking various exclusive parental rights. During the pendency of the suit, Mother submitted to several drug tests, some of which were positive. At final trial, Father testified that, despite his concerns for Mother’s drug use and temporary orders requiring Mother’s periods of possession to be supervised, he had permitted Mother to have unsupervised possession of Child on several occasions. Mother admitted to having an extensive history with drugs, but assert- ed that, as a result of counseling and rehab, she had not used drugs for a little over 2 years by the time of final trial. After trial, the trial court interviewed Child in chambers, but no record was taken of the interview. Thereafter, the trial court issued a ruling, in which it found that, while Mother had a problem with drug use in the past, she sought treatment and no longer used drugs. The trial court’s ruling, inter alia, awarded each party independent parental rights and awarded Mother an expanded SPO (without supervision). Father appealed.

Holding: Affirmed

Opinion: Father argues that the evidence is insufficient to support the trial court’s denial of his requested modifi- cations. The trial court heard evidence that Mother had an extensive history involving drug use, but that she had participated in counseling and rehab. As a result, although Mother had tested positive for drugs a few times during the pendency of the suit, she had not tested positive for drugs in a little over 2 years by the time of final trial. Fa- ther also offered no evidence or testimony that Mother’s history of drug use occurred around Child or may have affected Child. At the time of final trial, Mother had exercised possession of Child regularly and Father had even allowed some of Mother’s possession to be unsupervised. The trial court also interviewed Child in chambers. Be- cause there was no record taken of the interview, we must assume that Child’s statements during the interview supported the trial court’s ruling. Therefore, under this record, the evidence is sufficient to support the trial court’s ruling effectively denying Father’s requested modification.

SAPCR ENFORCEMENT OF CHILD SUPPORT

EVIDENCE INSUFFICIENT TO SUPPORT TRIAL COURT’S DECISION TO REDUCE FATHER’S CHILD- SUPPORT ARREARAGE BY APPROXIMATELY $25,000.

In re J.A.R., No. 05-19-01130-CV, 2020 WL 6866565 (Tex. App.—Dallas 2020, no pet. h.) (mem. op.) (11-23-20).

Facts: Father was ordered to pay $890 per month in child support to Mother. Years later, Father filed a motion with the trial court to confirm his child-support arrearages at $0. At final trial, the OAG admitted into evidence a record showing Father’s child-support payments, which indicated that his total arrearage was approximately $32K. In his opening statement, Father asserted that his actual child-support arrearage should only be about $6K, because he and Mother had lived together for about 20 months after imposition of his child-support obligation. At the close of final trial, the trial court stated that it would give Father a credit of $18.5K against whatever the OAG said Father owed, based upon Mother living with Father for 20 months. The trial court eventually signed a final order confirming that Father’s child-support arrearage was approximately $7K. Mother appealed.

Holding: Reversed and Remanded

Opinion: Mother argues that the trial court abused its discretion, because the evidence does not support the trial court’s decision to reduce Father’s child-support arrearage to approximately $7K. The only evidence on point is the OAG’s payment record, which indicated that Father’s total arrearage without any credits was approximately $32K. By confirming Father’s arrearage at approximately $7K, the trial court implicitly gave Father a credit for ap- proximately $25K – or almost $1,250 per month for the 20 months of credit. However, there is no evidence to support such a large credit, given that Father’s monthly child-support obligation is only $890. Therefore, the trial court abused its discretion in reducing Father’s child-support arrearage to approximately $7K without sufficient evidence.

TRIAL COURT PROPERLY CONFIRMED MINNESOTA CHILD-SUPPORT AND SPOUSAL-SUPPORT ORDER WHERE FATHER FAILED TO TIMELY REQUEST A HEARING TO CONTEST REGISTRATION AND EN- FORCEMENT OF THE ORDER PURUSANT TO UNIFORM INTERSTATE FAMILY SUPPORT ACT (“UIFSA”).

Ladwig v. Graf, No. 04-20-00094-CV, 2020 WL 7048685 (Tex. App.—San Antonio 2020, no pet. h.) (mem. op.) (12-02-20).

Facts: Mother and Father were divorced in Minnesota, where Father was ordered to pay to Mother monthly child- support and spousal-support payments. Thereafter, Mother filed a request for registration and enforcement of the Minnesota divorce decree in Texas, as well as a Notice of Application for Judicial Writ of Withholding. After being served with Mother’s request and Notice, Father filed a Motion to Stay Issuance and Delivery of Judicial Writ of Withholding, contesting the amount of arrearages. At a subsequent hearing, Mother argued that Father failed to timely request a hearing to contest the registration and enforcement of the Minnesota divorce decree and, there- fore, the divorce decree had to be confirmed by operation of law. Father argued that he timely filed a motion to stay, contesting the arrearage amounts. At the close of the hearing, the trial court concluded that Father had in- deed waived his right to contest the registration and enforcement of the Minnesota divorce decree. Accordingly, the trial court signed an order registering the Minnesota divorce decree and awarding Mother child-support and spousal-support arrearages. Father appealed.

Holding: Affirmed

Opinion: Father argues that the trial court erred in confirming the Minnesota divorce decree. To contest the regis- tration and enforcement of the Minnesota divorce decree, Father was required to request a hearing within 20 days of the date he received notice of Mother’s request for registration and enforcement of the divorce decree. Father contends that he was not required to request a hearing, because he filed a motion to stay, and the filing of that motion to stay shifted the burden to the trial court to set a hearing on his motion within 30 days pursuant to TFC § 158.309. While there is authority that would support this conclusion in regards to a Texas support order, the case at hand involves an out-of-state support order. Therefore, the child-support withholding requirements of UIFSA (codified in TFC Ch. 159) apply, not the child-support withholding provisions that govern Texas support orders

(i.e., TFC Ch. 158). Because Father failed to request a hearing to contest the registration and enforcement of the Minnesota divorce decree pursuant to UIFSA, the trial court did not err in confirming the Minnesota divorce de- cree and awarding arrearages.

AGREED ORDER PROVIDING FOR CHILDREN’S PARTICIPATION IN EXTRACURRICULAR ACTIVITIES TOO VAGUE TO BE ENFORCED BY CONTEMPT.

In re Janson, ___ S.W.3d ___, No. 19-1109, 2020 WL 7413707 (Tex., 2020) (orig. proceeding) (per curiam) (12- 18-20).

Facts: Upon Mother and Father’s separation, the trial court entered an agreed order that addressed, inter alia, Children’s extracurricular activities. In relevant part, the agreed order provided that “Mother and Father shall place each child in one extracurricular activity at a time;” that the parents’ “agreement as to which extracurricular activity shall be in writing;” that each parent, during his or her possession, will transport each child to the agreed-upon activities; and that each parent can independently choose to enroll the children in additional extracurricular activi- ties, but the other parent can choose, “at their elective,” whether to transport the child to such additional activities during that parent’s time of possession. This agreed order further acknowledged that, “[a]t the time of this agree- ment...[Daughter] is enrolled in soccer.” After entry of the agreed order, Daughter completed her soccer season. Through text messages, Mother and Father agreed to enroll Children in tennis. Father then decided to enroll Daughter in soccer again. After Mother failed to transport Daughter to some of her soccer activities, Father filed an enforcement action against Mother. After a hearing thereon, the trial court held Mother in contempt for failing to transport Daughter to some of her soccer activities. The trial court based its contempt finding, in part, on the agreed order’s acknowledgment that Daughter was enrolled in soccer when the agreed order was entered. Be- cause neither party had introduced into evidence a written agreement establishing that Daughter had subsequent- ly enrolled in a new agreed-upon activity, the trial court reasoned that soccer remained Daughter’s agreed-upon activity. Mother filed a petition for writ of mandamus.

Holding: Petition for Writ of Mandamus Granted

Opinion: Mother argues that the agreed order is too ambiguous to be enforceable by contempt, because it only specifies that Daughter was enrolled in soccer at the time of the agreed order, not that soccer would always re- main Daughter’s agreed-upon activity until changed by a subsequent agreement, and it fails to explain how or when Daughter’s activity would no longer be soccer. Although the agreed order states that Daughter was enrolled in soccer at the time of the agreed order, it is silent as to Daughter’s agreed-upon activity at the time of the al- leged violations – which is what matters for purposes of a contempt finding. The agreed order is, at best, ambigu- ous as to whether soccer remained Daughter’s agreed-upon activity at the time of the alleged violations. Further- more, it is undisputed that Daughter stopped participating in soccer and both parents agreed for Daughter to begin participating in tennis after her initial soccer season ended. Because Mother could have reasonably under- stood that soccer was Daughter’s agreed-upon activity only until the soccer season ended, and the agreed order does not clearly establish that soccer was Daughter’s agreed-upon activity at the time of the alleged violations, the agreed order was not sufficiently clear to support the trial court’s contempt finding. Therefore, the trial court erred in holding Mother in contempt.

SAPCR ENFORCEMENT

SAPCR
FAMILY VIOLENCE/PROTECTIVE ORDER

TRIAL COURT DID NOT ERR IN ISSUING PROTECTIVE ORDER THAT PROHIBITED EX-HUSBAND FROM GOING NEAR “ANY LOCATION” WHERE EX-WIFE WAS KNOWN TO BE, DESPITE THIS PROHIBITION NOT BEING SPECIFICALLY ENUMERATED IN TITLE IV OF TEXAS FAMILY CODE.

Rodriguez v. Doe, ___ S.W.3d ___, No. 14-18-01026-CV, 2020 WL 6791115 (Tex. App.—Houston [14th Dist.] 2020, no pet. h.) (11-19-20).

Facts: After their divorce, a 10-year protective order was entered against Ex-Husband for Ex-Wife’s benefit. The protective order prohibited Ex-Husband from, inter alia, coming within 500 feet of any location where Ex-Wife is known by Ex-Husband to be and further prohibited from remaining within 500 feet after Ex-Husband becomes aware of Ex-Wife’s presence. Ex-Husband appealed.

Holding: Affirmed

Opinion: Ex-Husband argues that the trial court erred by issuing a protective order that prohibited him from going near any location where Ex-Wife is located, because “any location” is not enumerated as one of the prohibited locations in TFC § 85.022, which contains a list of prohibitions that may be contained within a protective order. This statute gives trial courts broad discretion: “the court may order the person found to have committed family violence to perform acts specified by the court that the courts determines are necessary or appropriate to prevent or reduce the likelihood of family violence.” Additionally, the statute further provides that “[i]n a protective order, the court may prohibit the person found to have committed family violence” from certain conduct. The protective order here falls within the ambit of § 85.022. Even assuming, arguendo, that it does not fall within § 85.022, there is no authority supporting the assertion that the prohibitions set forth in § 85.022 were intended to be an exhaus- tive list of remedies available to a trial court when issuing a protective order. Such an interpretation is contrary to the legislative intent. Accordingly, the trial court did not err in prohibiting Husband from going within 500 feet of any location where Wife is known to be.

TRIAL COURT DID NOT ERR IN DENYING WOMAN’S APPLICATION FOR PROTECTIVE ORDER.

Scott v. Wooley, No. 02-19-00318-CV, 2020 WL 7063292 (Tex. App.—Fort Worth 2020, no pet. h.) (mem. op.) (12-03-20).

Facts: Woman filed an application for a protective order against Man, in which she alleged that she had been raped by Man. At the hearing thereon, Woman called Man to testify; however, Man invoked his 5th Amendment right against self-incrimination and refused to testify. Woman, who was 19, testified that Man, who was 52, was her supervisor at the restaurant where she worked. Woman testified that, after Man repeatedly badgered her, she finally went on several dates with him. Woman testified that, on one occasion, Man invited her to a Super-Bowl party that he was throwing; however, when she arrived, she discovered that she was the only one in attendance. Woman testified that she took drugs at this event, which caused her to fall asleep. Woman testified that, when she awoke, her pants were on the floor and Man was on top of her. Woman told several people about the assault, but that she never reported it to the police, because she was afraid of not being believed. Woman further testified that, after this incident, Man threatened to kill her and her family if she did not move in with him, which she reluc- tantly did. Woman’s mother testified that she was fearful for Woman after reading text messages sent by Man to Woman, but that she has never directly met Man. The text messages referenced by Woman’s mother were con- sidered by the trial court, but did not contain explicit threats against Woman. After Woman rested her case, Man moved for a directed verdict, alleging that Woman had failed to show that family violence was likely to occur in the future. The trial court granted Man’s request for a directed verdict, finding that Woman had failed to establish that family violence was likely to occur in the future. In the order denying Woman’s application for protective order, the trial court explicitly found that family violence had not occurred and was not likely to occur in the future. Woman appealed.

Holding: Affirmed

Opinion: Woman first argues that the trial court erred by including in its final order a finding that Man had not committed family violence, because the trial court never made such a finding at the close of the protective-order hearing. Although the trial court did not make an explicit finding on whether or not family violence had occurred in the past at the close of the protective-order hearing, it was required to do so and it eventually included such a finding in its order denying Woman’s application for a protective order. There is no reason that the trial court was prevented from including this finding in its final order just because it did not explicitly make such a finding at the close of the protective-order hearing. Furthermore, because the trial court could have denied Woman’s application for a protective order regardless of whether it found that family violence had occurred (i.e., because it had already found that family violence was not likely to occur in the future), Woman was not harmed by the trial court’s inclu- sion of this finding in its final order – even assuming, arguendo, that the inclusion of such a finding was errone- ous.

Woman next argues that the denial of her application for a protective order is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. However, the trial court, as the sole judge of witnesses’ credibility, was permitted to disbelieve Woman’s testimony. Because Man never testified, the only other witness at the protective-order hearing was Woman’s mother, who had no direct contact with Man. Ad- ditionally, the text messages considered by the trial court contain no direct threats against Woman, and therefore do not require reversal of the trial court’s order. Furthermore, while the trial court is permitted to draw negative inferences against Man for refusing to testify, it was not required to do so. Accordingly, the trial court’s order deny- ing Woman’s application for a protective order is not so against the great weight and preponderance of the evi- dence as to be clearly wrong and unjust.

EVIDENCE SUFFICIENT TO SUPPORT ISSUANCE OF PROTECTIVE ORDER AGAINST FATHER. HOWEV- ER, LIFETIME-DURATION OF PROTECTIVE ORDER ERRONEOUS IN ABSENCE OF STATUTORILY RE- QUIRED FINDINGS AND CONFLICTING PROVISIONS PROHIBITING FATHER FROM BEING AROUND CHILD WHILE SIMULTANEOUSLY PROVIDING FOR FATHER’S POSSESSION OF CHILD IMPROPER.

Lewis v. Yancy, No. 01-19-00348-CV, 2020 WL 7251448 (Tex. App.—Houston [1st Dist.] 2020, no pet. h.) (mem. op.) (12-10-20).

Facts: Mother and Father were in a dating relationship for 7 years, during which Child was born. Eventually, Mother filed an application for a protective order against Father. At the hearing thereon, Mother testified to nu- merous incidents involving Father physically abusing Mother, sometimes in front of Child, and Father making threats of physical violence against Mother, sometimes while wielding a loaded firearm. Mother testified that sev- eral of these incidents occurred at times where Father believed that Mother was going to take Child from him. Mother called several collateral witnesses, who testified to having knowledge of Father making threats of physical violence against Mother and to Mother’s fear of Father. Father testified that, except for one incident, none of the other incidents alleged by Mother had ever taken place. Father testified that, to the contrary, Mother had been violent against him on several occasions in the past. Father further testified that there is no possibility of him harming Mother in the future, because they had not lived together for approximately a year and they only com- municate about Child now. After this hearing, the trial court entered a protective order against Father, which pro- hibited Father from going within 400 feet of Child; however, it also provided for exchanges of possession of Child to occur at a secure public location. The protective order also contained a provision stating that it “shall continue in full force and effect for the life of [Mother] and until [C]hild reaches the age of 18.” Father appealed.

Holding: Affirmed in Part; Reversed and Remanded in Part.

Opinion: Father first argues that the evidence is insufficient to support the issuance of a protective order against him. At final trial, Mother testified to numerous incidents of family violence. Mother also called as collateral wit- nesses several individuals who testified to having knowledge of Father making threats of physical violence against Mother and to Mother’s fear of Father. Although Father’s testimony contradicted Mother’s evidence, the trial court is the sole judge of the witnesses’ credibility and was free to believe Mother’s testimony and disbelieve Father’s testimony. Accordingly, there is sufficient evidence to support the trial court’s finding that family violence had occurred in the past. Father also testified that family violence was not likely to occur in the future, because he had not lived with Mother for approximately a year and only communicated with her regarding Child. However, Mother’s testimony regarding Father’s repeated acts and threats of physical violence against her on occasions during which he believed that Mother was going to take Child from him is sufficient evidence to support the trial

court’s finding that family violence is likely to occur in the future due to their continued roles as parents of Child. As such, the evidence is sufficient to support the trial court’s issuance of a protective order against Father.

Father next argues that the trial court erred in ordering that the protective order would remain in effect for more than 2 years. If a trial court renders a protective order for a period of more than 2 years, it is required to in- clude specific additional findings under TFC § 85.025(a-1). Specifically, a trial court is required to find that the re- spondent either committed an act constituting a felony involving family violence, caused serious bodily injury to the applicant, or was the subject of two or more protective orders protecting the applicant. Here, the trial court made no such findings. As such, it was improper for the protective order to remain in effect for more than 2 years.

Lastly, Father argues that the provisions in the protective order providing for his possession of Child con- flict with the provisions prohibiting him from being within 400 feet of Child. The protective order’s lifetime prohibi- tion of contact with Child effectively terminates Father’s rights with respect to possession of Child, while simulta- neously providing for possession of Child. These provisions are in such conflict that law enforcement officers could not properly execute the protective order “without ascertainment of facts not stated therein,” which renders it erroneous. Accordingly, the trial court erred in prohibiting Father from being within 400 feet of Child while simulta- neously providing for Father to have possession of Child.

EVIDENCE SUFFICIENT TO SUPPORT TRIAL COURT’S FINDING THAT FATHER STALKED MOTHER, WARRANTING PROTECTIVE ORDER.

McDaniel v. Johnson, No. 07-20-00096-CV, 2020 WL 7828804 (Tex. App.—Amarillo 2020, no pet. h.) (mem. op.) (12-31-20).

Facts: Father was convicted of possession of child pornography and incarcerated. While Father was incarcer- ated, Mother filed for and obtained a divorce from Father. Father called Mother from prison frequently, threatening to make her life miserable and take Child away from her. Mother eventually had the prison authorities block her phone number so that Father could not call her. Thereafter, Father filed suit to remove Child from Mother’s care, although it was unsuccessful. Eventually, Mother filed an application for a protective order against Father. At the hearing thereon, Mother testified to 2 instances of family violence, their marital history, and Father’s conviction and subsequent incarceration. Mother further testified to receiving repeated and threatening phone calls from Fa- ther. Mother introduced into evidence text messages, showing that Father continuously texted Mother despite Mother not responding to any of Father’s messages. Mother testified that, despite her contact information being redacted from the parties’ divorce decree, Father continued to locate her home and work addresses. Mother testi- fied that she was afraid that Father would hurt her and that she just wanted Father to leave her alone. A police investigator testified that, after reviewing text messages, calls, and voicemails from Father to Mother, she be- lieved Father’s conduct to constitute stalking and she asked the trial court to enter a protective order against Fa- ther. Father denied stalking or harassing Mother, instead asserting that he simply contacted Mother to obtain in- formation on significant events in Child’s life and Child’s health, which he is entitled to seek. Father testified that, even if Mother felt harassed and threatened by his actions, no reasonable person would feel harassed and threatened by his actions. At the conclusion of the hearing, the trial court found that Father had engaged in stalk- ing and accordingly granted a protective order against Father. Father appealed.

Holding: Affirmed

Opinion: Father argues that the evidence is insufficient to support the trial court’s finding that he engaged in stalking. At the protective-order hearing, Mother testified to 2 instances of family violence, their marital history, and Father’s conviction. Both Mother and the police investigator testified to repeated phone calls and text mes- sages from Father to Mother, which they both found harassing and threatening. Mother further testified that Fa- ther kept on locating her despite her contact information remaining private. Although Father contends that no rea- sonable person would feel harassed and threatened by his actions, the police investigator concurred in interpret- ing Father’s actions as harassing and threatening. Furthermore, the trial court, as fact finder, was entitled to dis- believe Father’s testimony and to believe Mother’s testimony. As such, the trial court’s finding that Father en- gaged in stalking against Mother is supported by sufficient evidence.

MISCELLANEOUS

CHILD LACK STANDING TO CHALLENGE MARITAL-PROPERTY AGREEMENT ENTERED INTO BY DECE- DENT.

Moody v. Moody, ___ S.W.3d ___, No. 14-18-01018-CV, 2020 WL 6575619 (Tex. App.—Houston [14th Dist.] 2020, no pet. h.) (11-10-20).

Facts: Husband and Wife entered into a marital-property agreement (“Agreement”), which converted some of Husband’s separate property into community property. Thereafter, Husband died, leaving a will, and was survived by, inter alia, Wife and Child, who was a daughter from a prior marriage. Husband’s will leaves his estate almost entirely to a trust, except for a small portion that is left to Wife. 2 years after Husband’s will was admitted to pro- bate, Child filed a declaratory-judgment suit, seeking a declaration that the Agreement was void and unenforcea- ble. According to Child, Husband lacked the capacity to enter into the Agreement. After final trial, the trial court granted Wife’s declaratory judgment, finding that Husband lacked capacity to enter into the Agreement. The trus- tee of Husband’s trust (“Trustee”) appealed.

Holding: Reversed and Rendered

Opinion: Trustee argues that Child lacks standing to challenge the Agreement. TFC § 4.205(c) provides that, if a proceeding regarding enforcement of a conversion agreement occurs after the death of the spouse against whom enforcement is sought, the proof required may be made by an heir of the spouse or the personal representative of the estate. Unfortunately, the TFC does not define “heir;” however, the Estates Code defines “heir” as one entitled to part of an estate if the decedent dies intestate. Applying this definition, there is no heir in this case, because Husband did not die intestate; he died leaving a will. Moreover, his will is uncontested and Child is not even a de- visee under the will.

Even assuming, arguendo, that Child is an “heir,” her argument that she has standing under the TFC to challenge the Agreement is flawed. § 4.205(c) enables an heir or a personal representative to provide the requi- site proof if a proceeding occurs after the death of the spouse against whom enforcement is sought. It does not provide that heirs have standing to challenge conversion agreements – it simply names two categories of litigants who might be entitled to assert a claim. Furthermore, other sections of the TFC contain specific provisions for standing, whereas the statute at issue does not. Had the Legislature intended to confer standing to heirs to chal- lenge conversion agreements, presumably that language would be present in § 4.205(c). Therefore, Child does not have standing to challenge the Agreement under the TFC.

TRIAL COURT PROPERLY DENIED MOTHER’S MOTION TO DISMISS PURSUANT TO THE TEXAS CITI- ZENS PARTICIPATION ACT (“TCPA”).

Morris v. Daniel, ___ S.W.3d ___, No. 01-20-00148-CV, 2020 WL 7062588 (Tex. App.—Houston [1st Dist.] 2020, no pet. h.) (12-03-20).

Facts: Mother and Father entered into an MSA regarding custody of Child. The MSA contained, in relevant part, a confidentiality clause barring Mother and Father from disclosing information relating to the custody dispute to third parties. Father later sued Mother for breach of contract, alleging that she breached the MSA when she gave a copy of the MSA to a third party in an unrelated lawsuit in which Father’s new wife was a litigant and when she disclosed the terms of the MSA in a letter to Child’s school. Mother filed a motion to dismiss pursuant to the TCPA, alleging that her actions related to a matter of public concern (namely, Child’s safety and education). The trial court denied Mother’s motion to dismiss. Mother appealed.

Holding: Affirmed

Opinion: Mother argues that the trial court erred in denying her motion to dismiss, because her actions qualify as exercises of her rights of free speech and association, because they concern Child’s safety and education, which she characterizes as a matter of public concern. However, the breach of contract suit and the actions giving rise to it concern the litigants and Child, not the broader public. This concern is too attenuated to be a matter of public concern under the TCPA. Furthermore, Mother’s argument that her actions concerned Child’s safety and educa- tion wholly fails to address Father’s claim that Mother shared a copy of the MSA with a third party in an unrelated lawsuit in which Father’s new wife was a litigant. This action bears no obvious relation to Child’s safety and edu- cation, and Mother does not even argue that it does. Instead, Mother argues that there is insufficient evidence that she shared the MSA with this third party. However, whether there is sufficient evidence that Mother shared the MSA with a third party is relevant to the second step of a TCPA-dismissal analysis (i.e., whether Father has made a prima facie case in support of each element of his breach-of-contract claim), not the first step (i.e., wheth- er Mother’s actions fall within the scope of the TCPA). Therefore, Mother failed to meet her initial burden under the TCPA to show that her actions fell within the scope of the TCPA and, as such, the trial court did not err in denying her motion to dismiss.

TRIAL COURT PROPERLY DENIED MOTION TO DISMISS UNDER TEXAS CITIZENS PARTICIPATION ACT (“TCPA”) FILED MORE THAN 60 DAYS AFTER SERVICE OF LEGAL ACTION.

In re C.T.H., ___ S.W.3d ___, No. 05-19-01476-CV, 2020 WL 7351135 (Tex. App.—Dallas 2020, no pet. h.) (12- 15-20).

Facts: Grandparents intervened in the midst of a modification proceeding involving Mother and Father. In re- sponse, Mother requested injunctive relief, prohibiting Grandparents from, inter alia, “[c]ontacting or communi- cating directly with the Children” and “disturbing the peace of the Children.” In support, Mother cited numerous occasions during which Grandparents had allegedly caused Children to experience stress, anxiety, and fear. 77 days later, Grandparents filed a motion to dismiss Mother’s request for injunctive relief on the ground that it violat- ed their right of free speech and association. Notably, however, Grandparents did not cite or mention the TCPA in their motion to dismiss. After a hearing, the trial court’s associate judge denied Grandparents’ motion to dismiss. Grandparents then filed an amended petition to modify and requested a de novo appeal of the associate judge’s denial. Mother filed a response to Grandparents’ amended petition to modify, requesting, inter alia, the same in- junctive relief she had sought against Grandparents initially. Less than a month later, Grandparents filed a sup- plemental motion to dismiss, in which they again requested dismissal of Mother’s request for injunctive relief – this time under the TCPA. After the hearing on Grandparents’ de novo appeal, the trial court again denied Grandpar- ents’ motion to dismiss. Grandparents appealed.

Holding: Affirmed

Opinion: Grandparents argue that the trial court erred in denying their motion to dismiss. However, under the TCPA, a motion to dismiss must be filed within 60 days of the date of service of the legal action. Here, Grandpar- ents’ original motion to dismiss was not filed until 77 days after Mother’s request for injunctive relief. Furthermore, Grandparents’ original motion to dismiss did not even reference, cite to, or request dismissal pursuant to the

TCPA. Thereafter, when Mother filed her response to Grandparents’ amended petition to modify, she simply re- newed her request for the same injunctive relief she had sought against Grandparents initially. Because her re- quested injunctive relief remained unchanged, the 60-day deadline under the TCPA did not begin anew. There- fore, even though Grandparents’ supplemental motion to dismiss was filed less than 60 days after Mother’s re- sponse to their amended petition, their supplemental motion to dismiss was still untimely – as it was filed more than 60 days after Mother’s initial request for injunctive relief. Therefore, Grandparents did not carry their initial burden to file their motion to dismiss timely under the TCPA and the trial court did not err in denying it.

JURY CHARGE IN SUIT INVOLVING ALLEGED SAME-SEX INFORMAL MARRIAGE PURPORTEDLY EN- TERED INTO PRIOR TO OBERGEFELL UPHELD ON APPEAL.

Hinojosa v. LaFredo, No. 05-18-01543-CV, 2020 WL ####### (Tex. App.—Dallas 2020, no pet. h.) (mem. op.) (12-31-20).

Facts: Man 1 and Man 2 met in New York in 1997. Eventually, Man 1 and Man 2 planned and participated in a ceremony on October 26, 2000. According to Man 1, this was a wedding ceremony; however, according to Man 2, this was a non-marital ceremony to celebrate the couple’s commitment to each other. Eventually, the parties moved to Texas, and, in 2015 (after issuance of the Obergefell v. Hodges decision), Man 1 filed for divorce from Man 2. In response, Man 2 denied the existence of a marriage. At final trial, the jury charge included questions asking whether the parties were informally married and, if so, when they were informally married. The jury charge further included an instruction that, “[p]rior to June 26, 2015, Texas did not legally recognize same sex marriage.” Man 1 objected to the inclusion of this jury instruction, arguing that it would confuse the jury. Man 1 also request- ed the inclusion of a question asking “[d]id [Man 1] and [Man 2] become married on October 26, 2000?” The trial court denied the inclusion of this question in the jury charge and overruled Man 1’s objection to the proposed jury instruction. Before delivering its verdict, the jury asked the presiding judge whether, “If a same sex couple met the requirements of informal marriage before June 26, 2015, does the Obergefell decision state whether the effective date of the informal marriage is the date of the Supreme Court decision or the date the conditions were met?” The trial court responded that “[y]ou have all the law and instructions to answer the question in the jury charge.” Thereafter, the jury returned a verdict that no informal marriage existed between the parties, which the trial court incorporated into a final order. Man 1 appealed.

Holding: Affirmed

Opinion: Man 1 first argues that the trial court erred in refusing his request that the jury charge include a question as to whether he and Man 2 were ceremonially (not informally) married. Man 1’s requested jury charge simply asked, “Did [Man 1] and [Man 2] become married on October 26, 2000?” However, the TFC sets forth several re- quirements to enter into a valid ceremonial marriage. When submitting his proposed jury charge, Man 1 did not include any instruction on what was required to be ceremonially married in Texas. Furthermore, Man 1 did not request granulated questions for the jury to answer whether each of the individual requirements of a valid cere- monial marriage were met. Instead, Man 1 simply included a question asking whether the parties became married on October 26, 2000, without defining the term “married” or instructing the jury as to what requirements they had to meet to become married under Texas law. Without such instructions or definition, Man 1 failed to submit a sub- stantially correct proposed charge. Accordingly, the trial court did not err in declining to include Man 1’s proposed question in the jury charge.

Man 1 next argues that inclusion in the jury charge of the instruction that, “[p]rior to June 26, 2015, Texas did not legally recognize same sex marriage” was confusing to the jury and caused the rendition of an improper judgment. Man 1 points to the question the jury sent to the presiding judge during their deliberations as proof that the objected-to instruction caused confusion. However, the clarification sought by the jury regarding the “effective date” of the marriage is immaterial to the threshold question presented to the jury regarding whether the parties met the requirements of an informal marriage in the first place. Furthermore, both parties had the opportunity dur- ing their closing arguments to explain to the jury the law surrounding pre-Obergefell same-sex informal marriages to clear up any confusion. Accordingly, the inclusion of the objected-to instruction did not probably cause rendition of an improper judgment.

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