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TRIAL COURT ERRED IN GRANTING MOTION FOR NEW TRIAL AFTER ENTRY OF DIVORCE DECREE BASED UPON MEDIATED SETTLEMENT AGREEMENT.

In re Willeford, No. 04-20-00495-CV, 2021 WL 356242 (Tex. App.—San Antonio 2021, orig. proceeding) (mem. op.) (02-03-21).

Facts: During the pendency of their divorce suit, Husband and Wife entered into an MSA. Thereafter, the trial court entered an agreed divorce decree based upon the MSA. Husband subsequently filed a motion for new trial, in which he argued that there were disagreements with Wife regarding the contents of the agreed divorce decree, child support was improperly calculated at mediation, and Wife violated the MSA’s conservatorship provisions. Husband’s motion was not accompanied by any evidence. At the hearing thereon, no testimony or other evidence was presented. At the conclusion of the hearing, the trial court granted Husband’s motion for new trial, vacated the divorce decree, and ordered the case be “reinstated to the position the matter held” prior to execution of the MSA. Wife filed a petition for writ of mandamus.

Holding: Petition for Writ of Mandamus Granted.

Opinion: Wife argues that the trial court erred in granting Husband’s motion for new trial. In his motion for new trial, Husband argued that there were disagreements with Wife regarding the contents of the agreed divorce de- cree, child support was improperly calculated at mediation, and Wife violated the MSA’s conservatorship provi- sions. These grounds provided no basis to grant a motion for new trial. Husband did not argue that the MSA did not satisfy the statutory requirements for MSAs. Furthermore, Husband did not introduce any evidence in his mo- tion or during the hearing thereon to support his grounds for a new trial, Wife’s conduct after the MSA was exe- cuted does not provide any defense to the formation of the MSA as a contract, and Husband’s bare and unsub- stantiated allegation that child support was incorrectly calculated provided an insufficient basis for relief from the divorce decree rendered on the MSA. Accordingly, the trial court abused its discretion in granting Husband’s mo- tion for new trial.

 

ASSOCIATE JUDGE HAD AUTHORITY TO TRANSFER DIVORCE SUIT TO OTHER COUNTY. HOWEVER, TRIAL COURT ERRED IN SIGNING DIVORCE DECREE THAT DEPARTED FROM TERMS OF MEDIATED SETTLEMENT AGREEMENT.

Maraio-Wilhoit v. Wilhoit, No. 11-18-00312-CV, 2021 WL 389243 (Tex. App.—Eastland 2021, no pet. h.) (mem. op.) (02-04-21).

Facts: Wife filed for divorce in Lubbock County. However, at the time of filing, Wife was a resident of Midland County. Husband filed a motion to transfer venue to Midland County, which was granted after a hearing by an associate judge. Wife subsequently filed a request for a de novo hearing, but a de novo hearing was never held. Notably, Wife’s request for a de novo hearing did not address the venue transfer, but instead addressed another matter from the hearing. After the suit was transferred to Midland County, the parties attended mediation and en- tered into an MSA, which provided, inter alia, that each party would pay their own attorney’s fees. Thereafter, Husband submitted a proposed divorce decree to the trial court, which incorporated the terms of the MSA, except for an award of attorney’s fees to Husband. After the trial court entered the divorce decree, Wife appealed.

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

Opinion: Wife first argues that the order transferring the suit to Midland County is void, because it was signed by an associate judge. However, the Texas Government Code, which provides authority for the appointment of as- sociate judges in cases not involving a SAPCR, authorizes an associate judge to rule on pretrial motions in a civil case that are referred to the associate judge. Wife also argues that, because a de novo hearing did not occur de- spite her timely request, the transfer order is void, because it was not signed and adopted by the referring court. However, Wife did not request a de novo hearing on the venue transfer; instead, she requested a de novo hearing of an unrelated matter from the same hearing. Because Wife did not actually request a de novo hearing on the

issue of the venue transfer, the order transferring venue automatically became an order of the referring court. Therefore, the order transferring venue is not void.

Wife next argues that the divorce decree contained additional attorney’s-fees language not set forth in the MSA. Under the MSA, the parties agreed that each party would pay their own attorney’s fees. The divorce decree, however, contained an award of attorney’s fees to Husband. Because this section of the divorce decree departed from the terms of the MSA, the trial court erred in entering this portion of the divorce decree.

 

TRIAL COURT ERRED IN FAILING TO GRANT MANDATORY VENUE-TRANSFER REQUEST.

In re Lourens, No. 06-20-00098-CV, 2021 WL 377195 (Tex. App.—Texarkana 2021, orig. proceeding) (mem. op.) (02-04-21).

Facts: In 2018, the Bowie-County trial court awarded to Mother the exclusive right to designate Child’s primary residence. Thereafter, Child lived with Mother in Parker County. In 2020, Father filed a modification suit. Mother filed a motion to transfer venue to Parker County, which the Bowie-County trial court denied. Mother filed a peti- tion for writ of mandamus.

Holding: Petition for Writ of Mandamus Granted.

Opinion: Mother argues that the trial court erred in denying her motion to transfer. It is undisputed that Child re- sided in Parker County from the time of the prior order in 2018 through filing the modification suit in 2020. There- fore, because Child resided in Parker County during the 6-month period preceding the commencement of suit, the trial court had a mandatory duty to transfer the proceeding to Parker County. When the trial court failed to do so, it erred.

 

FATHER, WHO WAS CALIFORNIAN EQUIVALENT OF POSSESSORY CONSERVATOR UNDER PRIOR OR- DER, NOT ENTITLED TO FIT-PARENT PRESUMPTION.

In re B.B., S.W.3d , No. 08-20-00247-CV, 2021 WL 508357 (Tex. App.—El Paso 2021, orig. proceeding) (02-11-21).

Facts: Under a prior order in California, Mother was awarded custody of Child, and Father was simply awarded visitation. Thereafter, Mother and Child moved to El Paso. Eventually, Child tested positive for drugs, and TDFPS removed Child from Mother’s care. As a result, Father filed a modification suit. At an adversarial hearing, a case- worker testified that TDFPS was unsure where Father was living and that Father had a history of substance abuse, DWIs, and domestic violence. Mother testified that Father had only seen Child a handful of times in the preceding 6 years. Mother also testified that Father had committed domestic violence against her in the past and that she had previously obtained a final protective order against Father. Mother testified that Father had visited Child for two weeks at one point and had been drunk every day during that visitation. Mother also testified that Father had an unstable housing situation and has couch-surfed for years. Father denied all of the caseworker’s and Mother’s allegations. At the conclusion of the hearing, the trial court appointed TDFPS as Child’s MC. Father filed a petition for writ of mandamus.

Holding: Petition for Writ of Mandamus Denied.

Opinion: Father first argues that the trial court erred in not appointing him as MC, because he avers that the fit- parent presumption set forth in In re C.J.C. applies to him and no evidence was presented to rebut it. However, In re C.J.C. only extended the fit-parent presumption to parents who had previously been named a Child’s MC. Fa- ther, however, has never been named Child’s MC; instead, Father was named the California equivalent of a PC in the prior order. Therefore, Father’s parental fitness was an open fact question the trial court could resolve based on the evidence before it, which it did. Although Father denied the allegations, the trial court heard testimony that Father had only seen Child a handful of times in the preceding 6 years, had committed domestic violence against

Mother, had unstable housing, abused alcohol, and had several DWIs. The trial court, as factfinder, had the dis- cretion to believe the caseworker’s and Mother’s testimonies and to disbelieve Father’s denial of their allegations. Accordingly, there is sufficient evidence to support the trial court’s finding that it would be inappropriate to place Child with Father.

 

HEALTH-INSURANCE AND REAL-PROPERTY PROVISIONS OF DIVORCE DECREE NOT ENFORCEABLE BY CONTEMPT.

In re Medina, No. 04-20-00390-CV, 2021 WL 603360 (Tex. App.—San Antonio 2021, orig. proceeding) (mem. op.) (02-17-21).

Facts: In the parties’ divorce decree, Husband was ordered to maintain health insurance for Children and, “in the event [Wife] relocates the children’s primary residence to Mexico,” he was required to provide $200 per month in medical support beginning on the first month after the relocation. The divorce decree further ordered the sale of real property and required the parties to “list the property with a duly licensed real estate broker.” Several years later, Wife filed an enforcement action, seeking to hold Husband in contempt for failing to provide medical support and for failing to sign a listing agreement with a real-estate broker. At the conclusion of the hearing thereon, the trial court held Husband in contempt for failing to provide $200 in medical support under the divorce decree and for failing to sign a listing agreement with a real-estate broker. Husband filed a petition for writ of mandamus.

Holding: Petition for Writ of Mandamus Granted

Opinion: Husband first argues that the trial court erred in holding him in contempt for failing to provide $200 per month in medical support, because the medical-support provisions sought to be enforced against him are not en- forceable by contempt. The medical-support provisions of the divorce decree require Husband to provide health insurance for Children and, “in the event [Wife] relocates the children’s primary residence to Mexico,” to provide

$200 per month in medical support beginning on the first month after the relocation. The start date for the pay- ment of medical support is contingent upon the occurrence of a future event, Wife relocating to Mexico, which renders these provisions unenforceable by contempt. Furthermore, the phrase “relocate[ing] the children’s prima- ry residence to Mexico” is ambiguous and would further render these provisions unenforceable by contempt. Therefore, the trial court erred in holding Husband in contempt for failing to provide $200 per month in medical support.

Husband next argues that the trial court erred in holding him in contempt for failing to sign a listing agreement with a real-estate broker, because the provisions sought to be enforced against him are not enforcea- ble by contempt. The divorce decree requires the parties to “list the property with a duly licensed real estate bro- ker;” however, the divorce decree does not clearly and unambiguously require Husband to sign a listing agree- ment. Therefore, these provisions are not enforceable by contempt and the trial court erred in holding Husband in contempt for failing to sign a listing agreement with a real-estate broker.

 

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