DIVORCE PROCEDURE AND JURISDICTION DIVORCE
TESTIMONY AT DEFAULT PROVE-UP HEARING THAT DIVORCE DECREE INCLUDED ALL OF THE MARITAL PROPERTY, WITHOUT MORE, INSUFFICIENT TO SUPPORT TRIAL COURT’S SUBSEQUENT DIVISION OF THE COMMUNITY ESTATE.
Welch v. Welch, No. 05-19-01260-CV, 2020 WL 6304992 (Tex. App.—Dallas 2020, no pet. h.) (mem. op.) (10-28-20).
Facts: Husband filed for divorce. Although Wife was served with citation, she did not file an answer or appear at the prove-up hearing. At the prove-up hearing, Husband testified, in relevant part, that he was presenting a proposed divorce decree to the trial court and that it included all of the marital property. At the conclusion of the hearing, the trial court signed Husband’s proposed divorce decree, which, inter alia, divided the parties’ marital property. Wife appealed.
Holding: Affirmed in Part; Reversed and Remanded in Part.
Opinion: Wife asserts that the trial court abused its discretion in dividing the marital estate, because the evidence is insufficient to support the property division. Husband’s testimony at the prove-up hearing regarding the parties’ marital property was limited to the mere fact that his proposed divorce decree divided all of the marital property. Husband did not present any information regarding the value of the property or debts, nor did he establish that the division was fair and equitable. Accordingly, the trial court had insufficient evidence with which to divide the parties’ marital property equitably and thus abused its discretion with regard to the division of the parties’ estate.
MARITAL PROPERTY AGREEMENTS
TRIAL COURT ERRED IN FINDING THAT NO PREMARITAL AGREEMENT EXISTED WHERE PARTIES MARRIED IN CHIHUAHUA, MEXICO AND VALIDLY ENTERED INTO “SEPARATE PROPERTY REGIME” UNDER MEXICAN LAW.
Fracciondora v. Delgado, ___ S.W.3d ___, No. 08-16-00046-CV, 2020 WL ####### (Tex. App.—El Paso 2020, no pet. h.) (10-22-20).
Facts: Husband and Wife were married in Chihuahua, Mexico. When entering into their marriage, they selected a “separate-property regime” under Mexican law. Eventually, they moved to Texas, where Wife filed for divorce. In his counterpetition, Husband alleged the existence of a Mexican premarital agreement. Wife filed an MSJ, seeking a finding that their selection of a separate-property regime pursuant to Mexican law did not meet the requirements of a valid and enforcement premarital agreement in Texas. Attached to Wife’s MSJ was the marriage certificate in which the parties selected a separate-property regime and translations of the applicable provisions of Mexican law concerning the selection of a community-property or separate-property regime. The trial court granted Wife’s MSJ, finding that Texas law applied and, because Texas is a community-property state, any foreign agreement addressing disposition of marital property was invalid. After final trial, Husband appealed.
Holding: Reversed and Remanded
Opinion: Husband argues that the trial court erred in granting Wife’s MSJ. The provisions of Mexican law attached to Wife’s MSJ require a marriage certificate to be executed under a community-property or separate-property regime. The parties’ marriage certificate specifically elects a separate-property
regime for their marriage and complies with the requirements of Mexican law. The laws of Texas and Chihuahua, Mexico, as they relate to premarital agreements, are markedly similar. Both states characterize property as either community or separate and both states allow prospective spouses a great deal of flexibility in determining the character of the various types of property that they might acquire during marriage. As such, it would not be against the public policy of Texas to enforce a premarital agreement properly executed in Chihuahua, Mexico.
Furthermore, the trial court granted Wife’s MSJ, because it believed that Texas law applied and, because Texas is a community-property state, any foreign agreement addressing disposition of marital property was invalid. To the contrary, Texas courts have held that premarital agreements entered into in another state must be evaluated by the law of the sister state. Husband and Wife chose to be married in Chihuahua, Mexico, whose laws required that their marriage be contracted under either the community-property or separate-property regime. They further chose to be married under the separate
property regime, as evidenced by their marriage certificate, which Wife attached to her MSJ. Therefore, the trial court erred when it granted Wife’s MSJ.
DIVORCE ALTERNATIVE DISPUTE RESOLUTION
HUSBAND’S MOTION TO VACATE AND MOTION TO MODIFY OR CORRECT ARBITRATOR’S AWARDS, FILED AFTER ARBITRATOR’S AWARDS WERE ALREADY CONFIRMED, WERE UNTIMELY. TRIAL COURT PROPERLY GRANTED WIFE’S APPLICATION FOR TURNOVER RELIEF WHERE SHE PROVED THAT HUSBAND OWNED PROPERTY AND HUSBAND FAILED TO PROVE THAT PROPERTY WAS EXEMPT FROM SEIZURE.
Heilmann v. Heilmann, No. 04-18-00849-CV, 2020 WL 6293446 (Tex. App.—San Antonio 2020, no pet. h.) (op. on rehearing) (10-28-20).
Facts: Husband and Wife were divorced in 2000. After several years of litigation, they agreed to and participated in arbitration. Six arbitrator’s awards were subsequently issued. Wife filed a motion to approve the arbitrator’s awards. At the hearing on her motion to approve the arbitrator’s awards, Husband orally asked for a continuance and, alternatively, a recess to allow him time to file a motion to vacate the arbitrator’s awards. The trial court denied Husband’s request and approved the arbitrator’s awards. Later that same day, Husband filed a motion to vacate the arbitrator’s award. A month later, Husband filed a motion to modify the judgment or correct the arbitrator’s awards, which the trial court denied. Wife thereafter filed an application for turnover relief. In support of her application, Wife admitted into evidence Husband’s tax returns, W-2’s, bank account statements, stock certificates, deeds, trust documents, and discovery responses. Neither party addressed whether Husband’s property was exempt from seizure. The trial court granted Wife’s application for turnover relief. Husband appealed.
Holding: Affirmed
Opinion: Husband first argues that the trial court erred by approving the arbitrator’s awards and denying his motion to vacate and motion to modify the judgment or correct the arbitrator’s awards. However, a motion to vacate arbitrator’s awards must be considered before a trial court approves the arbitrator’s awards. Here, Husband did not file his motion to vacate the arbitrator’s awards until after the trial court had already granted Wife’s motion to approve the arbitrator’s awards. Likewise, because Husband’s motion to modify the judgment or correct the arbitrator’s awards was not filed until a month after the trial court approved the arbitrator’s awards, this motion was also untimely. Husband waived his complaints with the arbitrator’s awards by not filing these two motions before the trial court approved the arbitrator’s awards.
Husband next argues that the trial court erred in granting Wife’s application for turnover relief, because Wife did not present evidence showing that Husband owned property that is not exempt from
attachment or seizure. However, Wife admitted into evidence numerous documents, including bank statements, stock certificates, deeds, and trust documents that show Husband’s ownership of property. At that point, the burden shifted to Husband to prove that the property was exempt from attachment or seizure; however, Husband did not present any evidence to meet his burden of proof. Thus, the trial court did not err in granting Wife’s application for turnover relief.
TRIAL COURT DID NOT ERR IN ENTERING DIVORCE DECREE IN THE ABSENCE OF HUSBAND’S ATTORNEY AND WITHOUT HIS SIGNATURE WHERE PARTIES HAD PREVIOUSLY READ THEIR AGREEMENT INTO THE RECORD AND TRIAL COURT HAD RENDERED JUDGMENT ON THE AGREEMENT.
Castorena v. Castorena, No. 13-18-00492-CV, 2020 WL 6343335 (Tex. App.—Corpus Christi 2020, no pet. h.) (mem. op.) (10-29-20).
Facts: Husband and Wife both appeared at a final hearing in their divorce suit and informed the trial court that they had reached a settlement agreement. No written agreement was offered into evidence, but the agreement was read into the record. Thereafter, the trial court stated that “[d]ivorce is granted. The agreement of the parties as testified to by the parties is approved by the Court” and that “[j]udgment is hereby rendered.” A few weeks thereafter, the parties reconvened for a hearing on the entry of the divorce decree and the trial court instructed the parties’ attorneys to review the decree prepared by Wife’s attorney. When the hearing resumed, Wife’s attorney advised the trial court that Husband’s attorney had left without reviewing the divorce decree. She further advised the trial court that the divorce decree was in accordance with the parties’ agreement, as previously read into the record. The trial court accordingly signed the divorce decree. Husband’s attorney eventually returned and advised the trial court that they were not in agreement with the divorce decree. Husband appealed.
Holding: Affirmed
Opinion: Husband argues that the trial court erred in rendering judgment, because his attorney lacked adequate time to review the divorce decree, the divorce decree lacked his attorney’s signature, and it was approved outside of his presence. Here, the parties read their agreement into the record and the trial court orally rendered judgment on the agreement in accordance with Rule 11 of the TRCP. Husband provides no justification for his argument that a trial court acts improperly when, after rendition, it denies a party “sufficient time to review” the proposed divorce decree and enters the divorce decree without a party’s attorney’s presence and signature on the decree. On the contrary, precedent holds that, where a divorce settlement agreement is read into the record, approved of and granted on the record, and the parties subsequently submit a proposed divorce decree signed only by one party, the trial court does not abuse its discretion in entering the judgment. Therefore, the trial court did not err in signing the divorce decree without Husband’s attorney’s signature and outside of his presence.
DIVORCE ENFORCEMENT OF PROPERTY DIVISION
WHETHER SUFFICIENT EVIDENCE OF FATHER’S ALLEGED OWNERSHIP IN FIVE BUSINESS ENTITIES EXISTED WAS IMMATERIAL WHERE CHARGING ORDER QUALIFIED ITS APPLICATION ONLY TO THOSE ENTITIES IN WHICH FATHER ACTUALLY HELD AN OWNERSHIP INTEREST. ADDITIONALLY, TRIAL COURT NOT LIMITED TO RELIEF PROVIDED FOR IN BUSINESS ORGANIZATIONS CODE IN ENFORCING MOTHER’S JUDGMENTS AGAINST FATHER’S OWNERSHIP INTEREST IN BUSINESS ENTITIES.
In re M.W.M., No. 05-19-00757-CV, 2020 WL 6054337 (Tex. App.—Dallas 2020, no pet. h.) (mem. op.) (10-14-20).
Facts: After unsuccessfully trying to collect on her judgments against Father, Mother filed an “Application for Charging Order,” asserting that Father “has a position of authority in” five separate business entities. The Application further stated that Father received distributions from one or more of the business entities. In order to collect on her judgments, Mother requested the trial court to charge Father’s interests in these entities and that no money be distributed to Father or used to pay any of Father’s personal living expenses until her judgments were fully satisfied. Mother requested that the distributions be paid directly to her, instead. Father filed a response stating that he held an ownership interest in only one of the entities. At the hearing on Mother’s Application, Mother admitted into evidence Father’s tax returns; Texas Franchise Tax Public Information Reports regarding the four disputed entities, each of which was signed by Father as “Manager;” and a Texas Franchise Tax Public Information Report for the entity in which Father conceded owning an interest, which described Father as “GP.” Following the hearing, the trial court signed a “Charging Order,” which provides that “the interest of [Father] in any and all of the [five entities] is hereby subjected to a charging order in favor of and for the benefit of [Mother];” “[a]ny money due or to become due to [Father] by reason of his interest in the partnership shall be paid directly to [Mother];” and “none of the [five entities] shall (a) pay any money to [Father], (b) pay any personal living expenses of [Father], or (c) expend any money for [Father’s] personal benefit, so long as any portion of this Court’s [judgments] remains unpaid.” Father appealed.
Holding: Affirmed
Opinion: Father first argues that there is no evidence that he holds an ownership interest in the four disputed entities. However, the Charging Order’s qualifying language charges only “the interest of [Father] in any and all of the [five entities].” If Father owns no interest in a particular entity, the Charging Order charges nothing as to that entity. Because the Charging Order does not purport to charge an interest in entities in which Father has no ownership interest, the complained-of lack of evidence of ownership interest in the four disputed entities is immaterial.
Father next argues that, although the Business Organizations Code gives judgment creditors a lien on any distributions made to a debtor on account of the debtor’s ownership interest in an entity, the Charging Order far oversteps that limitation. However, the Business Organizations Code was not the trial court’s sole means to enforce Mother’s judgments; injunctive relief is an available means to enforce a judgment. Though Mother’s Application did not specifically use the word “injunction,” her requested relief included enjoining distributions to Father or payment of his living expenses by the five entities – and the trial court granted that requested relief. Therefore, the trial court did not lack authority in entering the Charging Order.
Father finally argues that the Charging Order impermissibly interferes with Father’s interest in his current wages and, therefore, violates the Texas Constitution. However, nothing in the Charging Order places any of Father’s wages in the hands of a third party or takes them from a third party. Therefore, the Charging Order does not violate the Texas Constitution’s garnishment provision.
SAPCR PROCEDURE AND JURISDICTION
TRIAL COURT PROPERLY DENIED MOTHER’S REQUEST FOR CONTINUANCE OF TRIAL ON GROUND OF ATTORNEY ALLEGEDLY WITHDRAWING, WHERE ATTORNEY DENIED EVER REPRESENTING HER. ADDITIONALLY, TRIAL COURT PROPERLY DENIED MOTHER’S REQUEST FOR CONTINUANCE ON GROUND OF WITNESS’S ABSENCE WHERE SHE DID NOT SHOW MATERIALITY OF WITNESS’S TESTIMONY, DUE DILIGENCE IN ATTEMPTING TO PROCURE TESTIMONY (INCLUDING THROUGH DISCOVERY).
In re G.S.C., No. 14-18-00970-CV, 2020 WL 6326240 (Tex. App.—Houston [14th Dist.] 2020, no pet. h.) (mem. op.) (10-29-20).
Facts: Mother filed a modification suit, seeking appointment as SMC based upon allegations of sexual abuse against Father. Father filed a counterpetition, alleging that Mother coached Child into making false accusations of sexual assault against Father. After final trial had previously been postponed upon Mother’s repeated requests, both parties appeared for the reset final trial. While Father was represented by counsel, Mother appeared pro se. At the outset of final trial, the trial court hailed Attorney into the courtroom after Mother alleged that Attorney represented her. Attorney advised the trial court that he had not been retained by Mother. Mother subsequently conceded that she had not yet hired Attorney, but that she intended to. After both parties called several witnesses, Mother learned that Father did not call the CPS Caseworker to testify and had released her of her duty to testify despite the CPS Caseworker already being sworn in. As a result, Mother requested a continuance so that the CPS Caseworker could be called to testify. The trial court stated that it also would like to hear the CPS Caseworker testify, but denied Mother’s request for a continuance based on her history of delaying the case. At the conclusion of final trial, the trial court ordered that the parties remain JMCs and that Father have the exclusive right to determine Child’s primary residence. Mother appealed.
Holding: Affirmed
Opinion: Mother first argues that the trial court abused its discretion in denying her request for a continuance before the start of final trial on the ground that she had no counsel and that the trial court allowed Attorney to withdraw as her counsel of record. The record does not reflect that Mother ever moved for a continuance on these grounds before trial or that the trial court allowed any attorney of record withdraw at final trial. Even if Mother requested a continuance off the record, the trial court still would not have erred in denying it. When the trial court hailed Attorney into the courtroom, Attorney advised the trial court that he had not been retained by Mother. Furthermore, he never signed any pleading in the case or appeared in court to represent Mother. Attorney only appeared for the special purpose of answering the trial court’s inquiries about whether Attorney had undertaken legal representation of Mother in this case. Thus, the record shows that, even if Mother had requested a continuance on these grounds, she had no reasonable expectation that Attorney – or any other attorney – would represent her at final trial.
Mother next argues that the trial court abused its discretion by failing to continue trial on the ground that the CPS caseworker was not available to testify. After learning that Father had released the CPS Caseworker of her duty to appear at final trial, Mother requested a continuance. Mother did not explain how the absence of the CPS Caseworker’s testimony (or evidence that could be offered through her) would impact the presentation of her case. Mother also failed to demonstrate any diligence in procuring the CPS Caseworker’s testimony or that she could not have done so through pre-trial discovery. On this record, the trial court did not abuse its discretion in denying Mother’s request for a continuance on the ground that the CPS Caseworker was not available to testify.
SAPCR ALTERNATIVE DISPUTE RESOLUTION
TRIAL COURT DID NOT ERR BY ADDING EXCEPTIONS TO RIGHT-OF-FIRST-REFUSAL PROVISION IN DIVORCE DECREE WHERE PARTIES AGREED TO SIMPLE RIGHT-OF-FIRST REFUSAL PROVISION IN MEDIATED SETTLEMENT AGREEMENT AND TRIAL COURT COULD HAVE CONCLUDED THAT EXCEPTIONS SIMPLY EFFECTUATED THE INTENT AND AGREEMENT OF THE PARTIES.
In re E.W.M., No. 05-19-01005-CV, 2020 WL 6304995 (Tex. App.—Dallas 2020, no pet. h.) (mem. op.) (10-28-20).
Facts: Father filed for divorce and Mother filed a counterpetition. After attending mediation, the parties entered into an MSA. The MSA provided, in relevant part, for a “[r]ight of first refusal if the parent in possession is unable to supervise the child overnight.” The MSA acknowledged that “there may need to be interpretation of the document and an extension of the language in this document, and that all the language to be used in the order(s) may not be contained in this [MSA].” The MSA further provided that, if the parties disagreed about the interpretation of the MSA’s terms, they would return to arbitration with the mediator. However, the MSA stated that “[t]he arbitrator will not be authorized to add to or delete from the substantive provisions of th[e MSA]” (emphasis added). Thereafter, Mother and Father each presented their own versions of a divorce decree to the trial court, which slightly differed from each other with regard to their right-of-first-refusal provisions. Mother’s version of the right of first refusal included exceptions for sleep-overs with friends or family members, church activities, and school activities. Father’s version of the right of first refusal did not include these exceptions and he objected to their inclusion in the divorce decree. Both Mother and Father represented to the trial court that they were waiving their right to have the issue determined by the mediator pursuant to the MSA’s arbitration clause. At the close of the hearing, the trial court sided with Mother and included her exceptions into the language of the divorce decree’s right-of-first-refusal provision. Father appealed.
Holding: Affirmed
Opinion: Father argues that the trial court is not authorized to add a substantive provision to the divorce decree not originally contained in the MSA. The MSA stated that “[t]he arbitrator will not be authorized to add to or delete from the substantive provisions of th[e MSA].” However, the MSA acknowledged that “there may need to be interpretation of the document and an extension of the language in this document, and that all the language to be used in the order(s) may not be contained in this [MSA].” Notably, the MSA provided that the divorce decree would have a right of first refusal, but it did not specify the terms of that provision and a dispute arose between the parties regarding the terms of the right-of-first-refusal provision in the divorce decree. Both parties recognized that the MSA’s right of-first-refusal provision was insufficient for the divorce decree, and both of their versions of the right-of
first-refusal provision to be included in the divorce decree added language from that of the MSA. The trial court could have reasonably concluded that the inclusion of Mother’s proposed exceptions did not add any “substantive provisions” to the MSA, but instead constituted language to effectuate the intent and agreement of the parties concerning the right of first refusal. Sitting in the place of the mediator/arbitrator, the trial court had authority to include language to effectuate the intent and agreement of the parties. Therefore, the trial court had the authority to include Mother’s exceptions in the right-of-first-refusal provision.
SAPCR CONSERVATORSHI
TRIAL COURT ERRED IN APPOINTING THIRD PARTY AS POSSESSORY CONSERVATOR OF CHILDREN WHERE NO EVIDENCE, OTHER THAN THIRD PARTY’S UNSUPPORTED TESTIMONY, INDICATED THAT FATHER WAS AN UNFIT PARENT.
In re B.F., No. 02-20-00283-CV, 2020 WL 6074108 (Tex. App.—Fort Worth 2020, orig. proceeding) (mem. op.) (10-15-20).
Facts: Father filed for divorce from Mother. The trial court entered Temporary Orders, naming Mother and Father as JMCs of their Child. Thereafter, a second Child was born and the trial court entered Temporary Orders naming Mother and Father as JMCs of that Child. Third Party, who is unrelated to Children, intervened and filed a request for a TRO, asserting that Mother had mental-health problems and had physically abused Child in the past. The trial court issued a TRO and set a Temporary Orders hearing. At the hearing, Third Party made allegations that Father used methamphetamine and had tested positive in the past. In support, Third Party admitted into evidence drug test results for one of the Children, showing that Child tested positive for marijuana. Third Party also alleged that there was a current CPS case against Father’s girlfriend stemming from an incident where the girlfriend’s child allegedly tested positive for methamphetamine after the girlfriend and Father used it in the child’s presence. Third Party admitted the docket sheet from the CPS case into evidence, but it did not mention Father. At the end of the Temporary Orders hearing, the trial court named Mother and Father as JMCs of Child and Third Party was named as a PC of Children, being awarded possession of Children on the 2nd and 4th weekends of each month. Father filed a petition for writ of mandamus.
Holding: Petition for Writ of Mandamus Granted
Opinion: Father argues that the trial court erred in appointing Third Party as a PC of Children, because he alleged that no evidence was presented to the trial court that he is anything but a fit parent. Third Party alleged that Father had abused methamphetamine in the past, but provided no evidence to support her allegation. Although Third Party introduced a drug test result showing that one of Children tested positive for marijuana, there is nothing to tie that drug test result to any misconduct on Father’s part. Third Party also alleged that there was a current CPS case against Father’s girlfriend stemming from an incident where the girlfriend’s child allegedly tested positive for methamphetamine after the girlfriend and Father used it in the child’s presence, but the docket sheet that Third Party relied upon as support for this allegation did not even mention Father. Therefore, there is not any evidence in the record (other than Third Party’s unsupported allegations) that would indicate that Father is an unfit parent. To the contrary, Father has consistently been named a JMC in the case. Relying on the general precepts cited in In re C.J.C., 603 S.W.3d 804 (Tex. 2020) in situations where a third party seeks conservatorship, the court held that because there is no evidence that Father is unfit, which is part of the best interest element, it is Father – and not the trial court – who is to determine whether to allow Third Party conservatorship or possession of Children. Therefore, the trial court abused its discretion.
SAPCR ADOPTION
TRIAL COURT PROPERLY FOUND THAT STEP-SON WAS NOT DECEDENT’S EQUITABLY ADOPTED SON, DESPITE ABUNDANCE OF EVIDENCE SHOWING THAT THEY LIVED AS FATHER AND SON, BECAUSE THERE WAS NO EVIDENCE OF A PRESENT AGREEMENT FOR DECEDENT TO ADOPT STEP-SON.
In re Estate of Hines, No. 06-20-00007-CV, 2020 WL 5948803 (Tex. App.—Texarkana 2020, no pet. h.) (mem. op.) (10-08-20).
Facts: Decedent died and one of his heirs filed probate proceedings. A year later, Claimant (Decedent’s step-son) filed a motion for new trial, alleging that he was Decedent’s equitably adopted son and, therefore, an heir to Decedent’s estate. The trial court granted Claimant’s motion without hearing and set a second trial. At the second trial, Claimant presented an abundance of evidence showing that he considered Decedent to be his father; that, at least on some occasions, Decedent referred to Claimant as his “son;” and that Decedent spent a significant amount of time with Claimant. Likewise, there was evidence to show that Decedent, Claimant, and Claimant’s mother (Decedent’s wife) presented themselves to the public as a family. According to Claimant, Decedent had discussed with him the possibility of adoption when he was younger, but no agreement was made at that time, and Decedent and Claimant chose to put off the issue of adoption until a later date. Claimant’s mother testified that she had discussed the issue of adoption with Decedent, but he told her that he did not “need a piece of paper to tell [him] who [his] kid [was] or tell [him] who [his] son [was].” At the end of the second trial, the trial court held that Claimant was not Decedent’s equitably adopted son. Claimant appealed.
Holding: Affirmed
Opinion: Claimant presented an abundance of evidence showing that he considered Decedent to be his father, that, at least on some occasions, Decedent referred to Claimant as his “son,” and that Decedent spent a significant amount of time with Claimant. Likewise, there was evidence to show that Decedent, Claimant, and Claimant’s mother presented themselves to the public as a family. Yet, to establish that he was Decedent’s equitably adopted son, Claimant would have had to prove that Decedent agreed with Claimant to be adopted, or with Claimant’s mother that he would adopt Claimant. However, there was no evidence presented to show that Decedent had entered into a present agreement with Claimant’s mother to adopt Claimant, just some evidence indicating that Decedent had discussed adopting Claimant in the future. There was even evidence presented that Decedent did not feel the necessity of adopting Claimant, because he already felt that Claimant was his son. Because there is some evidence supporting the trial court’s decision, the trial court did not abuse that discretion in determining that Decedent did not equitably adopt Claimant.
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D.B.A. Family Law Section Case Law Update November 11, 2020
D.B.A. Family Law Section Case Law Update November 11, 2020
| DIVORCE PROCEDURE AND JURISDICTION |
TESTIMONY AT DEFAULT PROVE-UP HEARING THAT DIVORCE DECREE INCLUDED ALL OF THE MARITAL PROPERTY, WITHOUT MORE, INSUFFICIENT TO SUPPORT TRIAL COURT’S SUBSEQUENT DIVISION OF THE COMMUNITY ESTATE.
Welch v. Welch, No. 05-19-01260-CV, 2020 WL 6304992 (Tex. App.—Dallas 2020, no pet. h.) (mem. op.) (10-28-20).
Facts: Husband filed for divorce. Although Wife was served with citation, she did not file an answer or appear at the prove-up hearing. At the prove-up hearing, Husband testified, in relevant part, that he was presenting a proposed divorce decree to the trial court and that it included all of the marital property. At the conclusion of the hearing, the trial court signed Husband’s proposed divorce decree, which, inter alia, divided the parties’ marital property. Wife appealed.
Holding: Affirmed in Part; Reversed and Remanded in Part.
Opinion: Wife asserts that the trial court abused its discretion in dividing the marital estate, because the evidence is insufficient to support the property division. Husband’s testimony at the prove-up hearing regarding the parties’ marital property was limited to the mere fact that his proposed divorce decree divided all of the marital property. Husband did not present any information regarding the value of the property or debts, nor did he establish that the division was fair and equitable. Accordingly, the trial court had insufficient evidence with which to divide the parties’ marital property equitably and thus abused its discretion with regard to the division of the parties’ estate.
| DIVORCE MARITAL PROPERTY AGREEMENTS |
TRIAL COURT ERRED IN FINDING THAT NO PREMARITAL AGREEMENT EXISTED WHERE PARTIES MARRIED IN CHIHUAHUA, MEXICO AND VALIDLY ENTERED INTO “SEPARATE PROPERTY REGIME” UNDER MEXICAN LAW.
Fracciondora v. Delgado, ___ S.W.3d ___, No. 08-16-00046-CV, 2020 WL ####### (Tex. App.—El Paso 2020, no pet. h.) (10-22-20).
Facts: Husband and Wife were married in Chihuahua, Mexico. When entering into their marriage, they selected a “separate-property regime” under Mexican law. Eventually, they moved to Texas, where Wife filed for divorce. In his counterpetition, Husband alleged the existence of a Mexican premarital agreement. Wife filed an MSJ, seeking a finding that their selection of a separate-property regime pursuant to Mexican law did not meet the requirements of a valid and enforcement premarital agreement in Texas. Attached to Wife’s MSJ was the marriage certificate in which the parties selected a separate-property regime and translations of the applicable provisions of Mexican law concerning the selection of a community-property or separate-property regime. The trial court granted Wife’s MSJ, finding that Texas law applied and, because Texas is a community-property state, any foreign agreement addressing disposition of marital property was invalid. After final trial, Husband appealed.
Holding: Reversed and Remanded
Opinion: Husband argues that the trial court erred in granting Wife’s MSJ. The provisions of Mexican law attached to Wife’s MSJ require a marriage certificate to be executed under a community-property or separate-property regime. The parties’ marriage certificate specifically elects a separate-property
regime for their marriage and complies with the requirements of Mexican law. The laws of Texas and Chihuahua, Mexico, as they relate to premarital agreements, are markedly similar. Both states characterize property as either community or separate and both states allow prospective spouses a great deal of flexibility in determining the character of the various types of property that they might acquire during marriage. As such, it would not be against the public policy of Texas to enforce a premarital agreement properly executed in Chihuahua, Mexico.
Furthermore, the trial court granted Wife’s MSJ, because it believed that Texas law applied and, because Texas is a community-property state, any foreign agreement addressing disposition of marital property was invalid. To the contrary, Texas courts have held that premarital agreements entered into in another state must be evaluated by the law of the sister state. Husband and Wife chose to be married in Chihuahua, Mexico, whose laws required that their marriage be contracted under either the community-property or separate-property regime. They further chose to be married under the separate
property regime, as evidenced by their marriage certificate, which Wife attached to her MSJ. Therefore, the trial court erred when it granted Wife’s MSJ.
| DIVORCE ALTERNATIVE DISPUTE RESOLUTION |
HUSBAND’S MOTION TO VACATE AND MOTION TO MODIFY OR CORRECT ARBITRATOR’S AWARDS, FILED AFTER ARBITRATOR’S AWARDS WERE ALREADY CONFIRMED, WERE UNTIMELY. TRIAL COURT PROPERLY GRANTED WIFE’S APPLICATION FOR TURNOVER RELIEF WHERE SHE PROVED THAT HUSBAND OWNED PROPERTY AND HUSBAND FAILED TO PROVE THAT PROPERTY WAS EXEMPT FROM SEIZURE.
Heilmann v. Heilmann, No. 04-18-00849-CV, 2020 WL 6293446 (Tex. App.—San Antonio 2020, no pet. h.) (op. on rehearing) (10-28-20).
Facts: Husband and Wife were divorced in 2000. After several years of litigation, they agreed to and participated in arbitration. Six arbitrator’s awards were subsequently issued. Wife filed a motion to approve the arbitrator’s awards. At the hearing on her motion to approve the arbitrator’s awards, Husband orally asked for a continuance and, alternatively, a recess to allow him time to file a motion to vacate the arbitrator’s awards. The trial court denied Husband’s request and approved the arbitrator’s awards. Later that same day, Husband filed a motion to vacate the arbitrator’s award. A month later, Husband filed a motion to modify the judgment or correct the arbitrator’s awards, which the trial court denied. Wife thereafter filed an application for turnover relief. In support of her application, Wife admitted into evidence Husband’s tax returns, W-2’s, bank account statements, stock certificates, deeds, trust documents, and discovery responses. Neither party addressed whether Husband’s property was exempt from seizure. The trial court granted Wife’s application for turnover relief. Husband appealed.
Holding: Affirmed
Opinion: Husband first argues that the trial court erred by approving the arbitrator’s awards and denying his motion to vacate and motion to modify the judgment or correct the arbitrator’s awards. However, a motion to vacate arbitrator’s awards must be considered before a trial court approves the arbitrator’s awards. Here, Husband did not file his motion to vacate the arbitrator’s awards until after the trial court had already granted Wife’s motion to approve the arbitrator’s awards. Likewise, because Husband’s motion to modify the judgment or correct the arbitrator’s awards was not filed until a month after the trial court approved the arbitrator’s awards, this motion was also untimely. Husband waived his complaints with the arbitrator’s awards by not filing these two motions before the trial court approved the arbitrator’s awards.
Husband next argues that the trial court erred in granting Wife’s application for turnover relief, because Wife did not present evidence showing that Husband owned property that is not exempt from
attachment or seizure. However, Wife admitted into evidence numerous documents, including bank statements, stock certificates, deeds, and trust documents that show Husband’s ownership of property. At that point, the burden shifted to Husband to prove that the property was exempt from attachment or seizure; however, Husband did not present any evidence to meet his burden of proof. Thus, the trial court did not err in granting Wife’s application for turnover relief.
TRIAL COURT DID NOT ERR IN ENTERING DIVORCE DECREE IN THE ABSENCE OF HUSBAND’S ATTORNEY AND WITHOUT HIS SIGNATURE WHERE PARTIES HAD PREVIOUSLY READ THEIR AGREEMENT INTO THE RECORD AND TRIAL COURT HAD RENDERED JUDGMENT ON THE AGREEMENT.
Castorena v. Castorena, No. 13-18-00492-CV, 2020 WL 6343335 (Tex. App.—Corpus Christi 2020, no pet. h.) (mem. op.) (10-29-20).
Facts: Husband and Wife both appeared at a final hearing in their divorce suit and informed the trial court that they had reached a settlement agreement. No written agreement was offered into evidence, but the agreement was read into the record. Thereafter, the trial court stated that “[d]ivorce is granted. The agreement of the parties as testified to by the parties is approved by the Court” and that “[j]udgment is hereby rendered.” A few weeks thereafter, the parties reconvened for a hearing on the entry of the divorce decree and the trial court instructed the parties’ attorneys to review the decree prepared by Wife’s attorney. When the hearing resumed, Wife’s attorney advised the trial court that Husband’s attorney had left without reviewing the divorce decree. She further advised the trial court that the divorce decree was in accordance with the parties’ agreement, as previously read into the record. The trial court accordingly signed the divorce decree. Husband’s attorney eventually returned and advised the trial court that they were not in agreement with the divorce decree. Husband appealed.
Holding: Affirmed
Opinion: Husband argues that the trial court erred in rendering judgment, because his attorney lacked adequate time to review the divorce decree, the divorce decree lacked his attorney’s signature, and it was approved outside of his presence. Here, the parties read their agreement into the record and the trial court orally rendered judgment on the agreement in accordance with Rule 11 of the TRCP. Husband provides no justification for his argument that a trial court acts improperly when, after rendition, it denies a party “sufficient time to review” the proposed divorce decree and enters the divorce decree without a party’s attorney’s presence and signature on the decree. On the contrary, precedent holds that, where a divorce settlement agreement is read into the record, approved of and granted on the record, and the parties subsequently submit a proposed divorce decree signed only by one party, the trial court does not abuse its discretion in entering the judgment. Therefore, the trial court did not err in signing the divorce decree without Husband’s attorney’s signature and outside of his presence.
| DIVORCE ENFORCEMENT OF PROPERTY DIVISION |
WHETHER SUFFICIENT EVIDENCE OF FATHER’S ALLEGED OWNERSHIP IN FIVE BUSINESS ENTITIES EXISTED WAS IMMATERIAL WHERE CHARGING ORDER QUALIFIED ITS APPLICATION ONLY TO THOSE ENTITIES IN WHICH FATHER ACTUALLY HELD AN OWNERSHIP INTEREST. ADDITIONALLY, TRIAL COURT NOT LIMITED TO RELIEF PROVIDED FOR IN BUSINESS ORGANIZATIONS CODE IN ENFORCING MOTHER’S JUDGMENTS AGAINST FATHER’S OWNERSHIP INTEREST IN BUSINESS ENTITIES.
In re M.W.M., No. 05-19-00757-CV, 2020 WL 6054337 (Tex. App.—Dallas 2020, no pet. h.) (mem. op.) (10-14-20).
Facts: After unsuccessfully trying to collect on her judgments against Father, Mother filed an “Application for Charging Order,” asserting that Father “has a position of authority in” five separate business entities. The Application further stated that Father received distributions from one or more of the business entities. In order to collect on her judgments, Mother requested the trial court to charge Father’s interests in these entities and that no money be distributed to Father or used to pay any of Father’s personal living expenses until her judgments were fully satisfied. Mother requested that the distributions be paid directly to her, instead. Father filed a response stating that he held an ownership interest in only one of the entities. At the hearing on Mother’s Application, Mother admitted into evidence Father’s tax returns; Texas Franchise Tax Public Information Reports regarding the four disputed entities, each of which was signed by Father as “Manager;” and a Texas Franchise Tax Public Information Report for the entity in which Father conceded owning an interest, which described Father as “GP.” Following the hearing, the trial court signed a “Charging Order,” which provides that “the interest of [Father] in any and all of the [five entities] is hereby subjected to a charging order in favor of and for the benefit of [Mother];” “[a]ny money due or to become due to [Father] by reason of his interest in the partnership shall be paid directly to [Mother];” and “none of the [five entities] shall (a) pay any money to [Father], (b) pay any personal living expenses of [Father], or (c) expend any money for [Father’s] personal benefit, so long as any portion of this Court’s [judgments] remains unpaid.” Father appealed.
Holding: Affirmed
Opinion: Father first argues that there is no evidence that he holds an ownership interest in the four disputed entities. However, the Charging Order’s qualifying language charges only “the interest of [Father] in any and all of the [five entities].” If Father owns no interest in a particular entity, the Charging Order charges nothing as to that entity. Because the Charging Order does not purport to charge an interest in entities in which Father has no ownership interest, the complained-of lack of evidence of ownership interest in the four disputed entities is immaterial.
Father next argues that, although the Business Organizations Code gives judgment creditors a lien on any distributions made to a debtor on account of the debtor’s ownership interest in an entity, the Charging Order far oversteps that limitation. However, the Business Organizations Code was not the trial court’s sole means to enforce Mother’s judgments; injunctive relief is an available means to enforce a judgment. Though Mother’s Application did not specifically use the word “injunction,” her requested relief included enjoining distributions to Father or payment of his living expenses by the five entities – and the trial court granted that requested relief. Therefore, the trial court did not lack authority in entering the Charging Order.
Father finally argues that the Charging Order impermissibly interferes with Father’s interest in his current wages and, therefore, violates the Texas Constitution. However, nothing in the Charging Order places any of Father’s wages in the hands of a third party or takes them from a third party. Therefore, the Charging Order does not violate the Texas Constitution’s garnishment provision.
| SAPCR PROCEDURE AND JURISDICTION |
TRIAL COURT PROPERLY DENIED MOTHER’S REQUEST FOR CONTINUANCE OF TRIAL ON GROUND OF ATTORNEY ALLEGEDLY WITHDRAWING, WHERE ATTORNEY DENIED EVER REPRESENTING HER. ADDITIONALLY, TRIAL COURT PROPERLY DENIED MOTHER’S REQUEST FOR CONTINUANCE ON GROUND OF WITNESS’S ABSENCE WHERE SHE DID NOT SHOW MATERIALITY OF WITNESS’S TESTIMONY, DUE DILIGENCE IN ATTEMPTING TO PROCURE TESTIMONY (INCLUDING THROUGH DISCOVERY).
In re G.S.C., No. 14-18-00970-CV, 2020 WL 6326240 (Tex. App.—Houston [14th Dist.] 2020, no pet. h.) (mem. op.) (10-29-20).
Facts: Mother filed a modification suit, seeking appointment as SMC based upon allegations of sexual abuse against Father. Father filed a counterpetition, alleging that Mother coached Child into making false accusations of sexual assault against Father. After final trial had previously been postponed upon Mother’s repeated requests, both parties appeared for the reset final trial. While Father was represented by counsel, Mother appeared pro se. At the outset of final trial, the trial court hailed Attorney into the courtroom after Mother alleged that Attorney represented her. Attorney advised the trial court that he had not been retained by Mother. Mother subsequently conceded that she had not yet hired Attorney, but that she intended to. After both parties called several witnesses, Mother learned that Father did not call the CPS Caseworker to testify and had released her of her duty to testify despite the CPS Caseworker already being sworn in. As a result, Mother requested a continuance so that the CPS Caseworker could be called to testify. The trial court stated that it also would like to hear the CPS Caseworker testify, but denied Mother’s request for a continuance based on her history of delaying the case. At the conclusion of final trial, the trial court ordered that the parties remain JMCs and that Father have the exclusive right to determine Child’s primary residence. Mother appealed.
Holding: Affirmed
Opinion: Mother first argues that the trial court abused its discretion in denying her request for a continuance before the start of final trial on the ground that she had no counsel and that the trial court allowed Attorney to withdraw as her counsel of record. The record does not reflect that Mother ever moved for a continuance on these grounds before trial or that the trial court allowed any attorney of record withdraw at final trial. Even if Mother requested a continuance off the record, the trial court still would not have erred in denying it. When the trial court hailed Attorney into the courtroom, Attorney advised the trial court that he had not been retained by Mother. Furthermore, he never signed any pleading in the case or appeared in court to represent Mother. Attorney only appeared for the special purpose of answering the trial court’s inquiries about whether Attorney had undertaken legal representation of Mother in this case. Thus, the record shows that, even if Mother had requested a continuance on these grounds, she had no reasonable expectation that Attorney – or any other attorney – would represent her at final trial.
Mother next argues that the trial court abused its discretion by failing to continue trial on the ground that the CPS caseworker was not available to testify. After learning that Father had released the CPS Caseworker of her duty to appear at final trial, Mother requested a continuance. Mother did not explain how the absence of the CPS Caseworker’s testimony (or evidence that could be offered through her) would impact the presentation of her case. Mother also failed to demonstrate any diligence in procuring the CPS Caseworker’s testimony or that she could not have done so through pre-trial discovery. On this record, the trial court did not abuse its discretion in denying Mother’s request for a continuance on the ground that the CPS Caseworker was not available to testify.
| SAPCR ALTERNATIVE DISPUTE RESOLUTION |
TRIAL COURT DID NOT ERR BY ADDING EXCEPTIONS TO RIGHT-OF-FIRST-REFUSAL PROVISION IN DIVORCE DECREE WHERE PARTIES AGREED TO SIMPLE RIGHT-OF-FIRST REFUSAL PROVISION IN MEDIATED SETTLEMENT AGREEMENT AND TRIAL COURT COULD HAVE CONCLUDED THAT EXCEPTIONS SIMPLY EFFECTUATED THE INTENT AND AGREEMENT OF THE PARTIES.
In re E.W.M., No. 05-19-01005-CV, 2020 WL 6304995 (Tex. App.—Dallas 2020, no pet. h.) (mem. op.) (10-28-20).
Facts: Father filed for divorce and Mother filed a counterpetition. After attending mediation, the parties entered into an MSA. The MSA provided, in relevant part, for a “[r]ight of first refusal if the parent in possession is unable to supervise the child overnight.” The MSA acknowledged that “there may need to be interpretation of the document and an extension of the language in this document, and that all the language to be used in the order(s) may not be contained in this [MSA].” The MSA further provided that, if the parties disagreed about the interpretation of the MSA’s terms, they would return to arbitration with the mediator. However, the MSA stated that “[t]he arbitrator will not be authorized to add to or delete from the substantive provisions of th[e MSA]” (emphasis added). Thereafter, Mother and Father each presented their own versions of a divorce decree to the trial court, which slightly differed from each other with regard to their right-of-first-refusal provisions. Mother’s version of the right of first refusal included exceptions for sleep-overs with friends or family members, church activities, and school activities. Father’s version of the right of first refusal did not include these exceptions and he objected to their inclusion in the divorce decree. Both Mother and Father represented to the trial court that they were waiving their right to have the issue determined by the mediator pursuant to the MSA’s arbitration clause. At the close of the hearing, the trial court sided with Mother and included her exceptions into the language of the divorce decree’s right-of-first-refusal provision. Father appealed.
Holding: Affirmed
Opinion: Father argues that the trial court is not authorized to add a substantive provision to the divorce decree not originally contained in the MSA. The MSA stated that “[t]he arbitrator will not be authorized to add to or delete from the substantive provisions of th[e MSA].” However, the MSA acknowledged that “there may need to be interpretation of the document and an extension of the language in this document, and that all the language to be used in the order(s) may not be contained in this [MSA].” Notably, the MSA provided that the divorce decree would have a right of first refusal, but it did not specify the terms of that provision and a dispute arose between the parties regarding the terms of the right-of-first-refusal provision in the divorce decree. Both parties recognized that the MSA’s right of-first-refusal provision was insufficient for the divorce decree, and both of their versions of the right-of
first-refusal provision to be included in the divorce decree added language from that of the MSA. The trial court could have reasonably concluded that the inclusion of Mother’s proposed exceptions did not add any “substantive provisions” to the MSA, but instead constituted language to effectuate the intent and agreement of the parties concerning the right of first refusal. Sitting in the place of the mediator/arbitrator, the trial court had authority to include language to effectuate the intent and agreement of the parties. Therefore, the trial court had the authority to include Mother’s exceptions in the right-of-first-refusal provision.
| SAPCR CONSERVATORSHIP |
TRIAL COURT ERRED IN APPOINTING THIRD PARTY AS POSSESSORY CONSERVATOR OF CHILDREN WHERE NO EVIDENCE, OTHER THAN THIRD PARTY’S UNSUPPORTED TESTIMONY, INDICATED THAT FATHER WAS AN UNFIT PARENT.
In re B.F., No. 02-20-00283-CV, 2020 WL 6074108 (Tex. App.—Fort Worth 2020, orig. proceeding) (mem. op.) (10-15-20).
Facts: Father filed for divorce from Mother. The trial court entered Temporary Orders, naming Mother and Father as JMCs of their Child. Thereafter, a second Child was born and the trial court entered Temporary Orders naming Mother and Father as JMCs of that Child. Third Party, who is unrelated to Children, intervened and filed a request for a TRO, asserting that Mother had mental-health problems and had physically abused Child in the past. The trial court issued a TRO and set a Temporary Orders hearing. At the hearing, Third Party made allegations that Father used methamphetamine and had tested positive in the past. In support, Third Party admitted into evidence drug test results for one of the Children, showing that Child tested positive for marijuana. Third Party also alleged that there was a current CPS case against Father’s girlfriend stemming from an incident where the girlfriend’s child allegedly tested positive for methamphetamine after the girlfriend and Father used it in the child’s presence. Third Party admitted the docket sheet from the CPS case into evidence, but it did not mention Father. At the end of the Temporary Orders hearing, the trial court named Mother and Father as JMCs of Child and Third Party was named as a PC of Children, being awarded possession of Children on the 2nd and 4th weekends of each month. Father filed a petition for writ of mandamus.
Holding: Petition for Writ of Mandamus Granted
Opinion: Father argues that the trial court erred in appointing Third Party as a PC of Children, because he alleged that no evidence was presented to the trial court that he is anything but a fit parent. Third Party alleged that Father had abused methamphetamine in the past, but provided no evidence to support her allegation. Although Third Party introduced a drug test result showing that one of Children tested positive for marijuana, there is nothing to tie that drug test result to any misconduct on Father’s part. Third Party also alleged that there was a current CPS case against Father’s girlfriend stemming from an incident where the girlfriend’s child allegedly tested positive for methamphetamine after the girlfriend and Father used it in the child’s presence, but the docket sheet that Third Party relied upon as support for this allegation did not even mention Father. Therefore, there is not any evidence in the record (other than Third Party’s unsupported allegations) that would indicate that Father is an unfit parent. To the contrary, Father has consistently been named a JMC in the case. Relying on the general precepts cited in In re C.J.C., 603 S.W.3d 804 (Tex. 2020) in situations where a third party seeks conservatorship, the court held that because there is no evidence that Father is unfit, which is part of the best interest element, it is Father – and not the trial court – who is to determine whether to allow Third Party conservatorship or possession of Children. Therefore, the trial court abused its discretion.
| SAPCR ADOPTION |
TRIAL COURT PROPERLY FOUND THAT STEP-SON WAS NOT DECEDENT’S EQUITABLY ADOPTED SON, DESPITE ABUNDANCE OF EVIDENCE SHOWING THAT THEY LIVED AS FATHER AND SON, BECAUSE THERE WAS NO EVIDENCE OF A PRESENT AGREEMENT FOR DECEDENT TO ADOPT STEP-SON.
In re Estate of Hines, No. 06-20-00007-CV, 2020 WL 5948803 (Tex. App.—Texarkana 2020, no pet. h.) (mem. op.) (10-08-20).
Facts: Decedent died and one of his heirs filed probate proceedings. A year later, Claimant (Decedent’s step-son) filed a motion for new trial, alleging that he was Decedent’s equitably adopted son and, therefore, an heir to Decedent’s estate. The trial court granted Claimant’s motion without hearing and set a second trial. At the second trial, Claimant presented an abundance of evidence showing that he considered Decedent to be his father; that, at least on some occasions, Decedent referred to Claimant as his “son;” and that Decedent spent a significant amount of time with Claimant. Likewise, there was evidence to show that Decedent, Claimant, and Claimant’s mother (Decedent’s wife) presented themselves to the public as a family. According to Claimant, Decedent had discussed with him the possibility of adoption when he was younger, but no agreement was made at that time, and Decedent and Claimant chose to put off the issue of adoption until a later date. Claimant’s mother testified that she had discussed the issue of adoption with Decedent, but he told her that he did not “need a piece of paper to tell [him] who [his] kid [was] or tell [him] who [his] son [was].” At the end of the second trial, the trial court held that Claimant was not Decedent’s equitably adopted son. Claimant appealed.
Holding: Affirmed
Opinion: Claimant presented an abundance of evidence showing that he considered Decedent to be his father, that, at least on some occasions, Decedent referred to Claimant as his “son,” and that Decedent spent a significant amount of time with Claimant. Likewise, there was evidence to show that Decedent, Claimant, and Claimant’s mother presented themselves to the public as a family. Yet, to establish that he was Decedent’s equitably adopted son, Claimant would have had to prove that Decedent agreed with Claimant to be adopted, or with Claimant’s mother that he would adopt Claimant. However, there was no evidence presented to show that Decedent had entered into a present agreement with Claimant’s mother to adopt Claimant, just some evidence indicating that Decedent had discussed adopting Claimant in the future. There was even evidence presented that Decedent did not feel the necessity of adopting Claimant, because he already felt that Claimant was his son. Because there is some evidence supporting the trial court’s decision, the trial court did not abuse that discretion in determining that Decedent did not equitably adopt Claimant.
| MISCELLANEOUS |
TRIAL COURT ERRED IN DECLINING TO GRANT WIFE’S MOTION TO DISMISS UNDER THE TEXAS CITIZEN’S PARTICIPATION ACT (“TCPA”) WHERE HUSBAND LACKED STANDING TO BRING A CLAIM AGAINST WIFE FOR MAKING AN ALLEGEDLY FALSE REPORT OF CHILD ABUSE. FURTHERMORE, TRIAL COURT HAD AUTHORITY UNDER THE TCPA TO AWARD FEES AND SANCTIONS AGAINST HUSBAND EVEN THOUGH TRIAL COURT LACKED JURISDICTION OVER HUSBAND’S CLAIM.
De La Torre v. De La Torre, ___ S.W.3d ___, No. 03-19-00597-CV, 2020 WL 2020 WL 6018572 (Tex. App.—Austin 2020, no pet. h.) (10-9-20).
Facts: Wife filed for divorce. In Husband’s counterpetition, he alleged that Wife had “knowingly made a false and/or frivolous report [of child abuse] to Child Protective Services.” Husband asked the Court to order the OAG to “access [sic] a civil penalty of $1,000.00” against Wife pursuant to TFC § 261.107. Wife filed a TCPA motion to dismiss Husband’s § 261.107 claim, requesting attorney’s fees and sanctions. At the hearing on Wife’s motion to dismiss, the trial court declined to rule on the motion and it was subsequently overruled by operation of law. Wife appealed.
Holding: Reversed and Remanded.
Majority Opinion: (JJ. Smith, Triana) Wife argues that the trial court erred by declining to grant her motion to dismiss. The communication in question (the allegedly false report of child abuse) involved the welfare of a child and allegations of child abuse, which are matters of health, safety, and community well-being; thus, Husband’s claim falls under the TCPA. However, the analysis ends here. TFC § 261.107 does not create a private cause of action, but only an action for the county prosecuting attorney. As such, Husband lacked standing to bring his § 261.107 claim. Because Husband cannot establish standing, he cannot satisfy his burden under the TCPA to make out a prima facie case for each element of his claim. As such, the trial court should have granted Wife’s motion to dismiss Husband’s claim.
Wife should also have been awarded attorney’s fees and sanctions against Husband, because the TCPA mandates that a trial court award fees and sanctions to a party who obtains dismissal under the TCPA. Even though the trial court did not have jurisdiction over Husband’s claim (because he lacked standing), the statutory purpose would not be fulfilled if the trial court therefore did not have authority under the TCPA to award attorney’s fees and sanctions against Husband. As such, we hold that the TCPA authorizes an award of attorney’s fees and sanctions where a litigant successfully challenges a legal action on jurisdictional grounds.
Dissenting Opinion: (Goodwin, J.) If the trial court did not have jurisdiction over Husband’s § 261.107 claim, the claim should have been dismissed for want of prosecution, not under the TCPA. To dismiss Husband’s claim under the TCPA effectively asserts jurisdiction over that claim, even though standing is lacking. Therefore, Wife should not be entitled to dismissal of Husband’s claim under the TCPA or attorney’s fees and sanctions.
EVIDENCE SUFFICIENT TO SUPPORT TRIAL COURT’S FINDING THAT WIFE DID NOT EXECUTE PARTITION OR EXCHANGE AGREEMENT. HOWEVER, TRIAL COURT ERRED BY AWARDING TO WIFE UNCONDITIONAL APPELLATE ATTORNEY’S FEES.
Danner v. Danner, No. 09-18-00385-CV, 2020 WL 6325725 (Tex. App.—Beaumont 2020, no pet. h.) (mem. op.) (10-29-20).
Facts: Wife filed for divorce. Husband filed a counterpetition, asserting that the parties had executed an agreement partitioning their community estate (the “Agreement”). Wife disputed the validity of the Agreement, alleging that Husband had forged her signature on it. At a hearing on the validity and enforceability of the Agreement, Husband testified that he observed Wife sign the Agreement. According to Husband, after Wife signed the Agreement, she took it to a notary and brought back a notarized copy the next day. However, Wife disputed Husband’s testimony, instead claiming that she never even saw the Agreement before the divorce suit. Wife conceded that she had signed the notary page to the Agreement, but alleged that her signature on the actual signature page of the Agreement was forged. Wife testified that she only signed the notary page, because Husband handed her the page one morning and asked her to get it notarized, which she did. Wife further testified that she was unaware that the notary page was part of a larger document partitioning their community estate, despite the notary page being marked as “Page 48” in the corner. Wife’s notary testified at the hearing, confirming that Wife had only brought her the notary page to notarize and that neither of them knew that the notary page was part of a larger document. Husband testified that he had asked Wife to sign the Agreement after he discovered that she was having an affair. Husband wanted to “protect[] certain assets” in case of a divorce. Both parties presented testimony from forensic document examiners, with Husband’s forensic examiner testifying that “there is a strong probability or strong indication” that Wife’s signature on the signature page of the Agreement was valid and with Wife’s forensic examiner testifying that Wife’s signature on the signature page of the Agreement was a forgery. At the end of the hearing, the trial court found that Wife did not sign the Agreement and it was therefore unenforceable. The remaining issues were tried to the bench and, after final trial, the trial court, in relevant part, ordered that Husband pay to Wife $40K “for attorney’s fees on appeal[,]” $5K more should Husband file a petition for review with the Texas Supreme Court, and $15K more should the petition for review be granted. Husband appealed.
Holding: Affirmed in Part; Modified in Part.
Opinion: Husband first argues that the evidence is insufficient to support the trial court’s finding that Wife did not execute the Agreement and that it is unenforceable. Several witnesses testified in support of Wife’s argument that she never signed the Agreement. Wife testified that Husband only handed her the notary page to the Agreement and asked her to get it notarized, which she did. She further testified that she did not know it was part of a larger document that partitioned the community estate. Wife also testified that, while she signed the notary page (albeit unknowingly), she did not sign the signature page to the Agreement. Her notary also testified that Wife only brought the notary page to be notarized and that neither of them knew that the notary page was part of a larger document. Wife’s forensic document examiner testified that Wife’s signature on the signature page to the Agreement was a forgery. Although Husband presented evidence in support of his argument that Wife did execute the Agreement and that her signature on the signature page was not a forgery, including the expert testimony of his own forensic document examiner, the trial court’s finding that Wife did not execute the Agreement and that it is unenforceable is consistent with the greater weight and preponderance of the evidence.
Husband next argues that the trial court erred by failing to make his obligation to pay appellate attorney’s fees contingent on losing his appeals. Generally, a trial court cannot require a party to pay appellate attorney’s fees unless they make the payment of them conditional on the outcome of the party that appealed losing the appeal. However, Husband did not prevail on his appeal to this Court. As such, to the extent that the trial court failed to condition the appellate attorney’s fees awards on Husband losing his appeal in this Court, the error was harmless. However, to the extent that the trial court failed to condition the appellate attorney’s fees award on Husband losing his appeal, if any, to the Texas Supreme Court, the trial court erred and the award should be modified accordingly.