INTERESTING CASES: July 1 2015

INTERESTING CASES: July 1 2015

Sallee S. Smyth

1. In re S.T., 2015 Tex. App. LEXIS 5991 (Tex. App. – Fort Worth June 12, 2015, orig. proceeding) (Cause No. 02-15-00014-CV)

H filed for divorce in 2014 and denied paternity of the child born in 2002, during marriage, naming the father as unknown. H claimed that he did not challenge paternity prior to the expiration of the 4 year SOL because W had lied to him about the child’s conception and he was under the mistaken belief that the child was his. W filed a counter suit and asserted that H’s denial of paternity was barred by the applicable SOL. H subsequently amended his pleadings and named ST as the father, joined him as a party, sought genetic testing of ST and asserted claims against ST for damages equaling the amount of c/s ST should have paid over the life of the child if he was in fact the father. H & W entered into a Rule 11 agreement specifying that (1) the SAPCR would be severed from the divorce; (2) H would not be adjudicated father and would have no rights and no obligations including c/s; and (3) if W recovered c/s from ST, she would reimburse H 1/3 of the amount recovered if, as and when received. ST objected to the Rule 11 asserting that the SAPCR should not be severed and urging that the agreement not to adjudicate H as the father violated public policy. The trial court suspended operation of the Rule 11 and ST filed a counterclaim for DJ that H was the father and that any claim for parentage against him was barred by SOL. ST sought SJ relief. In response to the SJ, H argued that the mistaken paternity statute [TFC 160.607(b)(2)] passed in 2011 was applicable in this case even though it did not become effective until after the child’s birth and 4th birthday. The court granted SJ that H was the presumed father and that H had no right to recover damages for retroactive c/s or fraud/conspiracy in deceiving H about the child’s conception. The court denied SJ on the SOL issue. The court further issued an order on stipulated facts agreed to by H and W only which established that H was not the father, would have not rights and no obligations to the child and maintained a right to challenge his paternity. ST sought mandamus relief asserting that he had a vested right to rely on the prior 4 year SOL in effect at the time the child was born and in effect at the time the child turned 4, asserting that to retroactively apply the 2011 mistaken paternity exception in this case would deprive him of that vested right, making the action constitutionally impermissible. In response, H did not argue that the 2011 amended statute applied, but instead argued that the amended statute was merely a codification of prior law tolling SOL under the discovery rule in fraud and breach of fiduciary duty cases where H and W are under a duty to disclose all facts affecting the marriage, which in this case would have required W to tell him the truth about the child’s paternity. In rejecting H’s arguments the COA noted that the Legislature could have incorporated the “discovery rule” into prior family code SOL’s regarding paternity but it did not. The COA found that ST’s right to rely on the former SOL statutes (which contained on mistaken paternity exception) had fully vested and that public policy was not frustrated in this case because the parent child relationship between H and the child had existed for a long period of time. The COA determined that the trial court abused its discretion in denying SJ on the SOL issue. Regarding the agreed stipulation the COA found that although it did not adjudicate ST, H and W were not permitted to deny adjudication of H by stipulation because TFC 160.204 only permits the presumption of paternity to be overcome by an adjudication or by a valid denial accompanied by a valid acknowledgment. The effect of the stipulation in this case, if enforced, would have left the child without a means of support either from a presumed or adjudicated father, and thus would have violated the statutory scheme of the TFC to insure that children remain safe and stable and that family relationships are preserved absent exceptional circumstances. Mandamus granted and SJ rendered on all of ST’s claims, including his SOL claim. Further, the COA ordered the trial court to delete from its order the stipulated facts saying H was not the father and that H maintained a right to challenge his paternity.

2. State v. Naylor,2015 Tex. LEXIS 581 (Tex. June 19, 2015) (Cause No. 11-0114)

Naylor and Daly, both females, married in Massachusetts in 2004. They ultimately became Texas residents, started a family, owned a business and acquired other property together. Naylor filed for divorce in Texas. Daly originally objected to the trial court’s jurisdiction asserting that TX could not recognize the marriage as valid and thus could not divorce them. Eventually the parties agreed on all SAPCR matters and further decided they would ask the trial court to enter a decree of divorce so that their marriage would be resolved for all purposes in the event the existing laws were to ever change. Although fully aware of the issues within this pending suit the AG did not intervene until the day after the trial court rendered judgment on the parties’ agreement. The trial court determined that the intervention was untimely and refused to set aside its rendition so that the intervention challenging the divorce proceedings could proceed. The AG filed an appeal only to the COA, which dismissed finding that the AG had no standing since their intervention was untimely and thus they were not a party in the underlying case with rights to appeal from the order. The AG appealed to the SCt and further sought mandamus relief regarding the granting of the divorce. Before the SCt the AG claimed their intervention was timely, claimed standing through the virtual representation doctrine and asserted various equitable grounds. First, the SCt found the record conclusively established that the intervention was untimely because it was filed after rendition which the trial court never set aside. As to virtual representation the SCt found that the state was not bound or affected by the parties’ agreements and was not obligated financially by them. Further the state was not aligned or in privity with either party as they both asserted the legitimacy of their marriage while the state opposed it. The SCt further determines that there is no basis for allowing equitable grounds to support post-rendition intervention or convey party status and rights on the state where they failed to timely intervene. To hold otherwise would allow the appellate courts to expand their own jurisdiction which they are not allowed to do. As to the mandamus the SCt held that the petition failed on the merits because it had not first been presented to the COA as required absent exceptional circumstances when the COA has concurrent jurisdiction with the SCt to grant writs of mandamus. The AG argued that filing in the COA would have been futile however the SCt found the reasoning insufficient to warrant a direct request for mandamus in the SCt. The SCt ultimately agreed with the COA that the AG lacked standing and dismissed the appeal and denied mandamus relief. Justice Boyd wrote a concurring opinion to emphasize his position that the state is not bound by the parties’ “divorce.” (2015 Tex. LEXIS 579)Justice Willet, joined by Guzman and Devine dissent (2015 Tex. LEXIS 582), with Devine writing his own dissenting opinion. (2015 Tex. LEXIS 580) Justice Willet believes the state should be heard on its argument claiming an absolute right to defend and/or enforce Texas law while acknowledging the upcoming US Supreme Court decision on same-sex marriage as affecting all states. Justice Devine’s dissent fully explores and analyzes the constitutional issues surrounding treatment of same sex marriage in Texas, concluding that a TX trial court is prohibited from granting a divorce to a same sex couple married elsewhere and that TX law declaring same sex marriages void does not violate the U.S. constitution. COMMENT: On June 26, 2015 the US Supreme Court issued a 5-4 decision in Obergefell v. Hodges, upholding a constitutional right for same sex couples to marry in all 50 states. (See below) Even though the TX Supreme Court majority determined that it procedurally could not reach these compelling constitutional issues as presented under TX law, the majority opinion provided insight into how they would have decided it by stating “We have no quarrel with Justice Devine’s analysis.” Even though this case has been pending at the TX SCt since 2011, the timing of the opinions are politically interesting. All justices authoring opinions expressly refer to the upcoming and expected Obergefelldecision, but all were apparently unwilling to wait it out.

3. Baker v. Baker, 2015 Tex. App. LEXIS 6455 (Tex. App. – Houston [14th Dist.] June 25, 2015) (Cause No. 14-14-00083-CV)

W filed for divorce from H after a troubled marriage which produced two children. W asserted that H was an alcoholic and has a history of committing family violence which included pushing her, throwing furniture, spitting on her and calling her derogatory names in front of the children. The final event precipitating the divorce occurred when H punched W in the face, breaking two bones in her skull and requiring surgery to save her eye. W sought appointment as SMC and asserted a number of tort claims against H including assault and battery, terroristic threats and IIED, seeking both actual and exemplary damages. The trial court struck W’s tort claims shortly before trial as a death penalty sanction based on H’s argument that W failed to provide her calculation for economic damages under TRCP 194 requests for disclosure. W’s motion to reconsider was denied. During trial W testified to all of her injuries and sought leave to amend to include again her claims for assault and battery. The court considered all the evidence and took the case under advisement, ruling shortly thereafter and naming the parties JMC and awarding no damages to W on any tort claims. The trial court found that family violence had occurred in the past but was not likely to occur in the future. The final decree contained a Mother Hubbard clause denying all relief not specifically granted. W appealed and challenged the JMC appointment in the face of evidence establishing a history of family violence. W also challenged the death penalty sanctions on her tort claims and the trial courts decision to grant a no fault divorce instead of basing it on grounds of cruelty. The COA initially found that the trial court abused its discretion in appointing the parties JMC because its finding of past family violence removed the presumption and precluded H’s appointment as a JMC. H tried to argue that a finding of family violence was different from a finding of past physical abuse. The COA found the evidence equally supporting both. H also tried to argue that a single incident (the face punch) did not establish a “history” but the COA found that it could. H also argued that TFC 153.004 should not apply because “he did not intend to harm” W when he punched her in the face, he only meant to prevent her from leaving his side. (I cannot even bring myself to comment on the propriety of this argument.) The COA found that proof of intent is not required under the statute. The COA concluded that reversal and remand was necessary because although the evidence did not allow the court to appoint H and W as JMC, the presumption did not render H ineligible for appointment as SMC and thus the issue of which parent to appoint SMC must still be decided. The COA found that the order striking W’s tort claims as a discovery sanction was excessive, determining that since W produced some medical records and further sought some non-economic damages, the court could have limited W’s testimony/evidence to those matters without striking her tort claims altogether. The COA held the sanctions were an abuse of discretion requiring reversal so that the tort claims could actually be tried. H argued that because W received a disproportionate share of the estate, if the tort claims were remanded, he sought to have the division of property remanded as well in order to prevent a possible double recovery. The COA agreed, citing Twyman (855 SW2 619) which discourages double recovery when torts are tried along with a divorce suit, and therefore reversed and remanded the property division as well.

4. Obergefell v. Hodges, 576 U.S. ____ (2015) [Consolidated U.S. Supreme Court Case Nos. 14-562 (Tenn); 14-566 (Ohio); 14-571 (Mich); 14-574 (Ken.)]

Fourteen same sex couples and two men whose same sex partners were deceased filed suit in federal courts alleging their respective states unlawfully denied them the right to marry or unlawfully refused to recognize their marriages as lawfully performed in other states. The federal District Court in each state ruled in their favor. The 6th Circuit COA consolidated the cases from Tennessee, Ohio, Michigan and Kentucky, and reversed. The US Supreme Court granted cert and issued its landmark decision on June 26, 2015 holding that no state may constitutionally forbid same sex couples from marrying and no state may constitutionally refuse to accept the legality of same-sex marriages performed elsewhere. The decision finds that the 14th Amendment requires all states to license a marriage between two people of the same sex and to recognize a marriage between a same sex couple when it was lawfully licensed and performed elsewhere. The majority opinion (J. Kennedy) determines that the fundamental right to marriage applies equally to same sex couples for four basic reasons. (1) The right to personal choice regarding marriage is inherent in the concept of individual autonomy. (2) The right to marry supports a two-person union unlike any other in its importance to the committed individuals. (3) Protecting the right to marry safeguards children and families and draws meaning from related rights of childrearing, procreation and education. (4) Prior SCt cases and national traditions make it clear that marriage is a keystone to the nation’s social order. The majority determined that the challenged laws burden the liberty of same sex couples and they abridge central precepts of equality, finding the marriage laws at issue are unequal because same sex couples are denied the benefits afforded opposite-sex couples and are barred from exercising a fundamental right. Addressing concerns that religious officials (preachers, pastors, priests, rabbis) who firmly oppose same sex unions on religious grounds may be required to perform marriages against their beliefs, the majority recognizes that the First Amendment guarantees freedom of religion and those who firmly oppose same sex marriage may continue to advocate against it. Regarding the interests of children born to or adopted in same sex relationships, J. Kennedy states "As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. ... Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples." Dissenting, C.J. Roberts writes "Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. ... Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept." Also in a dramatic and passionate dissent, J. Scalia states “The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. ...It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court." COMMENT: Clearly the Supreme Court’s ruling will affect many aspects of the Texas Family Code which will need to be addressed by the Texas Legislature who just concluded their regular session. Will a special session be called? Questions are already being asked about where parties will pursue their remedy if county clerks across Texas fail to immediately issue marriage licenses. Does this decision presumably moot the case of De Leon v. Perry pending in the 5th Circuit? Suffice it to say the practice of family law in Texas just got busier and became a lot more interesting.