INTERESTING CASES: November 5, 2014

Sallee S. Smyth

1. In re Lovell-Osburn, 2014 Tex. App. LEXIS 10848 (Tex. App. – Houston [14th Dist.] September 30, 2014, orig. proceeding) (Cause No. 14-14-0486-CV)

H and W divorced in 2009. W was named the JMC with exclusive right to establish the domicile of the children within Harris and contiguous counties. Subsequently the parties became involved in post-divorce enforcement and modification proceedings. During this time W contemplated a move to Brazos, Burleson or Grimes counties, none of which were contiguous to Harris. In 2012 the parties signed an MSA allowing W to move to any of the three counties. Further the MSA provided that the 246th Family District Court of Harris County, Texas would retain venue over all subsequent SAPC R proceedings. The trial court thereafter signed an agreed final order which included both the expanded domicile provisions and the contractual venue terms. W moved to Burleson County with the remaining minor child. In March 2014 W filed a suit to modify child support and simultaneously filed a motion to transfer venue to Burleson County where she and the child had resided for more than 6 months. H opposed the transfer and the court conducted an evidentiary hearing, denying W’s motion to transfer. W filed for mandamus relief. MAJORITY:In analyzing the issue presented, the COA majority Opinion addressed the interplay between TFC 153.0071(e) (requiring judgment on an MSA absent limited exceptions) and TFC 155.201(b) (mandating transfer of venue in a SAPCR when timely requested and the child has resided in the transferee county in excess of 6 months). Acknowledging the TX Supreme Court’s prior decision holding that contracts fixing venue are void as against public policy (654 SW2 440), the majority determines that no other rule of law or statute allows a trial court to disregard the mandatory venue provisions of TFC 155.201(b) in the face of a private contract providing otherwise. H’s arguments supporting the validity of the MSA venue provision centered on his interpretation of In re Lee (411 SW3 445) as requiring the trial court to ignore the mandatory requirements of TFC 155.201(b) simply because the parties agreed to it. The majority holds that Lee does not address the question of whether a trial court must enforce an MSA in all circumstances, and further finds that Lee does not require a trial court to enter judgment on an MSA that contains a void venue provision. The COA majority referenced its specific concerns that if it were to adopt H’s conclusion that an MSA trumps other statutes and public policy mandates in all circumstances, this would open the doors for parties to include other provisions against public policy within MSA’s to circumvent other clear legislative intent. Mandamus granted. DISSENT: Dissenting, Justice Jamison believes that the trial court’s obligation to enter judgment on a compliant MSA “notwithstanding … another rule of law” as provided in TFC 153.0071(e) allows the trial court to enforce a private venue contract contained therein in spite of the mandatory provisions of TFC 155.201(b). Justice Jamison notes that the decision in Lee resolves one public policy (amicable resolution of disputes should be promoted forcefully) over another (best interest of the child should always control) and she cannot reconcile the holding in Lee with a conclusion that the venue provisions of TFC 155.201(b) controls over the venue provisions of the parties’ MSA.

2.In re Busaleh, 2014 Tex. App. LEXIS 11047(Tex. App. – Texarkana October 7, 2014, orig. proceeding) (mem. opinion) (Cause No. 06-14-00073-CV)

H and W lived in Saudi Arabia. In June 2013, W left with the children and moved to Bonham, (Fannin County) TX. H apparently followed in July. In August 2013 W fled to Kentucky with the children. In November 2013, W sought and obtained an emergency protective order in KY against H which was valid for 6 months, awarded W temporary custody and prohibited contact by H with the W or the children. In April 2014 H filed for divorce in Fannin County and requested sole custody. A month later, the KY court issued a final protective order and W filed for divorce in KY. W filed a special appearance and plea to the jurisdiction in the TX divorce proceeding, arguing that KY was the children’s home state. The TX trial court denied W’s plea and issued a temporary order appointing the parties’ JMC and ordering W to return to TX with the children. W filed for mandamus relief and obtained a stay of the TX trial court orders. The COA determined that the emergency protective order was in effect a custody determination in another state under the UCCJEA because the issue of conservatorship was addressed in a proceeding for protection from domestic violence as provided in TFC 152.102(4). Further, because the children had resided in KY for at least 6 months at the time the TX divorce proceeding was filed, KY was their home state. Under the UCCJEA the only way TX could acquire jurisdiction over the SAPCR under these circumstances was if the KY court declined jurisdiction in favor of TX as a more convenient forum. Because a custody proceeding had already been commenced in KY, the TX court was required to stay its proceeding and confer with the KY court, which it did not do. Mandamus granted with instructions to confer, and to dismiss the TX suit unless the KY court determines TX is a more convenient forum.

3.In re Martinez, 2014 Tex. App. LEXIS 11396 (Tex. App. – San Antonio October 15, 2014, orig. proceeding) (mem. opinion) (Cause No. 04-14-00536-CV)

H and W divorced in New York in 1995. Under NY law, their divorce decree provided that H would pay child support for the parties’ child until she reached the age of 21 or graduated from college, but in no event past the age of 22. In 1998 the child was in an auto accident and rendered a quadriplegic. W asked H if he would agree to her relocation to TX for the child’s health and a settlement on that issue was reached. W moved with the child and H visited her in TX on several occasions. Modification of child support was not discussed. Shortly before the child’s 21st birthday W filed suit in NY to modify child support based on the child’s disability. The parties stipulated that NY law does not provide support for adult disabled children and the NY court found that since the child would not be going to college, H’s support ended on her 21st birthday and dismissed W’s modification suit with prejudice. After the child turned 21, W filed an original SAPCR in TX seeking support for the disabled child. H filed a special appearance and a plea to the jurisdiction, arguing that jurisdiction remained in NY under UIFSA. The TX trial court denied H’s pleas and issued a temporary order for support. H sought mandamus relief and received a temporary stay. The COA found that under UIFSA, NY retained continuing, exclusive jurisdiction to modify child support because H remained a resident there and further the parties’ had not consented to jurisdiction in TX. Further, W did not establish that any of the exceptions in TFC 1598.611 applied. W attempted to circumvent the provisions of UIFSA altogether, arguing that her suit was an “original” SAPCR (not a modification) because the NY order had already expired on its own terms when the child reached age 21 and thus, there was nothing to modify. W further argued that her suit was an original suit not a modification because she had not registered the NY order as required when modification is sought. The COA rejected both arguments noting that under UIFSA, there are only two ways an issuing state court can lose its continuing jurisdiction, one being if all parties and the child leave the issuing state and two, if the parties consent to the new jurisdiction. Because neither situation applied here, NY retained continuing jurisdiction. As such, under TFC 154.305 any suit for support of an adult disabled child in a case where a court had continuing jurisdiction had to be filed as a modification suit, not an original suit. Further, the COA noted that under TFC 159.611(c), a TX court cannot modify any aspect of an order from another state, including duration of the support obligation, which may not be modified by the issuing state. Because the law of the issuing state controls the duration of child support and NY could not modify the support for a disabled child past her 21st birthday, the TX court could likewise not grant such a modification. The COA also rejected the “registration” argument because the question under UIFSA is whether or not such an order exists, not whether it has been registered and since a NY order did exist, W’s TX suit must be treated as a modification, not an original SAPCR. The COA noted that it was sympathetic to W’s attempt to obtain support for her adult disabled child but held that it was bound by the provisions of UIFSA. Mandamus granted with instructions to grant H’s plea to the jurisdiction and dismiss W’s suit. Special appearance issue not addressed as subject matter jurisdiction issue was dispositive.

4.In the Interest of E.M. and F.M., 2014 Tex. App. LEXIS 11657 (Tex. App. – Fort Worth October 23, 2014)(mem. opinion) (Cause No. 02-13-00337-CV)

In 2002, over a year before meeting F, M gave birth to a child FM. In 2004, after the parties began their relationship, F and M had a child together, EM. In 2006, F filed a petition to adjudicate his parentage to EM only however the health insurance availability form also included information about FM. There was never any dispute that F was the biological father of EM but not the biological father of FM. The parties entered into an MSA which provided for the adjudication of F as the father of both EM and FM and provided a visitation schedule. The trial court adjudicated F as the father of both, finding that F admitted to parentage of both, and a final order was signed. M did not file a MNT and did not prosecute an appeal. Two years later, M moved to modify the final order as to the place of exchange for visitation. F filed a counter suit seeking SMC of both children. In response, M filed a motion to declare the prior final order void and she further filed a separate bill of review action. The AJ denied the bill of review as did the presiding judge upon de novo review. M appealed asserting that the parentage order was void because (1) it was not supported by pleadings, noting that F’s petition to adjudicate requested only that he be adjudicated the father of EM; (2) the alleged biological father had never been served with that SAPCR as required by statute and (3) the court failed to appoint an ad litem for the child, FM. The COA noted that while a judgment unsupported by pleadings is void, there are no pleadings required to support an agreed judgment. Citing In re Lee, the COA states “A [MSA] that conforms with the requisites of [TFC 153.0071] operates as an agreed judgment because the trial court has no discretion to refuse to render judgment on the agreement absent a finding that the agreement is not in the child’s best interest because of domestic violence.” The COA further determined that M had no standing to raise a lack of due process on behalf of the alleged biological father who had not been served and further that the failure to appoint an ad litem for the child was not error because the record showed that the true biological father had no relationship with the child and that both F and M adequately represented the child’s interest in reaching their agreement. The COA further found no error in the trial court’s failure to issue FFCL at M’s request. Judgment denying bill of review affirmed.

5.In the Interest of E.H., A.H. and E.H., 2014 Tex. App. LEXIS 11679 (Tex. App. – Houston [14th Dist.] October 23, 2014)(Cause No. 14-13-00622-CV)

H and W married in Israel and had three children there. For two years the parties resided in Arizona but returned to Israel. In 1992, H left W and the children in Israel and moved briefly to South Caroline and then settled in Galveston, TX. In 1993 W obtained a judgment for child support against H in Israel, alleging that he had been properly served with notice. Several years later, H was granted a rabbinical divorce from W in TX. One of the parties moved to TX to reside with H. W received no child support payments from H. Under a program established through the National Insurance Institute of Israel, W received partial support and was then granted permission by the Israeli government to pursue enforcement of the balance against H. In 2011 the OAG filed a UIFSA action in Galveston TX seeking to register the Israeli child support order and confirm arrearages. H contested the registration asserting that he was never served with the Israeli child support action and thus the Israeli court never had personal jurisdiction over him and he was denied due process in the Israeli court proceeding, a defense which UIFSA specifically authorizes. After evidentiary hearings both the AJ and the presiding judge upon de novo review denied registration of the Israeli order under UIFSA. The OAG appealed arguing the trial court erred (1) by failing to give the Israeli judgment full faith and credit under UIFSA; (2) by failing to recognize the validity of the Israeli judgment under the principles of comity; and (3) refusing to give the judgment presumptive validity based on the findings of the Israeli court that H had been properly served. The COA first holds that nothing in UIFSA expressly requires a court to give full faith and credit to a foreign judgment because UIFSA specifically allows a party to contest registration based on claims that the issuing court lacked personal jurisdiction over them. TFC 159.606; 159.607. Although specifically avoiding any holding that UIFSA requires the extension of full faith and credit, the COA found that the evidence offered by H to challenge service of notice in the Israeli proceeding was properly considered by the TX court (and further decided, under a separate issue, that H’s evidence was sufficient to support the TX court’s finding that he had not been properly served with the Israeli suit for child support.) As far as the comity argument was concerned, the COA found that application of comity principles requires some notion of due process and that based on the evidence presented which called into question whether or not H had been properly served, the OAG’s argument that that the record conclusively supported proper service fell short and the trial courts unwillingness to register the Israeli order under the principle of comity was not error. The COA’s opinion contains a detailed review of the evidence regarding alleged service and the H’s evidence denying same, ultimately determining that H proved his defense to registration under the UIFSA. The opinion mentions that a question arose during oral argument about the proper burden of proof on the defense, with the OAG claiming H was required to establish it by clear and convincing evidence while H argued it was merely preponderance. The COA avoided a decision on the issue by stating that the H’s proof, under either standard, was sufficient. Judgment denying registration affirmed.

6.In the Interest of Sisk, 2014 Tex. App. LEXIS 11881 (Tex. App. – Houston [14th Dist.] October 30, 2014)(mem. opinion) (Cause No. 14-13-00785-CV)

H & W divorced in 2008 pursuant to an agreed decree. Their son, Z, was 25 years old at the time and the decree recited that there was no child currently under the age of 18 or otherwise entitled to support. Both parties signed the decree. In 2012 the child, Z, filed a petition under TFC 154.301-309, claiming that he was an adult, disabled child entitled to child support. Both parents answered the suit separately and asserted that Z lacked standing and claimed various affirmative defenses include statute of limitation, estoppel and laches. The parents thereafter filed a joint motion to dismiss Z’s suit which stated no specific ground supporting dismissal. A hearing was held and both parents made arguments supporting their affirmative defenses. The trial court concluded it had no subject matter jurisdiction because plenary power had expired and Z’s suit was in effect a suit to modify the divorce decree. The trial court also issued findings justifying dismissal on statute of limitations grounds and signed an order dismissing Z’s suit. Z appealed. The COA initially notes that a suit for divorce and a SAPCR are two distinct suits and that the underlying divorce proceeding did not include a SAPCR. The COA concluded that the divorce suit did not include SAPCR relief in the underlying pleadings, the child was not named in the suit, and even though the decree made a finding that there was no child of the marriage otherwise entitled to support, the court never considered whether the parties’ then 25 year old disabled son might be entitled to support. Further, the COA noted that although H and W had signed and approved the terms of the final decree, Z had not. In light of the finding that the 2008 divorce proceeding did not include a SAPCR, the COA concluded that the divorce court had never obtained continuing, exclusive jurisdiction over Z. As such, the COA held that Z’s 2012 suit for support was not a suit seeking to modify the divorce decree but instead was a freestanding suit authorized by TFC 154.305 (suit for support may be brought by an adult disabled child at any time, regardless of age, if there is no court of continuing jurisdiction). Further, the COA noted that H & W’s joint motion to dismiss is not a motion recognized under the TRCP. Having concluded it was not viable “plea to the jurisdiction” the COA points out that the motion was likewise not presented as a motion for summary judgment on affirmative defenses, containing no summary judgment evidence and because the trial court issued findings of fact this would seem to indicate that the trial court did not treat the motion to dismiss as a misnamed MSJ. As such, the COA found that it could not determine a basis upon which to support the parents’ motion to dismiss Z’s suit and that dismissal was therefore error. Reversed and remanded.