INTERESTING CASES: September 7, 2016
Sallee S. Smyth
1.In re T.B. & A.B.,2016 Tex. App. LEXIS 7560 (Tex. App. – Fort Worth July 14, 2016) (Cause No. 02-16-00064-CV)
F and M live in Florida and have 2 children. M and kids move to TX in 2012 and F filed parentage action. FLA court signs an agreed parentage order in 2013 establishing paternity and addressing issues of custody and possession but not ordering the payment of any child support. In 2014 M registered the FLA order in TX and filed a suit to modify. F filed a motion to dismiss challenging jurisdiction under the UCCJEA. The TX court attempted to confer with the FLA court without success. In 2015 M filed a formal motion requesting that the courts confer. F filed a motion in FLA seeking to re-open the case there and requesting the FLA court to confirm its jurisdiction. The TX court made repeated efforts to contact the FLA court who never responded. Finally, after 4 months with no response and no ruling from FLA on H’s motion to re-open the TX court set the case for trial. F and M both appeared and after receiving evidence the TX court rules and entered a modification order. F appealed. H argued that under the UCCJEA since the FLA court was the court issuing the initial custody order and he remained a resident of FLA, the TX court could only acquire jurisdiction if the FLA court declined and deferred. F argued this was true even if TX was a more convenient forum, asserting that only the FLA court could decide that. The COA agreed that TX was a more convenient forum and found that the FLA court’s refusal to respond to the inquiries from the TX trial court for such an extended period, coupled with the FLA court’s failure to rule on F’s motion to reopen the case in FLA served as an implicit ruling to decline jurisdiction and defer to TX, affirming the TX court’s decision to take jurisdiction under the UCCJEA. F also argued that the trial court had no jurisdiction to issue child support modification orders under UIFSA. However the COA found that the provisions of the prior FLA order obligating F to pay all travel expenses for visiting the children was not a “child support” order and thus the TX court had jurisdiction to issue an initial child support order. Judgment affirmed.
2. In the Interest of C.J.N.-S.,2016 Tex. App. LEXIS 7707 (Tex. App. – Corpus Christi July 21, 2016) (Cause No. 13-14-00729-CV)
H and W divorced in 1998. They had two children. CJNS was born in 1993 and turned 18 in 2011. Records from the divorce indicated that the child had ongoing medical problems prior to turning 18 but neither the final decree nor an agreement incident found that the child was disabled. CJNS began living on her own at age 20 and had a job. However she lost that job when she became ill and required medical care. CJNS continued to live alone but W visited her and cared for her several days a week. In 2014 W filed suit seeking child support for CJNS. H argued that W had no standing because TFC 154.303 only permits suit to be filed by a parent or person who has physical possession and/or guardianship of the child or the child themselves in certain circumstances. The trial court found the statute ambiguous and declared the child eligible for support and ordered the H to pay a periodic amount. H appealed. The COA found that the statute was clear, and that a parent must have “physical” custody of the child or court-ordered guardianship in order to have standing. Since neither situation existed, the judgment was reversed and remanded with instructions to enter a judgment dismissing W’s case.
3. Shanklin v. Shanklin,2016 Tex. App. LEXIS 7708(Tex. App. – Corpus Christi, July 21, 2016) (mem. opinion) (Cause No. 13-15-00392-CV)
W filed for divorce and soon thereafter she and H (pro se) entered into a Rule 11 agreement dividing their estate. The trial court signed a final decree before 60 days had expired from the date the original petition had been filed. H retained counsel and sought leave to withdraw his consent to the Rule 11 agreement. At the hearing on his request H offered no evidence but argued that the decree was in violation of TFC 6.702(a) prohibiting divorce before the expiration of the statutory waiting period. The trial court denied H’s request to withdraw consent and signed a new decree identical to the first one except for a new date. H requested FF/CL on what he claimed were contested issues. The trial court issued findings that the Rule 11 agreement resolved all issues and was enforceable. H filed a notice of appeal more than 30 days but less than 90 days after judgment. The COA dismissed H’s appeal for want of jurisdiction finding his notice of appeal untimely. The COA notes that a request for FF/CL will only extend appellate deadlines when findings are either required, or if not required, when findings could properly be considered by the appellate court. Here, although H timely sought findings, they were not required or appropriate for consideration because the case was resolved by a Rule 11 agreement. The case was not decided based on evidence admitted in a contested trial. As such the request for findings did not extend H’s deadline past 30 days from the date of judgment. Appeal dismissed.
4.In re Rocher, 2016 Tex. App. LEXIS 8266 (Tex. App. – Houston [14th Dist.] August 2, 2016) (mem. opinion) (Cause No. 14-15-00462-CV)
Adult female filed a petition for change of name from Aidyn to Alex and the petition further requested an order changing petitioner’s sexual designation from female to male. At the hearing counsel for petitioner asked petitioner if she was legally a female to which petitioner answered yes. Counsel cited the court to TFC 2.005(b)(8) which permits a gender change order to be used for purposes of identification and further provided the court with two cases involving gender identification issues (Araguz, 443 SW3 233 and NIVS, 2015 TAL 2282). The trial court granted the name change but denied the request for a gender change order. Petitioner appealed. The COA noted that there was no testimony regarding the purpose of the request for a gender designation order but on appeal the petitioner asserted it was for drivers license purposes. The COA found that although TFC 2.005 does permit use of such an order for ID purposes, it does not specifically authorize the issuance of such an order, nor did any of the case law cited by counsel. The COA rejected arguments that would allow for amending petitioner’s birth certificate under TX statutes finding that they did not apply since petitioner was born in Pennsylvania. Petitioner’s constitutional challenges were likewise overruled as they were never preserved at the trial court level. In effect the COA determined that there was no authority under which the gender designation order was permitted and further that there was no evidence that petitioner’s gender designation was currently inaccurate, petitioner having admitted that she was legally a female. Judgment affirmed.
5.In re Turner, 2016 Tex.App. LEXIS 8517(Tex. App. – Austin August 9, 2016, orig. proceeding) (Cause No. 03-16-00367-CV)
In a pending divorce proceeding the trial court signed an order referring the matter to a Special Judge under CPRC 151 pursuant to the agreement of the parties. The matter was tried to the special judge, a judgment was rendered and a final decree was signed. Several months following the final judgment W filed a motion to clarify under TFC Chapter 9 and she again requested referral of the matter to the same special judge. H objected but he trial court overruled the objection and one again referred the matter to the special judge. H filed for mandamus relief. The COA notes that although the court that rendered the decree retains the power to clarify and enforce it under Chapter 9, that relief is only available in a new suit brought under Chapter 9. The authority of the special judge in the original divorce proceeding ended with verdict and judgment and any new referral in a new suit required the agreement of the parties. Because H did not agree to the referral in the Chapter 9 proceeding, the trial court’s order was improper. Mandamus granted.
6.In re Fuentes,2016 Tex. App. LEXIS 8560 (Tex. App. – Houston [1st Dist.] August 9, 2016, orig. proceeding) (Cause No. 01-16-00366-CV)
W sued for divorce, naming several companies run by H and alleging that they were his alter ego. W claimed that H exercised control over assets in excess of $1 billion including many international companies. H did not participate in the trial and the court rendered a default judgment awarding W 50% of the parties claimed marital estate and a fraud on the community judgment for $567 million. H filed a motion for new trial. Several intervenors filed notices of appeal. Subsequently the trial court denied H’s MNT and he too filed a notice of appeal. W filed a motion for temporary orders pending appeal seeking spousal support and attorneys fees. H sought to dismiss W’s request claiming that the court had no jurisdiction to grant temporary orders more than 30 days after the first notice of appeal had been filed. The trial court denied H’s request and held a hearing at which time it ordered H to pay W $300,000 per month in spousal support and $50,000 per month for attorneys fees. H sought mandamus relief. Initially the COA found that W’s request for relief was timely under TFC 6.709 because the 30 day jurisdictional period runs from the date H filed his notice of appeal of the divorce (not 30 days from the date intervenors had earlier perfected their appeals). This is true because W was not entitled to temporary support until such time as there was an appeal from the divorce itself. The COA further found that such orders could be challenged either within the appeal itself or upon mandamus review if there was no adequate remedy by appeal. The COA acknowledged that because H was ordered to pay the fee amounts on a monthly basis, review by mandamus was necessary. Finally the COA reviewed the sufficiency of the evidence to support the monthly awards. W testified that she did not really know what her monthly expenses were and someone else took care to pay all of her bills. Further there was no evidence in the record suggesting that W would incur $50,000 per month in fees. Based on the lack of evidence the COA granted mandamus relief ordering the trial court to vacate its order and thereafter conduct a hearing to determine proper amounts within 30 days.
7.In re G.P.,2016 Tex. App. 8964 (Tex. App. – Fort Worth August 17, 2016, orig. proceeding) (Cause No. 02-16-00236-CV)
In a 2013 order adjudicating parentage, M and F were appointed JMC of one child but neither was given the exclusive right to establish the child’s residence and domicile was designated in Denton and contiguous counties. In 2015 Grandparents filed suit in a new cause number but same court to modify the order and designate them as JMC with M. GP alleged that F should be denied access. At a temporary hearing the court retained M and F as JMC but named GP as temporary PC and for the first time gave M the exclusive right to determine the child’s residence. M filed a motion to modify these temporary orders months later asking that F’s access be supervised. GP also filed a motion to modify TO, again asking that they be given primary conservatorship on a temporary basis. The trial court notified the parties that the case could not be heard soon enough but took judicial notice of a psychological evaluation and counseling notes and ordered that all access by F be supervised. Five months later GP filed a second motion to modify TO alleging that the parents had created an environment for the child that was not conducive to the child’s therapy and again sought primary temporary custody. The trial court issued another written ruling this time determining that the GP had not asserted any basis to modify temporary orders under TFC 156.006(b) (temporary modification of right to establish domicile only allowed if circumstances of child may significantly impair them; person with right relinquishes in excess of 6 months; or child over 12 states preference) and failed to include a required affidavit. GP’s attorney sent an email to the court and all counsel stating his belief that TFC 156.006 did not apply but court responded that its position had not changed. GP sought mandamus relief. The COA determined that the requirements for temporary orders under TFC 156.006 must only be met in circumstances where someone seeks to temporarily modify a parent’s right to establish the child’s residence as that right may be specified in a FINAL order, not a temporary order. Here, because there was no designation in the final order that either parent possessedthat right and M was only given that right for the first time in a temporary order issued in the pending modification suit, the GP were not required to establish any of the statutory grounds. Mandamus granted and trial court ordered to conduct a hearing on GP’s motion within 30 days.
8.Gonzales v. Maggio, 2016 Tex. App. LEXIS 8971 (Tex. App. – Austin August 18, 2016) (Cause No. 03-14-00117-CV)
H and W, both attorneys, formed a general law partnership during marriage and their primary practice as personal injury trial work.. There was no written partnership agreement but it was undisputed that they shared in the capital, profits and losses 50/50. After divorce was filed the parties agreed to part ways professionally and signed a Rule 11 agreement stating W would no longer be a member of the firm (G&G) and that the partnership was dissolved. They further agreed that liabilities of the partnership and other issues necessary to winding up would be most likely handled in the final trial of the divorce. The parties agreed that this triggered obligations under the Texas Business Organizations Code and that the partnership continued in order to wind up its obligations and that the partnership was not legally terminated until that was complete. In accordance with the Rule 11 agreement H and W sent a letter to all existing clients giving them the option of staying with H who would continue a firm known as G&G (now a PC), going with W or hiring completely new counsel. The parties managed to settle some of the cases while their divorce litigation was ongoing but disputes arose as the division of fees. Ultimately the issue was submitted to the trial court (after they completed a jury trial over custody of their children). At trial the dispute revolved around what were called two “buckets” of partnership originated cases. Bucket 2 was made up of 30 partnership originated cases that settled between the Rule 11 dissolution agreement and the divorce, 25 of which had been resolved by H and 5 by W. Bucket 3 consisted of 40 cases which were not resolved at the time of divorce. Of these 40 cases, H was counsel on 33, W was counsel on 6 and one had been referred to an outside attorney. After considering the evidence the trial court awarded H and W each 50% of the Bucket 2 cases after reimbursement of expenses to the party who had advanced same. The court found the total fee amount to be approximately $90,000 and awarded each one-half. As to the Bucket 3 cases, the court awarded H and W a percentage based on their involvement post-dissolution using a specified formula. H appealed. H argued that the trial court had no authority to award interests in either Bucket 2 or Bucket 3 because these were never assets of the community estate. H argued that they were partnership property, not marital property. W argued that because there were no FF/CL, the division could be upheld on any theory supported by the evidence and further that the trial court acted properly in “winding up” the partnership as the parties agreed would happen in their original Rule 11 agreement. The COA agreed that W’s theory could support a division of the Bucket 2 cases because these cases were settled and the funds were received, making a distribution of these funds from the partnership community property subject to division. However, as to the Bucket 3 cases the COA found that the trial court’s award of a percentage in these ongoing contingent fee contracts was inconsistent with the BOC which provided that a partner is only entitled to distributions in cash during the winding up process until the partnership agreement provides otherwise. Here there was no partnership agreement so the trial court’s award of a % interest in these cases effected an award of partnership property which was prohibited. H also argued that the partnership forfeited its right to any fees in these cases when the partnership dissolved and W withdrew from representation of specified clients. The COA rejected this argument noting that both H and W had ongoing obligations to the partnership in the winding up process and their rights in and obligations to the partnership remained. Finally the COA rejected H’s argument that the trial court’s division constituted impermissible fee splitting under the Rules of Professional Conduct. The COA affirmed the final judgment, including division of the Bucket 2 cases, but reversed and remanded for further proceedings as to the division of the Bucket 3 cases.