McClure Law Group, Author at Texas Divorce Attorney Blog

Erroneous Calculation of Texas Child Support Award

Published on: October 23, 2017 | by McClure Law Group

In a recent Texas appellate decision, a woman appealed the amount of the lower court’s award of monthly child support. She argued that it had been erroneously calculated. The case arose when a couple married in 1992 and had two kids. The mother sued for divorce. The court named her and the father as joint managing conservators with standard visitation. The father was ordered to pay $1,460.91 per month in child support, as well as provide health insurance for the kids. This amount was to be paid until their oldest kid either turned 18 or graduated from high school, and then it would be reduced to $1,168.73. The father was also ordered to provide health insurance for both children.

The mother asked for factual findings. The court found that the father had testified he made $174,000.00 in 2013. The court found that the presumptive amount established by the Guidelines was to be applied to his first $8,550.00 of net resources. Any amount beyond that required the court to look at the parties’ income and the child’s proven needs. The lower court calculated the amount based on the Guidelines for both kids.

The mother appealed, arguing that the lower court had conflated the father’s net monthly income with his gross monthly wages to decide child support. The appellate court found that the only issue was whether the lower court had calculated the amount of child support correctly. It noted that the lower court had broad discretion to determine child support, and it would review its decision under an abuse of discretion standard. There is an abuse of discretion if the lower court’s decision is arbitrary, unreasonable, or made without referring to guiding principles.

Protective Order as a Result of Family Violence During Texas Divorce

Published on: October 9, 2017 | by McClure Law Group

A recent Texas divorce appeal arose after a wife filed for a protective order against her husband. She asked for the protective order after her husband and her father had a physical fight at a pet cemetery when the group was trying to bury a dead family dog. Divorce proceedings had commenced by then.

At the graveyard were the husband and wife, their children, the wife’s father, and his wife. While the husband and father were digging with their shovels, the father’s shovel touched the husband’s scalp. He apologized to the husband and said it was an accident. However, the father didn’t believe the apology, and a fight broke out. The father was hit and kicked by his son-in-law, who later claimed he acted in self-defense. The trial judge determined that the husband had perpetrated family violence and would likely do so again. The wife was awarded a protective order and attorney’s fees.

The husband argued that there wasn’t enough legal or factual evidence to support the order and appealed. He argued it should be reversed. The appellate court explained it would need to decide whether the evidence submitted would allow a reasonable fact finder to get to the same conclusion. If it would, the evidence was enough to support the finding. In looking at whether the evidence was factually sufficient, it didn’t need to defer to the evidence that supported the decision. Instead, it had to consider all of the evidence in a neutral light and decide whether the finding cut so far against the preponderance of evidence as to be manifestly unjust or wrong.

Husband Asks for Marriage to be Declared Void in Texas

Published on: August 21, 2017 | by McClure Law Group

In a recent Texas divorce case, a husband appealed from a divorce decree. He and his wife married in 2014, and they had a son in the same year. In the following year, he petitioned the court to declare that their marriage was void, claiming that his wife’s prior marriage in Eritrea had never been properly concluded. Therefore, he argued, their marriage was void. She counter-petitioned for divorce.

The trial was bifurcated such that the court looked at whether the marriage was valid in one proceeding and decided the divorce-related concerns in a separate, later proceeding. During the first proceeding, the wife testified she married an Italian citizen in Eritrea in 2002, and she had two kids with him. They were legally separated in Italy, and her ex-husband was ordered to pay her child support. She also filed for divorce in Eritrea in 2013. The record included a decree from Eritrea in which the divorce was stated to be in 2013. The ex-husband didn’t appear in court, but a divorce was decreed, and the wife believed she was properly divorced.

The husband showed that the Italian legal proceedings were ongoing in 2013. The wife testified that the Italian proceedings were to get legally separated, but she’d asked for the divorce in Eritrea. Neither the wife nor the husband submitted information about Italian or Eritrean divorce law. At the end of the first proceeding, the husband’s request that his marriage be declared void was denied.

Duties Owed by Constructive Trustee for Property Awarded to A Spouse in Texas

Published on: July 21, 2017 | by McClure Law Group

In a recent Texas divorce case, the court examined a divorce decree that named a husband as constructive trustee of property decreed to the wife. The property at issue was a 50% undivided interest in the shares of an LLC. The dispute in the case was whether the constructive trustee had to give the wife documentation showing the status of the shares and the LLC’s tax returns and financial statements.

The case arose when the couple divorced and a mediated settlement agreement was incorporated into their divorce decree. The couple had agreed that any shares of the LLC that had been awarded to the wife would still be managed by the husband, who also had the exclusive right to control, manage, possess, and exercise the rights associated with shares of the LLC held in his name. The decree also stated that the husband was the constructive trustee for the wife’s benefit with regard to any of the LLC’s shares to the extent he was obligated to pay her under that provision of the agreement. It also ordered him to pay her 1/2 of the sum of all of the monies he received due to selling shares of the LLC.

The wife wanted assurance that the husband was properly maintaining the values of the LLC shares when he didn’t answer her questions. She sued him and moved for the appointment of a Rule 172 auditor. Through several procedural mechanisms, she asked for an accounting of the LLC’s finances from 2011 to the present. She also wanted him to produce the tax returns and K-1 forms that were related to her ownership interest. To support her claims, she claimed that the husband owed her statutory and common law duties, including a duty to give her an accounting, as a constructive trustee.

When Does an Uncle Have Standing to Petition for Custody in Texas?

Published on: July 10, 2017 | by McClure Law Group

In a recent Texas child custody case, the children’s maternal uncle asked the trial court to name him to be sole managing conservator of the kids. The kids’ father, who was joint managing conservator of the kids when their mother died, moved to dismiss the lawsuit on the basis that he couldn’t establish standing to maintain the claim. The court determined that the uncle had failed to present enough evidence to show that the kids’ present situation would significantly harm their health or emotional development, as required by Texas Family Code section 102.004(a)(1).

The mother and father were appointed joint managing conservators of their two kids in 2012, with the mother having the right to designate a primary residence. The mother died of cancer in 2015 when one child was nine and the other was four. The father took over daily care for his kids. Prior to the mother dying, the kids had had significant interaction with the mother’s family, particularly their uncle on that side. After the death, the father refused to bring the kids to visit with the uncle’s cousin and didn’t bring the kids to their mother’s memorial service.

The uncle brought a petition, asking to be sole managing conservator of the kids, and supported it with an affidavit in which the mother had asked that he and his wife care for the kids if she died and in which he stated he and his wife had been actively involved in the kids’ lives. He also claimed that the father hadn’t supported the kids financially, hadn’t been involved with the kids before their mother died, and didn’t provide appropriate emotional support or arrangements.

Reimbursement in Texas Divorce

Published on: June 16, 2017 | by McClure Law Group

In a recent Texas appellate decision, a wife appealed a judgment dividing a community estate between her and her husband. She argued that the trial court should have ordered the husband to reimburse her for certain expenses.

The couple had married in 2004 and divorced in 2013. The lower court awarded the wife a community residence as separate property. The appellate court court held that this residence was improperly included in the community estate, and it sent the matter back down for a new property division trial.

After that, the wife asked the court to reimburse her for money she’d spent on a house in Fort Worth, as well as what she’d paid to satisfy the husband’s premarital debts and premiums she’d paid on his insurance policies. She asked to be named the beneficiary of the husband’s life insurance policy if she weren’t awarded reimbursement for premiums she’d already paid. The lower court held a hearing on the reimbursement issue.

Property Distribution After Dissolution of a Texas Common Law Marriage

Published on: June 15, 2017 | by McClure Law Group

In a recent Texas appellate case, the court considered a divorce arising from a common law marriage. The husband argued that the lower court had made a mistake in mischaracterizing parcels of real property as community property and failing to reimburse him.

The couple started their common law marriage during the spring of 2013. No children came of the marriage, and there were differences about the precise beginning. Two pieces of real property were acquired that spring. The husband claimed he got one parcel, including the main house, by himself as a single person.

Two days later, the couple acquired an adjacent parcel as a married couple. There were five or six houses on it. According to the wife, both properties were gotten during the marriage and thus should be considered community property. The husband claimed both were separate property because their marriage didn’t start until after the first property was purchased. He claimed that the second property should still be characterized as separate property because title was taken by tracing back to an earnest money contract predating the marriage.

Retirement Benefits and COLA in Texas Divorce

Published on: May 19, 2017 | by McClure Law Group

In a recent Texas appellate decision, a wife appealed from an order that denied her petition to enforce and to clarify the divorce order. The husband and wife had divorced in 1990 and stipulated to the divorce decree. At that time, the husband had retired from the United States Army and got retirement pay on a monthly basis. The divorce decree determined that the community interest in the monthly retirement benefit was 80%, and the cost of living-related increases would be made periodically and would likely need to occur in the future.

The wife was awarded a portion of the retirement benefit. The wife was entitled to 50% of the cost-of-living increases (COLA) to which the husband would become entitled from the date of the divorce to the death of the husband. In 2000, the wife asked the court to clarify the divorce decree and enforce her part of the COLA.

The judge decided she was entitled to $774.02 as her portion of COLA benefits that hadn’t already been paid by the husband. She appealed. The referring court adopted the judge’s finding that she could get clarification of the divorce decree and that she should be given 50% of the COLA benefits. It reversed the exact amount that should be awarded. Specifically, it ordered that she would be entitled to $391 each month of the retirement pay plus half of any COLAs when they were received. She was awarded $7,628 for all of the past COLA payments that the ex-husband had not paid. Nobody appealed this award.

Community Property Presumption In Texas

Published on: March 14, 2017 | by McClure Law Group

In Texas, all property possessed by either spouse at the time of divorce is presumed to be community property under Texas Family Code § 3.003. A recent appellate case arose out of the divorce of a Texas couple who had been married in Mexico in 1999. In Mexico, they got their civil marriage application, which required them to choose between two marriage property systems, separate property or community property, in order to regulate ownership of their items of property. They chose to have separate property.

In 2015, the wife sued for divorce. She asked for the community property to be divided disproportionately. The husband counterclaimed and stated that he and his wife had to have separate property. He attached a facsimile of the couple’s marriage certificate that included the agreement to have separate property during the marriage, but the certificate wasn’t signed.

At trial, an expert testified for the husband and provided the opinion that in Mexico, a marriage application is treated as a prenuptial agreement. The husband testified that the couple signed the application, but the wife testified she didn’t remember signing the application. She claimed only the husband handled the paperwork, and she didn’t even remember talking about choosing a property regime before the wedding.

Maintenance Seized From Retirement Account in Texas Enforcement Lawsuit

Published on: February 24, 2017 | by McClure Law Group

In Dalton v. Dalton, a Texas ex-husband appealed from post-divorce enforcement orders. The couple was divorced in 2011, with a decree giving full faith and credit to an order of separate maintenance that determined child support, custody, property division, and other aspects of the divorce. The husband was required to pay his former wife support maintenance (alimony) of $1,309,014.00, paid in increments on a monthly basis.

Afterward, the wife tried to get the ex-husband to comply. The court had rendered a wage withholding order for child support and spousal support, and the wife had asked for enforcement. She’d also petitioned for a qualified domestic relations order for the full amount of spousal support. The parties negotiated. In 2015, the court granted the QDRO petition and denied the husband’s motion to terminate the wage withholding order. He was found in contempt, and a QDRO assigned to the wife a portion of his retirement benefits to cover what he owed her in alimony.

The husband appealed the First Amended QDRO, arguing that the initial orders didn’t allow these retirement benefits to be paid to his ex-wife and that since what was at issue was contractual alimony, it couldn’t be satisfied by his retirement benefits. The appellate court explained that Texas Family Code Section 9.101 allows a lower court that renders a divorce decree to have continuing exclusive jurisdiction to render an enforceable QDRO. Therefore, the lower court was able to render the QDRO.