Kelly McClure, Author at Texas Divorce Attorney Blog

Texas Appeals Court Affirms Spousal Maintenance Modification

Published on: March 4, 2024 | by Kelly McClure

A spouse paying Texas spousal maintenance may seek modification if there has been a material and substantial change in circumstances, which may include significant change in their income. In a recent case, a former husband challenged a modification award based on the modified amount of maintenance as well as the court’s denial of his request to apply the modification retroactively.

The parties’ 2011 Agreed Final Divorce Decree ordered the husband to pay $1,150 in monthly spousal maintenance until the wife remarried or died or until her disability was removed or the trial court otherwise rendered a new order. The husband earned about $80,000 per year at the time.

Motion for Modification

The husband petitioned for modification in November after he retired the previous June. The court granted the modification in an order signed in June 2019, although the hearing occurred in May 2016. The court granted the husband’s motion for reconsideration and vacated the order.

Texas Appeals Court Concluded Father Did Not Have Sufficient Notice for Contempt Order

Published on: February 28, 2024 | by Kelly McClure

Parents sometimes have difficulty getting their child’s other parent to comply with a Texas custody or visitation order. If a parent fails to comply with requirements to exchange the child, the other parent may seek enforcement of the court’s order, sometimes through contempt. In a recent case, a father challenged a court’s contempt order.

According to the appeals court’s opinion, the trial court entered a standard possession order in 2012 that set forth where the exchanges were to occur. When the mother’s possession ended, the exchange occurred at her home. When the father’s possession ended, it occurred at either his home or the mother’s home, depending upon circumstances set forth in the order. The trial court signed a modification order on the mother’s motion in March 2017 that changed the exchange location to the police department parking lot. The modification order also allowed the parties to change the location in writing. In August 2017, the parties entered a Rule 11 agreement moving the exchange location to a different police department parking lot and the court signed and the court signed an order adopting their agreement.

The mother filed a motion for enforcement by contempt in 2023. She relied on the original 2012 order and the 2017 modification order. The father moved for a directed verdict because the mother did not plead “the date, the time, and the place of the alleged violations,” but the motion was denied.

Texas Court Denies Ex-Wife Postjudgment Interest on Accounts Awarded in Divorce

Published on: February 19, 2024 | by Kelly McClure

Appeals of a Texas divorce can be lengthy and may sometimes result in a significant delay in a party receiving the assets they were awarded in the decree. In some cases, courts may award postjudgment interest on a money judgment. In a recent case, a Texas appeals court considered whether an award of a brokerage account in a divorce property division authorized postjudgment interest.

Case History

According to the appeals court’s opinion, the parties got married in the early 1990s and divorced in 2018. The decree awarded the wife two investment accounts, together valued at $548,177.25. The decree also awarded her the equivalent value of $1,062,242.20. The accounts were invested and therefore fluctuated in value. The decree provided that the accounts were to be divided as “more particularly defined in a Qualified Domestic Relations Order signed by the Court.” The decree did not state the amounts of cash or securities held in the accounts, but did include “interest, dividends, gains, or losses” on the awards.

The husband appealed, but the appeals court affirmed the property division and the Texas Supreme Court denied review. The appeal was not resolved until April 19, 2021, and the wife was denied access to the accounts while the appeal was pending. She requested interest on their value, but the trial court concluded the awards were not “money judgments” and denied the request for interest.

Texas Appeals Court Rejects Challenge to Jury Charge in Divorce Case

Published on: February 14, 2024 | by Kelly McClure

In a jury trial, the court must submit to the jury the instructions and definitions needed for it to render a verdict. The court cannot comment directly on the weight of the evidence, but an incidental comment on the weight of the evidence may be acceptable. Tex. R. Civ. P. 277. A husband recently appealed his divorce decree, arguing the trial court erred in failing to give a requested jury instruction and improperly commenting on the weight of the evidence.

The Trial

According to the appeals court, the husband petitioned for divorce in August 2019, seeking a disproportionate share of the marital estate and alleging the wife committed fraud on the marriage. He asked the court to confirm the marital residence was part separate property and set aside a 2019 gift warranty deed conveying it to the wife. He alleged the deed was “done by mistake, undue influence, and under duress.”

The wife disputed the husband’s claims of mistake or fraud. She also sought a disproportionate share of the property and requested exclusive possession and use of the residence.

Texas Court Made Improper Substantive Change to Property Division with Order Striking Dollar Amounts

Published on: February 9, 2024 | by Kelly McClure

A trial court in a Texas divorce retains subject matter jurisdiction to enforce a decree or to clarify ambiguity in the decree. Texas strongly favors finality of judgment, so the court may not make substantive changes to the property division in a divorce decree once it has become final. The court does not have the authority to “amend, modify, alter, or change” the final property division despite errors in characterizing the property or applying the law. The court may, however, issue orders to clarify an ambiguous decree or to enforce the decree. A court interprets a Texas divorce decree according to the plain language of the decree. The court must interpret the decree as a whole and give effect to all provisions. A former wife recently challenged a court order purporting to clarify the final divorce decree, arguing it substantively changed the property division.

Divorce Decree and Subsequent Order

The trial court filed with the clerk and sent the parties a letter rendering the property division following the bench trial. The letter awarded to the wife as separate property 50% of three specified accounts and 50% of any stocks, options, or retirement accounts that were not listed in the letter but had vested as of a specified date. The court directed the husband’s counsel to draft a decree comporting with the letter rendition.

The husband’s attorney added details that were not expressly included in the letter. He specified the date when the balances would be calculated for the property division and included a dollar amount for each account. The parties’ attorneys approved the draft divorce decree as to form. The trial court signed the decree as drafted by the husband’s attorney. The decree became final without either party appealing.

Texas Appeals Court Affirms Custody Modification Contrary to Child’s Preference

Published on: February 4, 2024 | by Kelly McClure

In a Texas nonjury custody proceeding, upon the request of a party or certain other interested individuals, the court must interview a child who is at least 12 years old or may interview a child under 12 in chambers to determine their wishes regarding conservatorship or the person who will have the exclusive right to determine their primary residence. Tex. Fam. Code § 153.009(a). The interview is intended to help the court make determinations regarding conservatorship and possession, but the court still has discretion to determine the child’s best interest. Tex. Fam. Code § 153.009(c). Case law has held that the court retains its broad discretion and can either consider the information from the interview or even ignore it. In re A.C. A father recently appealed a modification order that was not consistent with the child’s preference.

The parents were appointed joint managing conservators of their then two-year-old child in their 2009 divorce, with the father having the exclusive right to designate the child’s primary residence. A modification order in 2013 set forth the mother’s possession schedule, dependent on where she lived.

Modification Proceeding

The mother petitioned for modification in 2021, seeking the right to designate the child’s primary residence without a geographic restriction. She also asked that the father be limited to supervised visitation.

Texas Appeals Court Affirms Modification Making Mother Sole Managing Conservator

Published on: January 29, 2024 | by Kelly McClure

A parent seeking modification of a Texas custody order must prove a material and substantial change in circumstances has occurred and that the modification would be in the child’s best interest. Tex. Fam. Code § 156.101. A father recently appealed an order naming the mother sole managing conservator of their three children after the parents had previously shared joint managing conservatorship.

The parents’ agreed divorce decree named them both joint managing conservators of their three children and gave the mother the exclusive right to designate their primary residence.

According to the appeals court’s opinion, the father refused to give their two daughters back to the mother after his holiday visitation. He alleged it was unsafe for the girls to go back to the mother’s home with the son because the son had assaulted one of the daughters.

Texas Parent Seeking Modification of Custody Must Meet Burden of Proof When Other Party Defaults

Published on: December 30, 2023 | by Kelly McClure

A parent seeking modification of a Texas conservatorship order must show by a preponderance of the evidence that there has been a material and substantial change in circumstances and that the modification would be in the child’s best interest. A Texas appeals court recently held that the parent must meet this burden even if the other party defaults.

According to the appeals court’s opinion, the child was born in October 2019. The trial court signed an agreed order in February 2020 establishing paternity, naming both parents joint managing conservators, and awarding the mother the right to designate the child’s primary residence as well as other exclusive rights. The father had a modified possession schedule that started with supervised visitation and transitioned to unsupervised possession, and then a standard possession order after a specified number of visits.

Modification Proceeding

The father petitioned for modification, seeking a standard possession order without supervision. The mother did not appear at the hearings, and the court granted the requested order.

Texas Grandmother Failed to Prove Standing in Child Visitation Case

Published on: December 27, 2023 | by Kelly McClure

Fit parents have a fundamental right to make decisions regarding child rearing pursuant to Troxel v. Granville. A non-parent requesting possession or access must establish that they have standing pursuant to the Texas Family Code or the court must dismiss their suit. Pursuant to Tex. Fam. Code 153.432, a grandparent seeking possession or access must attach an affidavit alleging that denial of possession or access to the child would significantly impair the physical health or emotional well-being of the child. This allegation and supporting facts are required for the grandparent to show they have standing.

Grandmother’s Petition

A grandmother recently appealed a trial court’s dismissal of her petition for possession or access to her grandchild. The paternal grandmother had filed suit for possession or access to her deceased son’s child. Because there was no testimony at trial, the appeals court recited the facts as alleged in the grandmother’s petition and affidavit. The child was born in April of 2020. Although the child lived with her mother at the time of the appeal, the grandmother alleged the child lived with her for the first seven months after she was born.

In her affidavit, the grandmother alleged the mother was an “unfit parent.” She stated one of the mother’s friends had molested the mother’s older daughter. She also stated in the affidavit that the mother left the child with her when the child was two weeks old, but later claimed the grandmother had kidnapped the child. The grandmother stated she returned the child to avoid prosecution. The grandmother claimed the mother had been unable to provide for her older child before her younger child was born and that the mother had been physically and mentally abusive to the older child. The grandmother also stated that the mother was not able to make a “significant contribution” to the child’s upbringing. The grandmother averred that the mother had once given the child “spoiled formula” and that she was not “properly bathed” at times. The grandmother also claimed she was better able to take care of the child financially.

Redistribution of Assets Was Modification and Not Enforcement of Texas Divorce Decree

Published on: December 14, 2023 | by Kelly McClure

A trial court may vacate, modify, correct or reform its judgment or grant a new trial within 30 days after the judgment is signed. Tex. R. Civ. P. 329b. Additionally, if a party files a timely motion, the trial court has the power to take those same actions until 30 days after any timely motions are overruled by an order or operation of law. The court’s plenary power generally expires 30 days after the final judgment is filed if there is not a timely post-judgment motion.

Courts generally retain continuing subject-matter jurisdiction to clarify and enforce the property division set forth in a Texas divorce decree. The court has the authority to render additional orders to enforce, assist in the implementation of, or clarify the property division. It may specify the manner of the property division more precisely, but may not change the substantive property division. A court may order delivery of specific property through its enforcement power. If a party has not delivered property awarded pursuant to the divorce decree and delivery is not an adequate remedy, the court may award damages. Additionally, a court may render judgment against a party who fails to make monetary payments as awarded in a decree.

A former husband recently challenged a court order purportedly enforcing the property division in his divorce decree, arguing that it instead improperly modified the division.