Kelly McClure, Author at Texas Divorce Attorney Blog

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.

Clarification and Enforcement of Texas Property Division

Published on: December 6, 2023 | by Kelly McClure

A court must order a just and right division of the marital estate in a Texas divorce. Once the divorce is final and the property has been divided, the property division generally may not be re-litigated. The trial court does, however, retain the power to clarify and enforce the division. Tex. Fam. Code § 9.002; Tex. Fam. Code § 9.008. The court may not alter or change the substantive property division, but may render additional orders to enforce, clarify, assist in implementing, or specify the manner of effecting the property division. Tex. Fam. Code § 9.006. A former husband recently challenged a trial court’s partial denial of his request for clarification and enforcement.

According to the opinion of the appeals court, the final divorce decree awarded the husband certain personal property, specifically including the outdoor furniture purchased from a particular person and any property the wife had removed from the homestead, including certain dining room furniture and two bronze statues.

Clarification and Enforcement Hearing

The husband petitioned for clarification and enforcement of the property division, alleging the wife had not turned over certain property awarded to him, including two bronze statues, certain patio furniture he had purchased from a specified individual, and certain dining room furniture. He asked the court to order her to turn them over by a specified date, and to award him their replacement value if she did not.

Parties to a Texas Informal Marriage Must Represent Themselves as Married

Published on: November 20, 2023 | by Kelly McClure

When a person seeks divorce from an informal marriage, they often must prove the informal marriage existed. To prove a Texas informal marriage, the party must show by the preponderance of the evidence that the couple agreed to be married, subsequently lived together in Texas as spouses, and held themselves out to others as married. Tex. Fam. Code § 2.401. A man recently appealed summary judgment in his divorce case on the ground he had not raised an issue of fact as to the existence of an informal marriage.

Divorce Case

The petitioner filed for divorce in November 2021, alleging the parties had been married on or about March 18, 2002.

In her answer, the respondent asserted a verified defense that they parties were not married. She filed a motion for summary judgment, attaching tax returns, deeds, and other exhibits that she argued showed the parties had not represented themselves as married “to the general public or others.” She also averred that the petitioner had never presented her as his wife to his children, that his children had not socialized with her or her family because they knew she was not the petitioner’s wife, and that he lived with another woman.

Texas Court Denies Retroactive Termination of Child Support to Child’s 18th Birthday

Published on: October 30, 2023 | by Kelly McClure

A court may retroactively modify a Texas child support order in some circumstances, but it generally may only do so as to child support obligations that accrue after the earlier of the date of service of citation or an appearance in the modification suit. Tex. Fam. Code 156.401. A father recently challenged a modification terminating his child support obligation, arguing it should have applied retroactively to the date of his son’s eighteenth birthday.

When the son was fourteen, he enrolled in the American School, which is a private, distance-learning school. Students complete their course by correspondence and computer-based work. Students take two courses at a time and must complete a course before being provided another. Courses earn one-half to one unit, and students must earn eighteen units to graduate high school.

The son’s brother sadly died in April 2017. The mother moved out of the marital home in June and the parents filed for divorce in July. The son remained in the home with his father. With all of this going on, the son fell behind and performed no work for his courses for a period of nine to ten months.

Texas Appeals Court Vacates Appointment of Receiver as Improper Modification of Property Division

Published on: October 27, 2023 | by Kelly McClure

A trial court may not amend, modify, alter or change the substantive property division in a divorce decree after expiration of its plenary power. The court retains jurisdiction, however, to enforce or clarify the property division in the divorce decree. A former husband recently appealed a trial court’s appointment of a receiver for the marital residence, arguing it constituted an improper modification of the property division set forth in the divorce decree.

Divorce Proceedings

The parties got married in 2009 and separated in October 2020, according to the appeals court’s opinion. The wife petitioned for divorce in November 2020, and the husband filed a counterpetition. In its written ruling, the trial court indicated the marital home would be sold with the proceeds equally divided. The ruling stated the husband was allowed to stay in the house until the sale.

No Violation of Due Process Based on Emails with the Court after Texas Divorce Trial

Published on: October 20, 2023 | by Kelly McClure

Both the Fourteenth Amendment to the U.S. Constitution and the Texas Constitution prohibit the state from depriving a person of a liberty interest without due process of law. Case law has established that parental rights are fundamental liberty interests. Due process generally requires that a person be given a meaningful opportunity to be heard. A mother recently appealed her divorce decree, arguing she was deprived of her due process when the court accepted evidence after trial but before entering the final decree.

According to the appeals court, the child was born in March 2020 and the father filed for divorce the following August. In its ruling, the trial court named the parties joint managing conservators and awarded the father the exclusive right to designate the child’s primary residence within two counties. The final decree divided the marital estate, awarding the father $104,738.93 and the mother $69,825.95 from the sale of the home.

Due Process Claims

The mother appealed, arguing the trial court violated her due process rights by accepting certain evidence after the trial.

Texas Court May Clarify Ambiguous Property Division

Published on: October 6, 2023 | by Kelly McClure

Once its plenary power has expired, a trial court cannot change the substantive property division stated in a final Texas divorce decree. It does, however, retain the power to clarify or enforce that property division. A Qualified Domestic Relations Order (“QDRO”) is a post-divorce enforcement order and therefore cannot change the property division. A QDRO can, however, specify how the property division can be carried out, without altering the substantive property division. If the QDRO substantively alters the property division, then it is void and may be amended to comport with the division in the decree. A wife recently challenged a clarification order addressing the division of the husband’s 401(k).

According to the appeals court’s opinion, the parties executed a mediated settlement agreement (“MSA”) that incorporated a spreadsheet dividing the marital estate. That spreadsheet indicated the parties would each receive half of $92,916.50 from the 401(k).

The final decree incorporated the MSA by reference and ordered the parties “to do all things necessary to effectuate” it. The decree awarded the husband the entire balance of the 401(k) “as reflected on [the spreadsheet]” except for the part awarded to the wife by the decree.

Court Has Broad Discretion in Determining Texas Custody

Published on: September 29, 2023 | by Kelly McClure

The court’s primary consideration in determining Texas custody is the best interest of the child. Tex. Fam. Code § 153.002. There is a rebuttable presumption that the parents being named joint managing conservators is in the child’s best interest. Tex. Fam. Code § 153.131. When a court names parents joint managing conservators, it must also designate which of them has the exclusive right to determine the child’s primary residence. Custody matters are highly fact-based, and the court generally has broad discretion in determining the child’s best interest and deciding who will have the exclusive right to determine the child’s primary residence. A father recently challenged the custody, child support, and property division in his divorce.

Custody

The parties separated after fourteen years of marriage. They had two children together. The trial court named both parents joint managing conservators with the mother having the exclusive rights to designate the children’s primary residence, receive child support, and make educational decisions.

According to the appeals court, the record showed that one of the children said she would “rather stay with mom.” The mother testified she had been the parent who took care of the children when they were sick, took them to medical appointments, prepared food, helped with homework, and put them to bed. She testified she thought it was in the children’s best interest to live with her. She alleged the father drank too much around the children.