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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.

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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.

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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.

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Texas family law has a rebuttable presumption that it is in the child’s best interest for the parents to be appointed joint managing conservators.  Additionally, generally a parent must be named sole managing conservator or both parents named joint managing conservators unless there is a finding such appointment would not be in the child’s best interest because it would significantly impair the health or emotional development of the child.  Tex. Fam. Code 153.131.

A maternal great-grandmother recently appealed a modification appointing the father sole managing conservator.

According to the appeals court’s opinion, the parents’ divorce decree in 2016 had named the mother sole managing conservator and the father possessory conservator.  A subsequent order appointed both parents temporary joint managing conservators, but gave the great-grandmother sole possession.  A subsequent order in 2019 named the mother and great-grandmother joint managing conservators with the great-grandmother having the exclusive right to designate the child’s primary residence.  The order stated the father had failed to appear at trial and defaulted.  He was appointed possessory conservator.

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There is a presumption that property possessed by a spouse during or on Texas marital dissolution is community property. A party claiming separate property must prove its separate character by clear and convincing evidence.  Tex. Fam. Code § 3.003.  In a recent case a wife appealed the trial court’s characterization of stock shares granted to the husband by his employer.

Stock Shares

According to the appeals court’s opinion, the parties got married in December 2006.  The husband started a new job in February 2015 and the next year received a million shares of the company’s stock.  The husband stated he had entered into an agreement with the company when he received the stock, but could not find it and could not get a copy from the company. The stock certificates did not indicate why they were issued.

The husband’s employment contract provided that he would receive an annual salary of $100,000.  Additionally, he would receive a signing fee, an additional payment upon the next fundraising event, and an annual payment for four years, as compensation for “assets, access to ‘[husband’s] IP,’ and inventory” the husband provided pursuant to the employment agreement.  The company also agreed to take on certain debts and liabilities the husband owed.  The contract indicated the husband would receive “a total compensation of over $750,000” for the use of the husband’s assets and intellectual property, without referencing the stock shares.

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Generally, a parent seeking modification of a Texas custody order must show that there has been a material and substantial change in circumstances and that the modification is in the child’s best interest. The determination of whether there has been a material and substantial change of circumstances is fact specific.  By way of example, a material and substantial change in circumstances may include a parent’s remarriage or, when there is a request for a change in child support, a change in income. A father recently appealed a modification order that permitted the mother to relocate with the children.

The parties’ agreed divorce decree named the parties joint managing conservators and granted the mother the right to designate the children’s primary residence. Subsequently, the mother petitioned for modification in 2022 because she wanted to move to Maine with the children.  Following trial, the trial court granted the modification. Specifically the trial court ordered modified the children’s geographic restriction to include Maine, modified the father’s possession and access, and awarded the mother child support.

The father appealed, arguing that the trial court abused its discretion because there had been no substantial or material change in the parties’ or children’s circumstances, and that the move was not in the best interest of the children.

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Sometimes after agreeing to mediate or arbitrate future controversies at the time of a Texas divorce, one party may not want to follow through on that agreement when a controversy actually arises.  In other cases, the parties may disagree on whether the alternative dispute resolution provision applies to a particular claim or controversy.  In such circumstances, the party seeking arbitration may move to compel arbitration.  That party must show that there is a valid arbitration agreement and that the dispute is within the scope of the agreement.

Arbitration Provision

In a recent case, a father appealed the trial court’s denial of his motion to compel arbitration.  According to the appeals court’s opinion, the final divorce decree included an alternative dispute resolution provision.  The provision provided the parties shall mediate the controversy in good faith before setting a hearing or initiating discovery in a suit to modify the terms and conditions of conservatorship, possession, or child support, except in case of an emergency.  The provision specified it did not apply to enforcement actions.  It required a party seeking modification to give the other party written notice of the desire to mediate.  If the parties do not agree on a mediator within 10 days or the other party does not agree to or fails to attend mediation, the party seeking modification is relieved of the obligation to mediate.  The provision further provides that if a controversy could not be settled by mediation, the parties agreed to submit it to binding arbitration with a specified arbitrator.

In the fall of 2021, the father started trying to negotiate custody matters.  In July 2022, the mother’s attorney sent an email to the father’s attorney stating modifications did not need to be arbitrated. The father’s efforts to negotiate or mediate failed, and he sent an email demanding arbitration at the beginning of August.

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A Texas divorce decree that is final and unambiguous and addresses all of the marital property may not be re-litigated.  The court may, however, enforce the property division or enter a clarifying order if the decree is ambiguous.  The trial court may not, however, amend, modify or change the substantive property division once its plenary power has expired. A husband recently challenged an enforcement/clarification order requiring him to sign certain documents and extending the time the wife had to refinance the home.

According to the appeals court’s opinion, the parties got divorced in August 2021.  Pursuant to the agreed judgment, the wife was awarded the marital home, contingent on refinancing.    She was required to pay the husband $75,000 within 15 days of refinancing the note.  If she failed to refinance by February 1, 2022, then the home was to be listed with a real estate broker with experience in the area and sold at a mutually agreed-upon priced.  The wife would keep 52% of the net proceeds and the husband would get the other 48%.

The wife was ordered to execute a deed of trust to secure owelty of partition and a lien note.  The husband was ordered to execute a warranty deed.  These documents were to be signed by 5:00 p.m. on the date the trial court signed the agreed divorce decree.

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When parties to a Texas divorce can reach an agreement on property division or other issues, they may be able to resolve their case more efficiently and with less hostility than can occur with prolonged litigation.  In some cases, however, a party may learn information after initially agreeing to a division that that changes their position.  When parties consent to an agreed judgment, their consent must exist when the court renders the judgment.  They are able to revoke consent until the judgment is rendered.  An agreed judgment cannot be rendered if a party has withdrawn consent.  In a recent case, a husband appealed an “agreed” judgment, arguing he had withdrawn his consent before the court rendered the judgment.

According to the opinion of the appeals court, the parties got married in 2005.  The wife filed for divorce in early August 2022.  She expressed a belief the parties would reach an agreement on the property division, but asked for a just and right division if they did not do so. A couple of months later, she filed an affidavit stating she and the husband had entered an agreement for division of the debts and property.  She further stated she had submitted an agreed decree that had been signed by both parties and contained the agreement.  She asked the court to approve the agreement.

The husband filed a counterpetition, alleging the wife had breached her fiduciary duty and committed constructive fraud, waste, and conversion.  He alleged she conveyed more than her own share of the community estate to enrich herself and defraud him.  He alleged damages of about $100,000.  He asked the court to set aside the transfer and award him damages.

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A court’s division of property in a Texas divorce must be just and right.  A just and right division does not have to be equal and may be disproportionate in some circumstances, including fault such as adultery or cruelty.  A wife recently challenged a property division in which the trial court did not award her a disproportionate share of the community estate in light of her allegations of adultery and cruelty.

Alleged Cruelty and Infidelity

The wife testified the husband had multiple affairs during the marriage, according to the appeals court’s opinion.  She also testified he had physically abused her.  She said he had beaten her after she had surgery, resulting in her stitches breaking open.  She further testified that he started hitting her again when she came home from the doctor and she got a kitchen knife to defend herself.  She said she held the knife in front of her and “just the point of the knife” cut the husband when he got in her face, but she did not deliberately stab him.  She testified the injury only needed a bandage, but the husband went to the doctor so he could later use it against her.

She testified she did not have any documentation of the husband’s alleged affairs.  She also did not offer any documentation of her alleged injuries.

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