Francesca Blackard, Author at Texas Divorce Attorney Blog

Texas Court May Not Make Substantive Change When Clarifying a Custody Order

Published on: August 7, 2019 | by Francesca Blackard

Most Texas custody cases are between a child’s parents, but in some cases other family members may be involved. In a recent case, an uncle challenged a modification of the access and possession terms of a court order related to his brother’s child. Although the trial court expressed an intention to clarify the original order, the appeals court found it had improperly made a substantive change.

The child’s father is deceased. In 2016, the father’s brother filed suit to be named as the child’s primary conservator. The uncle and the mother ultimately reached an agreement, which was incorporated by the court’s order. The order gave primary possession to the uncle and periodic possession to the mother. The uncle had the right to request the mother undergo drug testing once a month. She was required to appear for drug testing at a designated location within 24 hours of the uncle sending notice. The uncle was prohibited from sending notice Friday through Sunday at 9:00 a.m. If the mother failed to appear within 24 hours, the results would be deemed positive. If the drug test results were positive or deemed positive, the mother’s periods of possession would be suspended until there was a further court order.

The mother moved to enforce the order a month after it was entered. She alleged the uncle did not make the child available to her during her time. She sought criminal and civil contempt, additional periods of possession, and attorney’s fees. She also asked the court to clarify the original order if it found any part of it was insufficiently specific to be enforced through contempt.

Texas Court May Not Ignore Stipulations in Property Division in a Divorce Case

Published on: July 17, 2019 | by Francesca Blackard

Generally, a trial court in a Texas divorce case has the discretion to divide marital assets. A trial court can, however, abuse its discretion if it divides property without reference to guiding rules or principles and without evidence to support the ruling. An appeals court recently found that a trial court abused its discretion by mischaracterizing separate property as community property and improperly divesting the husband of his separate property.

Both parties had been married previously, and both asserted throughout the trial that they had separate property. They each pled and testified that they had separate property and submitted documentation showing they had separate property. Additionally, each submitted sworn inventories and filed proposed property divisions admitting the other party had separate property. Neither party ever disputed or contested the other’s claims. There were only two disputed issues before the court at the time of the trial: how to divide the wife’s retirement account and whether there were any reimbursement claims against the separate property.

The trial court, however, issued a letter ruling dividing all of the assets as though they were community property, despite the various agreements, stipulations, and uncontested submissions. The husband moved for reconsideration, and the wife filed a short response in opposition. The appeals court noted she had received the majority of the husband’s separate property under the letter ruling.

Same-Sex Custody Disputes in Texas

Published on: July 3, 2019 | by Francesca Blackard

Although the U.S. Supreme Court required states to recognize same-sex marriages in Obergefell v. Hodges in 2015, the case left many issues related to such marriages unresolved. Many of the laws already in place regarding marriage will apply to all marriages, but there are still a number of gray areas around same-sex marriage and divorce.

Custody and child visitation can be more complicated for same-sex couples. In cases in which each parent is either a biological or adoptive parent of the child, issues related to the child should be handled in accordance with Texas family law in the same way they would for opposite-sex parents. Generally, that means there is a presumption that both parents will be named joint-managing conservators and share the rights and duties of parents. The law requires the court’s primary focus to be on the best interests of the child in determining issues related to custody or visitation.

In many cases, however, the familial relationship between a same-sex couple and their children is not as clearly defined from a legal perspective. In some cases, only one parent may be the biological parent, or only one parent may have formally adopted the child. Prior to the recognition of same-sex marriages, the adoption of a child by a same-sex couple was a drawn-out process that did not allow the couple to adopt the child together. While some couples solidified the legal relationship of the second parent in these situations through adoption, other couples may have chosen not to do so for a variety of reasons.

Texas Child Support Based on Earning Potential when Parent is Underemployed

Published on: July 3, 2019 | by Francesca Blackard

Parents have a duty to support their minor children and generally cannot avoid that duty through intentional unemployment or underemployment. If a Texas divorce court finds a parent is intentionally unemployed or underemployed, it may consider that party’s earning potential instead of his or her actual income in determining child support.

A mother recently appealed a trial court’s finding that she was intentionally underemployed. The parents reached a mediated settlement agreement on all issues except child support. After a bench trial, the court ordered the father to pay child support for five months. There were some circumstances under which the child support could end earlier, and after the five months passed, there was to be no child support paid by either parent.

The court provided the reasons it varied from the guidelines in its findings of fact. It found the parties had agreed to having the children for equal amounts of time. The father had been found to be disabled. He received disability income, and his health issues prevented him from earning additional income. The mother had two degrees and could work as a licensed school teacher. She had not presented evidence of disability nor a physical handicap that would keep her from earning additional income. The mother had been awarded the marital residence and newer vehicle. The father had to seek new housing to get equal visitation with the children as well as obtain another vehicle. The trial court found the mother was underemployed and could have resources comparable to those of the father.

Texas Court Finds Payment of Personal Expenses By LLC Constituted Constructive Fraud in Divorce Case

Published on: May 16, 2019 | by Francesca Blackard

Property owned by a limited liability company belongs to the company and is generally not considered either separate or community property subject to distribution in a Texas divorce case. The limited liability company’s owners, known as “members,” do have an ownership, or “membership” interest in the company. That membership interest can be classified as separate or community property and distributed in a divorce. Additionally, distributions made from the company are community property, even if only one spouse is a member.

A husband recently challenged a finding of constructive fraud and order for reimbursement based on expenditures by and loans to his limited liability company (LLC). He was the LLC’s sole member before and during the marriage. The trial court granted the wife’s constructive-fraud claim and ordered reconstitution of the community estate. The court also characterized the LLC as the husband’s separate property and reimbursed the community estate for loans made to the LLC.

The husband appealed, challenging the trial court’s findings and conclusions regarding the constructive-fraud and reimbursement claims.

Texas Divorce Court May Correct Clerical Error with Judgment Nunc Pro Tunc

Published on: April 5, 2019 | by Francesca Blackard

Sometimes courts make mistakes. When a Texas divorce court makes a clerical error, the court has the power to correct that error for a period of time, generally within 30 days. If the error is not corrected before the court’s plenary power to correct has expired, it may still be corrected by a judgment nunc pro tunc. The court may only correct a clerical error through a judgment nunc pro tunc and cannot use a judgment nunc pro tunc to correct a judicial error.

A husband recently challenged a judgment nunc pro tunc on the grounds that the alleged error in the original judgment was not a clerical error. The parties had each signed the decree and approved it in form and substance, but the wife’s attorney approved it as to form only. The divorce court and all parties also signed another document, the Qualified Domestic Relations Order (QDRO), that awarded 35 percent of the husband’s military retirement pay to the wife. The divorce decree did not reflect this award.

The husband petitioned the court to amend the QDRO to match the decree, arguing the QDRO was an impermissible modification of the property division. The wife argued its omission was a clerical error in the divorce decree and that the decree was ambiguous. The husband argued the divorce court did not have subject matter jurisdiction to modify the decree.

Texas Appeals Court Overturns Conspiracy Claim Against Grandmother in Custody Case

Published on: March 13, 2019 | by Francesca Blackard

The dispute in a Texas custody case is usually between the child’s parents. In some cases, however, other parties may become involved. In one recent case, the father’s parents got so involved, they intervened in the custody case and the mother filed claims against them.

In 2015, the trial court appointed the mother and father joint managing conservators of their daughter. The father was given the exclusive right to determine her primary residence. The daughter primarily lived with her father’s parents and went to school in Santa Fe. The mother lived in Houston.

The mother moved to modify the order after learning the father had been arrested. She sought the exclusive right to designate the daughter’s primary residence and requested that the father be denied access or have his visits supervised.

Texas Appeals Court Upholds Finding of No Informal Marriage

Published on: February 18, 2019 | by Francesca Blackard

Usually, in a Texas divorce case, both parties know and agree that they were married. In some cases, however, the parties may disagree as to whether there has been an informal marriage. An informal marriage can be proven by showing that the couple agreed to be married, subsequently lived together in Texas as spouses, and represented themselves as married. TEX. FAM. CODE ANN. § 2.401. Texas courts have held that evidence that the parties held themselves out as married must be particularly convincing and be more than occasional references to each other as husband or wife.

A mother recently challenged a court’s finding that she had not been informally married to the father of her children. The couple had two children together, one who was six and the other who was 21. The mother petitioned for divorce, arguing that she and the father married on or about 1996. In his answer, the father stated there was no existing marriage.

At the hearing, the mother testified that she believed she and the father had agreed to be informally married when they moved in together. She said the father introduced her to his friends and family as his wife. She admitted, however, that she always filed her taxes as single. She also conceded that her name was not on the deed to the house, and it instead named the father and his father as the owners.

Texas Appeals Court Reverses Child Support in Excess of Statutory Guidelines

Published on: January 28, 2019 | by Francesca Blackard

After a court issues a Texas child support order based on an agreement of the parties, the trial court may only modify the order if there has been a material and substantial change in circumstances. If there has been such a change, the court has the discretion to modify the order. The court’s analysis depends on the resources of the obligor. If the parent paying child support has net monthly resources equal to or less than an identified amount, currently $8,550, the court must base the presumptive award on a percentage of the net resources and the number of children. If the net monthly resources are greater than this amount, then the court has the discretion to order amounts greater than the presumptive award, depending on the parties’ income and the “proven needs” of the children. Thus, the court must determine the proven needs of the children before awarding an amount greater than that set by the guidelines. If the children’s needs exceed the presumptive award, the court allocates the difference between the parties. No party can be required to pay more than 100% of the proven needs of the children. Unfortunately, neither the legislature nor the courts have clearly defined “needs,” but the Texas Supreme Court has stated that needs are not determined by the family’s lifestyle or the parents’ ability to pay.

In a recent case, a father challenged a modification that ordered him to pay an amount greater than the monthly guidelines.

The father also challenged whether there was a material and substantial change in circumstances, but the appeals court readily found that a significant increase in the father’s income since the Agreed Order was sufficient to support a modification.

Texas Appeals Court Reverses Property Division Due to Lack of Evidence

Published on: January 7, 2019 | by Francesca Blackard

Property division in a Texas divorce must be just and right. The property division may be “just and right” in a case where one party does not participate, but the court must have sufficient information to use its discretion in dividing the property fairly. A spouse recently challenged the property division following a proceeding in which he did not participate.

One spouse petitioned for divorce in July 2017, alleging insupportability, which is the “no fault” ground for divorce in Texas. He alleged, however, that the respondent had committed fraud on the estate and asked the court to reconstitute the community estate. He also asked the court to confirm certain property as his separate property.

He claimed the respondent was a nonresident of Texas, but the marital residence had most recently been in Texas and he had filed the petition within two years of the date the marital residence ended (which would allow for Texas to have personal jurisdiction over the nonresident respondent). The process server swore in an affidavit that the respondent had been served with the petition in Miami, Florida.