Francesca Blackard, Author at Texas Divorce Attorney Blog

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.

Texas Court Finds Father Underemployed and Orders Retroactive Support

Published on: December 14, 2018 | by Francesca Blackard

In some Texas child support cases, the court may find a party to be “intentionally underemployed.” Although child support is generally based on the party’s income and resources, the calculation may be based on earning capacity if the party is found to be intentionally underemployed or unemployed.

A father recently challenged a child support obligation in which he was found to be intentionally underemployed. The father had petitioned for the bill of review on the grounds the child support determination had been based on an IRS tax-lien notice that contained incorrect information. He alleged he had amended his earnings information with the IRS and asked the court to order a reasonable amount based on his true earnings. The trial court declared the child-support portion of the divorce decree void, reopened the issue of child support, and ultimately issued a new order.

After the court declared the child support void, the father filed an amended counter-petition, but did not allege any of the children had been emancipated or request a credit for amounts already paid. The mother did not file an amended pleading.

Texas Court Erred in Dismissing Motion for Clarifying Order in Custody Case

Published on: November 28, 2018 | by Francesca Blackard

A parent can seek enforcement of the custody provisions of a court order through contempt of court. Texas custody attorneys know, however, that contempt is only available if the original order is clear and specific enough to allow the other person to readily know what duties or obligations are expected of him or her.

In a recent case, a father sought contempt against his child’s mother. The father moved for enforcement of possession or access to his child. He asked that the court hold the child’s mother in contempt for violating his visitation rights in the divorce decree. In the alternative, he requested that the court issue a clarifying order if it found the previous order was not specific enough to enforce through contempt. The mother moved to dismiss the motion. The trial court granted the mother’s oral motion for dismissal of the father’s motion and the father appealed.

The appeals court noted that the trial court’s refusal to hold the mother in contempt was not appealable, but the dismissal of the father’s request for clarification was.

Findings of Fact and Waiver in Texas Divorce

Published on: October 27, 2018 | by Francesca Blackard

In a Texas divorce case, failure to follow the required procedures can result in the loss of property. Parties should take care to identify all of the property that needs to be divided. Additionally, if the court fails to address certain property in its findings, then the party must follow the appropriate procedures or may risk waiving that issue, as occurred in a recent case.

The parties married in 2007 and the husband filed for divorce in 2014. He had been in the dairy business for many years and owned several properties at the time of the marriage. The dairy sold milk and the court entered a temporary order granting the wife the proceeds from the “milk store” instead of spousal support. She received a total of about $27,000 while the divorce was pending. The wife agreed the husband bought some of the properties, including the dairy, before the marriage.

The wife appealed the property division. She sought reimbursement for half of the value of taxes the community estate allegedly paid for the husband’s separate property during the marriage, the value of loans allegedly paid by the community to acquire goods and improvements for the dairy during the marriage, and the value of her separate property 401k used to improve the dairy.

Texas Court Finds Spousal Maintenance Can’t Be Terminated through Collateral Attack

Published on: October 5, 2018 | by Francesca Blackard

Chapter 8 of the Texas Family Code sets forth the circumstances under which a court in a Texas divorce case may order spousal maintenance. Pursuant to section 8.051, the court may order maintenance if the spouse requesting it lacks sufficient property to provide for his or her minimum needs and meets one of the other enumerated conditions, related to family violence, disability, marriage lasting at least 10 years, or a disabled child. If a party disagrees with a maintenance obligation, it is best to challenge it immediately. A Texas appeals court recently considered whether a trial court appropriately terminated a maintenance obligation the husband challenged in response to the wife’s enforcement petition rather than through a direct appeal.

According to the appeals court opinion, the couple divorced in 2014 and stipulated in an agreed divorce decree that the wife was eligible for maintenance under chapter 8 of the Family Code. The trial court ordered the husband to pay spousal maintenance until either party’s death, the wife’s remarriage, or further orders of the court. The husband was to provide his payroll statement to the wife on request.

Nearly three years later, the wife petitioned for enforcement of the maintenance. She argued the husband had refused to provide his payroll statement. She asked the court to enter a clarifying order if it found any part of the decree to be insufficiently specific to be enforced.

Texas Custody Modification and Best Interest of the Child

Published on: September 20, 2018 | by Francesca Blackard

In Texas custody cases, the best interest of the child is to be the primary consideration. In Texas, courts may consider a variety of factors in determining what is in the child’s best interest. These factors include the child’s desires, the child’s current and future physical and emotional needs, any current or future physical or emotional danger to the child, parental abilities of those seeking custody, the programs available to each party, each party’s plans for the child, the stability of the home, any acts or omissions of the parent that could indicate the relationship with the child is not proper, and any excuse for those acts or omissions. The court is not limited to these factors, nor does it have to consider all of them.

In a recent case, a father challenged a court’s finding that granting the mother the right to determine the children’s primary residence was in the children’s best interest. The parents’ relationship ended shortly after their twin sons were born in 2011. The trial court originally appointed the parents joint managing conservators and gave the mother the exclusive right to designate the children’s primary residence. A modification in 2014 gave the father the exclusive right to determine primary residence and allowed the mother access to the children under a schedule. Pursuant to the order, the mother had the option to pick up the children on evenings the father was scheduled to work later than 10 pm.

The mother petitioned for the right to determine the primary residence in 2016. She testified the father had his sister take care of the children when he was not available and prevented her from accessing them. She testified she thought the children lived with their father’s sister. She argued she could provide them more structure and stability than their father could.

Attorney’s Fees Awarded in Texas Child Support Enforcement

Published on: September 7, 2018 | by Francesca Blackard

Enforcing a child support order against a person who fails or refuses to pay can become time-consuming and expensive. Texas family law provides multiple options for enforcing a child support order. It also allows a person enforcing a child support order to recover reasonable attorney’s fees and costs if the court finds the other party “failed to make child support payments.” TEX. FAM. CODE § 157.167(a).

When a child support payment is not timely made, it becomes a final judgment by operation of law. TEX. FAM. CODE § 157.261(a) In a recent case, the mother sought a writ of execution on the final judgment that arose as a result of the father’s failure to pay the child support. The trial court found she had “a valid enforceable judgment” that was “wholly unsatisfied and subject to execution.” The constable took possession of certain of the father’s property and held an execution sale. Both the mother and father sought disbursement of the proceeds of the sale.

There was additional litigation related to the mother’s collection efforts. The trial court ultimately ordered the father to pay $30,675 to the mother for attorney’s fees. The trial court based the attorney’s fees on the attorney’s affidavit and timesheet. The father appealed.