Texas Divorce Attorney Blog

Texas Appeals Court Reverses Dismissal of Grandmother’s Petition for Visitation

Published on: March 20, 2024 | by Kelly McClure

Pursuant to Tex. Fam. Code § 153.432, a grandparent who meets certain requirements has standing to file suit for possession or access to their grandchild. The grandparent must sign an affidavit “on knowledge or belief” that alleges that denial of possession or access would significantly impair the physical health or emotional well-being of the child and provides supporting facts. The trial court then has to determine if those allegations would be sufficient to grant possession or access under Section 153.433. If not, the trial court must dismiss the grandparent’s suit.

Parents have a fundamental right to make decisions about their children’s care, custody, and control. The law presumes that a fit parent acts in their children’s best interest. Once the grandparent establishes standing, they must overcome the fit-parent presumption by proving denying them possession or access would significantly impair the child’s health or well-being. The grandparent must allege “specific, identifiable behavior or conduct,” such as severe neglect, physical abuse, abandonment, abuse of drugs or alcohol, or immoral behavior, that would likely cause significant impairment to the child. Rolle v. Hardy. Prior cases have held that illegal drug use by a mother during pregnancy may support a finding of significant impairment and illegal drug use after the birth may impair the ability to parent. A grandparent does not have standing just because the child wants to see them or because they would be a better custodian. A grandmother recently challenged a court order dismissing her petition for possession or access to her grandchild.

The Grandmother’s Petition

The child’s father died before the child was born. His mother then petitioned for grandparent possession of or access to the child shortly after the birth. The grandmother alleged the mother had abused drugs and alcohol while she was pregnant with the child. She claimed denying her access to the child would significantly impair his health and well-being.

Texas Appeals Court Upholds Order Making Ex-Husband Liable for Salary Payments

Published on: March 11, 2024 | by Francesca Blackard

A court may render orders to enforce or clarify the property division in a Texas divorce decree, but generally may not render an order that makes substantive changes to the property division once it is final. A former husband recently challenged a clarification order, arguing it improperly modified the decree.

Divorce Decree

According to the appeals court, the parties were married for more than 15 years when they got divorced in 2018. The agreed divorce decree referenced a “privately held compan[y]” that employed them both. The decree awarded all ownership interest in the company to the husband as separate property. It also awarded him the intellectual property he created used in connection with that ownership and the cash in two bank accounts in the company’s name beginning November 1, 2018.

Those bank accounts had been included in a list in the decree for which the husband would have the “sole right to withdraw funds” or “subject to [his] sole control[.]”

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 Cannot Consider Extrinsic Evidence in Collateral Attack on Custody Jurisdiction

Published on: February 25, 2024 | by Francesca Blackard

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified in Chapter 152 of the Texas Family Code addresses how to determine jurisdiction in custody matters involving more than one state. Generally, a Texas trial court that made a custody determination consistent with § 152.201 or 152.203 retains continuing jurisdiction until a court makes certain determinations regarding a lack of significant connection to the state or residence. Tex. Fam. Code § 152.202.

In a recent case, a mother appealed following a modification, arguing the trial court had not acquired custody jurisdiction in the original divorce case because Colorado had subject-matter jurisdiction over the children pursuant to the UCCJEA.

Procedural History

According to the appeals court’s opinion, the trial court entered an agreed final divorce decree in 2017 that named the parents joint managing conservators of their two children. The mother was awarded the exclusive right to designate the children’s primary residence until they turned twelve, with no geographic limitations.

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.

Fraud on the Community in Texas Divorce

Published on: February 10, 2024 | by Francesca Blackard

Spouses have a fiduciary duty toward each other with regard to the community estate and commit fraud on the community if they breach a legal or equitable duty in violation of the fiduciary relationship. Fraud on the community often occurs when assets are transferred to a third party, but can also occur when it is unaccounted for.

If a court determines a spouse committed fraud, it must determine the amount the community estate was depleted and the total value it would have had absent the fraud. The trial court then divides the reconstituted estate in a just and right manner, which may include awarding the other spouse a disproportionate share of the community estate, a money judgment, or both. Tex. Fam. Code § 7.009. A husband recently appealed the trial court’s finding of fraud, judgments, and property division in his Texas divorce.

The Marriage

According to the appeals court’s opinion, the husband owned a home when the parties married in 2002.

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.