FAMILY LAW

WINTER 2009-2010

In re J.O.A., 283 S.W.3d 336 (Tex. 2009)

Parental Termination and Post-trial Procedure; Ineffective Counsel: Following a parental rights termination trial, the party seeking appeal had only 15 days after a judgment was signed to request a new trial or to file a statement of points for appeal. See Texas Family Code §263.405(b). §263.405(i) precluded raising an issue in the appellate court that was not specifically presented to the trial court in the points for appeal. The parents whose rights were terminated failed to file the required statement of points within the time required by the statute. The parents were indigent and thus entitled to appointed trial counsel as well as appellate counsel. Five days after the trial court entered judgment against the parents, the respective trial counsel for each of them filed notices of appeal and additionally moved to withdraw. The trial court never ruled on the withdrawal motions, although it did appoint new counsel for the parents’ appeals, but not before the 15-day deadline for filing the statement of points for appeal. Moreover, neither of the trial counsel ever filed a statement of points. Consequently, when on appeal the parents raised an ineffective assistance of counsel claim as well as challenged the sufficiency of the evidence and the constitutionality of §263.405. The Department of Family Protective Services argued that the appellate court could not consider their claims. The appellate court nonetheless did review the case, concluding that both Mom’s and Dad’s attorneys were ineffective for failing to file the statement of points, but that the failure deprived only the Dad of due process. The appellate court concluded that the evidence was both factually and legally insufficient to support termination of the Dad’s parental rights. On the other hand, the appellate court held that there was sufficient evidence to support termination of the Mom’s rights, and she did not appeal that holding.

Held: The Supreme Court agreed that the appellate court acted properly in considering the Dad’s claim of ineffective assistance of counsel. The Department did not specifically address the Dad’s constitutional challenge. Rather, it argued that the right to appeal was a statutory right that could be denied entirely should the legislature choose to do so. The Department further had the audacity to argue that while indigent individuals were entitled to appointed counsel, those counsel need not be competent, notwithstanding the court’s opinion in In re M.S., 115.S.W.3d 534, 544 (Tex. 2003), which directly conflicted with the Department’s argument. In fact, in In re M.S., the lawyer’s failure to preserve factual sufficiency claims was characterized as ineffective assistance of counsel. That was essentially what occurred in this case: the trial counsel failed to preserve the sufficiency of evidence claims by filing the statement of points. The Texas Supreme Court cautioned that not every failure to preserve sufficiency issues was automatically grounds for finding ineffective assistance of counsel. In this case, however, the failure was neither strategic nor a concession of lack of merit, and during the critical period, trial counsel had not yet been relieved of their duty of representation by either the court’s ruling on their motion to withdraw or by appointment of appellate counsel. According to the Court, “Trial counsel’s failure to follow through with his representation until relieved of that duty was tantamount to abandoning his client at a critical stage of the proceeding.” The Court thus held that Dad’s claim of ineffective counsel raised due process claims, and to the extent §263.405 would prevent a court from considering that claim, it was unconstitutional.

Establishing ineffective assistance of counsel was only the first step, however. An appellant must further show that his lawyer’s deficient representation prejudiced his rights and were so serious as to deprive the appellant of a fair trial. The appellate court concluded that had trial counsel preserved error by filing the statement of points, it would have reversed on the grounds that the evidence was both legally and factually insufficient to support termination of the Dad’s parental rights. The Court disagreed with the appellate court regarding the legal sufficiency of the evidence. However, it remanded the case based on factual insufficiency because only the appellate court was authorized to consider those insufficiency claims. As such, remand for a new trial, based on the appellate court’s holding that the evidence was factually insufficient was appropriate. The Court, for good measure, also threw in some words of advice for trial courts in parental rights termination cases, urging them to take a proactive approach to avoid indigent parents inadvertently waiving their rights under the accelerated process set out in §236.405. Note: Justice Willett, who concurred in the opinion, wrote separately to emphasize specifically what trial courts must do to avoid a concern raised by the Department, that is, that calculating trial counsel might deliberately fail to file the statement of points to give their clients an advantage on appeal. He suggested that trial judges be more proactive in informing the parties and their attorneys of the steps that must be taken to preserve their appeal; reminding trial counsel that their duties do not end with the trial; and referring such cases for disciplinary action. Kudos to Judge Willett for the reference to poet Robert Browning.

In the Interest of M.V.G., 285 S.W.3d 573 (Tex.App.–Waco 2009)

Parental Termination – Withdrawal of Counsel: Following the trial court’s termination of a mother’s parental rights, the trial court appointed new counsel to handle the appeal. Consequently, Mother’s appointed trial counsel moved to withdraw. However, Mother’s appeal had been perfected by the time her trial counsel moved to withdraw. Therefore, the trial counsel’s withdrawal motion was addressed to the appellate court. The appellate court, however, concluded that the trial court should rule on the withdrawal motion, relying on Enriquez v. State, 999 S.W.2d 906 (Tex.App.–Waco 1999), in which a similar issue arose in a criminal case. In Enriquez, the court reasoned that relevant statute provided for the trial court to appoint counsel to represent indigent defendants and to relieve appointed counsel of their duties. In Enriquez, the court also noted that appointed counsel were paid from the prosecuting county’s general funds. As such, the trial court should make all rulings regarding appointed counsel. The court adopted the same reasoning in deciding this issue in the parental rights termination context. The court noted, however, that in this context, it had an issue that it did not face in the criminal context, namely that it appeared that the trial court’s plenary jurisdiction expired by the 36th day following judgment in a parental rights termination case, pursuant to Texas Family Code §263.405. In this case, the trial court’s plenary power had expired, but to permit the trial court to consider the withdrawal motion, the appellate court opted to abate its appeal. Note: Justice Gray dissented from what he characterized as the appellate court rewriting the law, but he did not write a dissenting opinion. Rather there was only a cryptic footnote following his noted dissent.

In re Tieri, 283 S.W.3d 889 (Tex.App.–Tyler 2008)

Jurisdiction Regarding Conservatorship Orders: The opinion in this case, which implicated the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), set out the full chronology of the various pleadings, orders, and interstate moves by the parties and their children. The short version was that Mom, Dad, and the children initially all resided in New Jersey until Mom and the children moved to Texas in January 2006. In March 2006, Dad filed for divorce in New Jersey, and that court entered a temporary order giving Dad custody of the children in April 2006. Several weeks later, the New Jersey court appointed Dad as the primary custodian of the children. Although the children were living in Texas when Dad filed the New Jersey divorce petition, New Jersey would have had jurisdiction to enter an initial custody and visitation order under the UCCJEA, which both Texas and New Jersey have adopted, based on extended home state jurisdiction inasmuch as New Jersey had been the children’s home state, six months had not yet passed since the children last resided in New Jersey, and Dad still resided there. See Texas Family Code §152.201 for the Texas equivalent. Less than a week after the custody order, Mom and Dad agreed to dismiss their divorce case in New Jersey due to their reconciliation. The family moved to Texas the next day. Their reconciliation was short-lived, however. In August 2006, Dad returned to New Jersey and Mom filed her divorce proceeding in Texas. In connection with the divorce petition, she also filed a Suit Affecting the Parent-Child Relationship (SAPCR) in which she sought to be appointed the sole managing conservator. Dad challenged the Texas court’s jurisdiction regarding the children, and the Texas district court held a hearing to decide the issue. Mom testified that she and the children moved to Texas in January 2006. She also testified that she and the children lived in Chicago for a week in March 2006 and lived in New Jersey approximately three weeks in April 2006, until they returned to Texas on April 29, 2006.

The Texas court concluded that it had jurisdiction to decide the conservatorship issues based on the children having resided in Texas seven months, measured from January 2006 until August 2006 when Mom filed her divorce petition and SAPCR. To its credit, the trial court consulted with both parents’ Texas and New Jersey lawyers as well as with the New Jersey court before reaching its conclusion. The New Jersey court seemed willing to defer to the Texas court’s determination, notwithstanding Dad having reopened the divorce case he had previously filed. The New Jersey court granted Dad’s divorce, but stayed any determination of the jurisdictional issue related to custody of the children. Following the Texas court’s conclusion that it had jurisdiction, Dad sought mandamus relief, claiming that the Texas court abused its authority in claiming jurisdiction. The appellate court agreed, based on the UCCJEA.

It is not clear whether the Texas court considered whether it was entering an initial order or modifying an existing order. If a court was to enter the initial order, it needed to consider whether it had jurisdiction based on any of the four grounds listed in Texas Family Code §152.202. On the other hand, if the court was called on to modify an existing order, it could do so only if it had exclusive continuing jurisdiction (ECJ) or the court that had ECJ had lost it and the new court had a jurisdictional basis under §152.202. A court acquired ECJ by entering an order of custody or visitation when it had jurisdiction. Prior to Mom and Dad’s reconciliation attempt, the New Jersey court had appointed Dad the primary custodian, giving that court ECJ. According to the appellate court, the dismissal of the divorce decree did not affect the New Jersey court’s ECJ. The UCCJEA did not require that the divorce be ongoing for the court’s ECJ to exist. Consequently, only the New Jersey court could modify its order unless that court had lost ECJ. Because in August 2006, when Mom filed her petition in Texas, Dad was living in New Jersey, only the New Jersey court could determine that it had lost ECJ because neither the children nor the children and a parent had a significant connection with New Jersey and substantial evidence regarding the children was no longer available there. The New Jersey court never made such a determination. Rather, the New Jersey court only refused to act unless and until the Texas court relinquished jurisdiction. As such, the New Jersey court had not made the necessary finding that would result in its loss of ECJ. Moreover, Texas would not have had jurisdiction to enter an initial order, at least not based on home state jurisdiction. Although the children had resided mostly in Texas over a period of seven months with the exception of the four weeks they spent living in Chicago and New Jersey, the UCCJEA required six consecutive months of residency in the state to qualify it as a child’s home state. Temporary absences of the parent do not affect the determination, but here, of course, the children were the ones who Mom would have had to acknowledge were temporarily living outside of Texas. See Texas Family Code §152.102(7). It is possible that if Texas had been called on to enter an initial custody order, it might have had jurisdiction based on the children having no other home state, but having a significant connection to Texas. See Texas Family Code §152.201(a)(2). Ultimately, however, the appellate court directed the trial court to dismiss the SAPCR or face a writ of mandamus.

Note: The UCCJEA was designed to avoid the situation where two courts claim jurisdiction to enter a custody or visitation order. In this case, neither court seemed particularly intent on wresting jurisdiction from the other court. Rather, they seem to have settled which court should have jurisdiction, at least at the outset. However, the appellate court made clear that the courts must comply with the provisions of the UCCJEA; they cannot simply agree about jurisdiction if their agreement was inconsistent with the UCCJEA. The New Jersey court could very well decline to exercise jurisdiction on the grounds that it was an inconvenient forum and that Texas was a more appropriate forum. See Texas Family Code §152.207 for the Texas provision. The court, however, could not simply omit this step.

In re J.W.L., 291 S.W.3d 79 (Tex.App.–Fort Worth 2009)

Grandparents’ Rights: This case pits the grandparents of M.W.L. against her father, J.W.L., following the death of M.W.L.’s mother. When M.W.L.’s parents divorced, they agreed that both parents would be appointed joint managing conservators, but that Mom would have the exclusive right to designate the primary residence of M.W.L. Subsequently, Mom was diagnosed with terminal cancer, and due to her impending death, she, along with her parents (M.W.L.’s grandparents), sought to modify the original order to have the grandparents appointed joint managing conservators with the right to designate the primary residence upon Mom’s death. In that petition, the grandparents claimed to have standing based on their having had actual care, control and possession of the child for at least six months. See Texas Family Code §102.003(a)(9). Mom died a week after the petition to modify was filed, but prior the trial court’s hearing on the modification issue. The court did hold a hearing. Ultimately, however, the parties reached an agreement whereby Dad would have primary custody of M.W.L. with no geographic limitation on his right to designate M.W.L.’s primary residence. The grandparents were named possessory conservators. They would have visitation with M.W.L. on a schedule set out in their agreement. The parties’ agreement also required each party to give at least 60 days advance notice of a change of address. Consequently, the court entered an agreed order to that effect. The Agreed Order specifically stated that the trial court had made certain rulings regarding standing of the parties. Trouble began when the grandparents appeared for a schedule visit with M.W.L. only to find that the house where she had been living with her Dad abandoned, although Dad had not given notice of an address change as required by the Agreed Order. Despite an attempt by Dad to mislead the grandparents about his and M.W.L.’s whereabouts, the grandparents located M.W.L. in Idaho. The grandparents were able to obtain habeas corpus relief which allowed them to return M.W.L. to Texas for an emergency hearing to enforce the Agreed Order. Following a hearing on the matter, the trial court entered a temporary order giving the grandparents temporary custody of M.W.L. and limiting Dad’s access to her to only supervised visits. Dad sought mandamus relief as a result, alleging that the grandparents did not have standing at the time of the Agreed Order and as such the trial court abused its discretion in approving the Agreed Order.

Held: The appellate court properly characterized Dad’s mandamus petition as a collateral attack on the Agreed Order, thus raising a question of the validity of that order. The appellate court found that the Agreed Order was in fact valid. While there was no evidence in the record to support the grandparents’ claim of actual care, control and possession of the child for the minimum six months, the court held that the grandparents had standing based on the consent of a managing conservator. See Texas Family Code §102.004(a)(2). The court concluded that M.W.L.’s mom, the primary joint managing conservator at the time, had in fact consented to the grandparents’ standing when she joined with them in filing the petition to modify. Thus the Agreed Order was valid, and the trial court did not abuse its discretion. Justice Cayce filed a concurring opinion in which he cautioned the trial court about its temporary order that severely limited Dad’s access to M.W.L. Citing Troxel v. Granville, 530 U.S. 57 (2000), Justice Cayce noted that a fit parent was presumed to act in the best interest of his child. Arguably, Dad acted wrongly in moving without giving the grandparents notice and trying to conceal his whereabouts, but there was little more than nonspecific claims that he was otherwise unfit. As such, Justice Cayce characterized the trial court’s temporary orders as treating the grandparents’ right to visitation as paramount to Dad’s constitutional rights as a parent.

In re S.B.S., 282 S.W.3d 711 (Tex.App.–Amarillo 2009)

Child Support: The reversible error in this case could have been easily avoided by simply reading and complying strictly with the applicable Family Code provision. The court entered a child support order that varied from the amount that would have been payable under the Child Support Guidelines. §154.130 required the court to make specific findings when it deviated from the Guidelines, including findings about the net monthly resources of the obligor and obligee, the percentage applied by the court to the obligor’s net resources to yield the child support ordered by the court, and the specific reasons why the court deviated from the Guidelines. While the court specifically stated that the amount varied from guidelines, the court made none of the required findings. Held: The appellate court acknowledged that the necessary findings could be contained in a separate document contained in the record. However, the notation in the trial court’s Civil Docket supplied only one of the required findings, namely that the upward adjustment was due to the unmet needs of the child. There was no separate document that contained the other findings. Perhaps the court and the obligee assumed that the findings were unnecessary because the obligor failed to appear, and thus a default judgment was entered against him. Nonetheless, while the court found a default judgment was valid, it reversed the child support order and remanded to the trial court to make the necessary findings.

Chavez v. McNeely, 287 S.W.3d 840 (Tex.App.–Houston (1^st Dist.) 2009)

Spousal Support: There was little surprise about the outcome of this case. Because of her husband’s paralysis, Chavez, the wife in this divorcing couple, agreed to pay spousal support to her ex-husband. The contract provided that she would “provide as much toward the care and providing for the needs [McNeely] as possible, limited only by her personal financial situation.” McNeely subsequently sued Chavez for breach of contract, notwithstanding that Chavez paid the mortgage and taxes on McNeely’s house and paid what she claimed she could for McNeely’s care until her business began to fail. McNeely alleged that Chavez’s personal spending habits did not reflect a decline in her ability to pay. The trial court concluded that it had jurisdiction of the case although the divorce decree in which the parties’ agreement was included was entered by a court in another county. The trial court also found that Chavez was in breach and entered a judgment of $950,000 for a breach that had continued for several years. Held: The appellate court agreed that the trial court did have jurisdiction, having characterized the dispute as a breach of contract claim for which the trial court had jurisdiction to hear. Moreover, the appellate court concluded that Texas Family Code §§9.001 and 9.002, which addressed enforcement of the divorce decree, did not create exclusive jurisdiction in the court that issued the decree. Rather, that court’s jurisdiction to enforce its divorce decree was merely permissive. The appellate court, however, concluded that the contract was unenforceable due to indefiniteness. The court seemed to accept Chavez’s characterization that the contract was “indefiniteness cubed,” given the three sections italicized above. Chavez’s performance did nothing to clarify the provision at issue. The court thus reversed the trial court’s judgment and entered a take-nothing judgment against McNeely.

Smith v. Deneve, 285 S.W.3d 904 (Tex.App.–Dallas 2009)

Informal Marriage: Smith and Deneve cohabited some 14 years before breaking up. During their time together, they moved into a house that was titled solely in Deneve’s name. The boat they acquired was similarly titled only in Deneve’s name. When the couple separated, Smith filed for divorce, clearly in an attempt to make a claim to the property acquired during Smith’s and Deneve’s time together. Because they had never been formally married, he relied on Texas Family Code §2.401 to claim an informal marriage. Deneve moved for summary judgment on the basis that no informal marriage existed, and the trial court granted her motion. Held: The case turned on whether the couple had held themselves out as being married. There was summary judgment evidence of several contracts in which the two were listed as husband and wife. Smith further claimed in his affidavit that they introduced each other as husband and wife and neither objected when others introduced them as a married couple. The appellate court, however, found the evidence lacking. The court noted that isolated references to each other as husband and wife were insufficient. Moreover, a couple’s reputation in the community as being married is a significant factor. The court concluded that with respect to the contracts on which Smith relied, there was no evidence that Deneve caused those representations, that Deneve was aware of them, or than anyone in the community was aware of those contractual representations. As to the evidence of the introductions, there was insufficient evidence for the court to gauge whether those occurrences were rare or frequent. As such, the appellate court affirmed the trial court’s no evidence summary judgment. Smith also raised, as alternative theories, the existence of a constructive trust, the existence of a resulting trust, and the existence of a partnership or joint venture. The trial court granted summary judgment on most of these claims as well, but Smith did get some relief when the appellate court sustained his appeal with respect to the resulting trust.