FAMILY LAW
SPRING 2008
In re M.J.G., W.L. 344473; LEXIS 971 (Tex.App.—Fort Worth, 2008)
Grandparents Failed to Demonstrate Standing to Intervene in Divorce for Custody: The grandparents appealed the trial court’s denial of their petition in intervention in their daughter and son-in-law’s divorce proceedings, in which the grandparents sought custody of their grandchildren. Because the grandparents did not show that they had standing to intervene in the custody proceedings, we affirmed. Husband and wife married in 2002 and had two children The couple subsequently separated and filed for divorce in 2006. The grandparents filed a petition in intervention in the divorce proceedings, requesting the trial court to appoint them sole managing conservators of the children or, alternatively, joint managing conservators with the right to establish the children’s residence. The trial court heard the grandparents’ request for temporary orders. All parties were present at the hearing, but only the grandparents were represented by counsel. After hearing testimony from the parents, the trial court stated that he would hold the next hearing on the grandparents’ petition in ten days and that, in the interim, he would order a social study at the grandparents’ expense and enter a temporary order “naming the grandparents as the right-with the right to establish the domicile until the next hearing.... “[W]hat I’m doing basically is, after the hearing giving the parents an opportunity to get counsel.” The trial court held the next hearing on the grandparents’ petition as scheduled. At the conclusion of the hearing, the trial court orally denied the grandparents’ petition in intervention. The grandparents now appealed.
Generally, an intervenor must show standing to maintain an original suit in order to intervene. § 102.003 of the Family Code listed persons with general standing to file an original suit affecting the parent-child relationship (“SAPCR”). In addition, § 102.004 specifically provided for a grandparent’s standing to file an original suit if the child’s present circumstances would significantly impair the child’s physical health or emotional development. Finally, a grandparent who did not have standing to file an original suit may still be granted leave to intervene in a pending suit if the trial court determined that appointment of one or both parents as managing conservators would significantly impair the child’s physical health or emotional development. Id. § 102.004(b).
The Court reviewed the trial court’s determination of a party’s standing to file a SAPCR by construing the pleadings in favor of the petitioner and looking to the pleader’s intent. In their petition in intervention, the grandparents asserted that they had standing to intervene “as more fully detailed below in the petition and as set forth in Intervenors’ Supporting Affidavits .” The only statement in the petition relating to their standing to file an original suit under Family Code § 102.003 was their allegation that the parents had voluntarily relinquished possession and control of the children to them for at least one year, a portion of which was within ninety days preceding the date of the petition. A nonparent had standing to file an original suit affecting the parent-child relationship if he or she has had actual care, control, and possession of the child for at least six months ending not more than ninety days preceding the date of the filing of the petition. Tex. Fam.Code Ann. § 102.003(a)(9).
The trial court heard conflicting evidence on the issue of the parents’ alleged voluntary relinquishment of the children. Even taking as true all evidence favorable to the grandparents and indulging every reasonable inference and resolving any doubts in their favor, the Court declined to hold that the grandparents had “actual care, custody, and control” of the children under these facts. Even though the children were living in the grandparents’ home and the grandparents performed day-to-day caretaking duties for the children, the children’s parents were also living with the children in the home, and there was no evidence that the parents did not also care for the children or that the parents had abdicated their parental duties and responsibilities to the grandparents. Accordingly, the Court concluded that the grandparents did not establish the six-month period of actual care, custody, and control necessary to establish their standing to file an original SAPCR petition. Held: The grandparents did not establish general standing to institute a SAPCR involving the parents’ children, and we overrule the grandparents’ tenth point.
§ 102.004(a)(1) of the Family Code provided that a grandparent had standing to file an original suit requesting managing conservatorship if there was satisfactory proof to the court that the order requested was necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development. In their seventh point, the grandparents challenge the trial court’s conclusion of law that possession of the children by either or both parents did not place the children in danger of physical or emotional harm, immediate or otherwise, because there was evidence of the parents’ physical altercations, both with one another and others, in the presence of the children. They point to testimony that the father had abused the mother “at one point” and that she was afraid of him when the abuse first happened. However, the mother also testified that she was not afraid of the father anymore and that she had never felt that he would hurt the children or hurt her in front of the children. To the extent that the grandparents’ seventh point complained that the trial court erred by refusing to conclude that the children’s physical health or emotional development was significantly impaired by the parents’ physical altercations, the Court overruled it.
The grandparents challenge the trial court’s finding that they failed to show specific evidence that awarding custody of the children to a parent would result in serious physical or emotional harm to the children-because the grandparents claim that they proved an ongoing relationship and contact between themselves and the children. While the grandmother testified that she performed many “motherly” duties for the children, such as bathing the children, putting them to sleep, and buying them diapers and clothes, there was no testimony that the parents did not also perform “motherly” and “fatherly” duties for the children or that the grandparent/grandchild relationship was so essential to the children’s well-being that they would be physically or emotionally harmed if they did not live with the grandparents. Accordingly, the trial court did not err by refusing to conclude that the children’s physical health or emotional development was significantly impaired in their present circumstances due to their “ongoing relationship” with the grandparents. The grandparents challenged the trial court’s finding that they had failed to show that the children’s present circumstances would significantly impair the children’s physical health or emotional development and that they had failed to provide credible, specific evidence that awarding the custody of the children to a parent would result in serious physical or emotional harm to the children. The grandparents asserted that this finding and conclusion were erroneous because they presented evidence of the daughter’s need for reasonable and necessary medical care, and of the parents failure to obtain it for her. However, their brief contained no discussion of these contentions or any citation to the record directing us to this alleged medical evidence.
The grandparents challenged the trial court’s denial of their petition for intervention because the trial court had awarded them temporary custody of the children at the hearing on their request for temporary orders ten days earlier. They argue that the trial court would not have granted custody to them or ordered a social study into their home had it not believed that they had a justiciable interest in their grandchildren. However, the trial court judge made clear that it was not yet taking action on the merits of the grandparents’ intervention because he wanted to give the parents the opportunity to obtain legal counsel. He made no determination on the grandparents’ justiciable interest in their grandchildren; instead, he merely placed the children in their custody temporarily until a full hearing on the merits of their claim of standing, with all parties represented by counsel, could be held. It was only upon a full evidentiary hearing on the grandparents’ petition in intervention that the trial court made a determination on the grandparents’ justiciable interest in the case-and that determination was that the grandparents did not have one. The grandparents complained that the trial court erred by requiring them to meet a “serious harm” standard of proof because they “were seeking, alternatively to sole managing conservatorship, joint conservatorship with one or more parents and/or possession of the children under an order of visitation.” The grandparents’ argument seemed to be that because one option that they were seeking was joint managing conservatorship with the parents they should not have been held to a “serious harm” standard because this arrangement was not one “in which neither of the parents are awarded custody.” This argument was inapposite because the standard applicable to the grandparents’ intervention was whether the evidence showed that the children’s physical health or emotional development was significantly impaired. See Tex. Fam.Code Ann. § 102.004(a)(1), (b). Regardless of whether the trial court applied a “serious harm” standard to the grandparents’ intervention, its decision to deny the intervention was nevertheless proper under the correct “significant impairment” standard.
In appropriate circumstances, grandparent intervention in pending custody proceedings promotes the overriding policy in all suits affecting the parent-child relationship, that of protecting the best interest of the child. However, grandparents do not have free rein to challenge any and all custody matters involving their grandchildren; instead, they must show standing to maintain an original suit involving the children or meet the Family Code’s relaxed standing requirements for intervention in order to involve themselves in the custody determination.
The grandparents did not establish standing to maintain an original suit because they did not show that they had had actual care, control, and possession of the children for at least six months, and they did not show that the children’s present circumstances significantly impaired the children’s physical health or emotional development. They also did not show that they were entitled to intervene in the divorce/custody proceedings because they did not provide satisfactory proof to the trial court that appointment of either or both parents as managing conservators would significantly impair the children’s physical health or emotional development.
In re C.C.J., 244 S.W.3d 911 (Tex. App.—Dallas 2008)
Modification of Child Support Requires Both Historical and Current Evidence of the Financial Circumstances of Mother and the Children: The father appealed the trial court’s order modifying the child support in a final divorce decree. Held: Affirmed. The f and the mother were divorced in 2005. Under the terms of the divorce decree, the mother was to receive child support from the father in the amount of $1025 per month. At a November 2006 hearing, the father testified that his annual salary had increased by $1500 since the time of the divorce. Records of the father’s income from June 2006 through August 2006 were admitted into evidence. The trial court found the father’s net monthly resources to be $4503.92 and ordered the father to pay child support to the mother in the amount of $1126 per month, retroactive to May 1, 2006. In his first issue, the father asserted the evidence was legally and factually insufficient to support the trial court’s finding that child support should be increased. The father argued the mother failed to meet her burden of proof to demonstrate the required material and substantial change of circumstances to warrant an increase in child support and contends, “The Trial Court’s judgment for an increase in child support constituted an abuse of discretion.” The mother argued she met her burden of proof and “established by a preponderance of the evidence a material and substantial change of circumstances” in support of her request for a retroactive child support increase as required under the Texas Family Code. Additionally, the mother asserted the evidence was “legally and factually sufficient to support the Trial Court’s judgment for the retroactive child support increase” and the trial court did not abuse its discretion. The trial court may modify a previous child support order if “the circumstances of the child or a person affected by the order have materially and substantially changed” since the date of the order’s rendition. In determining whether there had been a material and substantial change in circumstances, it was well-settled that the trial court must examine and compare the circumstances of the parents and any minor children at the time of the initial order with the circumstances existing at the time modification was sought. The record must contain both historical and current evidence of the relevant person’s financial circumstances. Without both sets of data, the court had nothing to compare and could not determine whether a material and substantial change had occurred. The movant had the burden to show the requisite material and substantial change in circumstances since the entry of the previous order.
The mother asserts that in the April 26, 2005 final divorce decree, which she requested the trial court to judicially notice, Father was ordered to pay “Texas Family Code guideline child support” in the amount of $1025 per month, “thereby establishing the father’s net monthly income at the time of the divorce and at the time of the final hearing on the modification.” In addition, the mother asserts that at the modification hearing: (1) the father’s paycheck stubs and pay summaries for June, July, and August of 2006 were entered into evidence, and (2) the father testified concerning changes in his employment and income since the date of the divorce, including a salary increase of $1500 per year. With respect to the financial circumstances of her and the children, the mother argued she testified at the modification hearing that: (1) she was a special education teacher with a net monthly income of $2783.61, and (2) her “total monthly living expenses, all of the children’s activity expenses, $495.00 preschool tuition, totaled $2,675.00 as admitted into evidence.” Although the record contained evidence respecting the expenses of the mother and the children at the time of the modification hearing, there was no evidence in the record respecting expenses of the mother and the children at the time of the divorce. In order to determine whether there had been a material and substantial change in circumstances, the trial court must examine and compare the circumstances of the parents and any minor children at the time of the initial order with the circumstances existing at the time modification was sought. Here, without both historical and current evidence of the financial circumstances of Mother and the children, the trial court had nothing to compare. Because there was no evidence in the record of the financial circumstances of the mother or the children at the time of entry of the divorce decree, the trial court’s finding of “a substantial and material change of circumstances since the rendition of the prior order” was not supported by the record. Accordingly, the trial court abused its discretion in increasing the father’s monthly child support obligation.
In the Interest of D.T., K.T. and M.T., Minor Children, W.L. 4465250; LEXIS 9468 (Tex. App.—Tyler 2007)
§ 157.005 Addresses How Long a Court Has Jurisdiction to Enforce its Orders and Is Not a Statute of Limitation: The father and the mother were married and had three children before divorcing in 1969. At the time of the divorce, the father was ordered to pay $150.00 per month in child support but he failed to do so. In the early 1970s, the mother attempted to get the father to comply with the child support order, and he was found guilty of contempt for failure to pay. The record was silent regarding any efforts to encourage his compliance until August 31, 2001 when the wife filed a motion for cumulative judgment of child support arrearages. An order was entered that year but was set aside in April 2004. The court entered an order finding that the father owed $286,100.14 plus interest. The father contended that he had a vested right to not pay the child support arrearage. He argued that § 157.005, as amended in 1999, acted as a statute of limitation and was a prohibited ex post facto law under which he would be liable for arrearages that he would not have to pay under prior law. From April 20, 1995 through August 31, 1999, Family Code § 157.005(b) provided that the trial court retained jurisdiction to hear a motion for enforcement filed not later than four years after the date the child becomes an adult. The father and the mother’s youngest son recently celebrated his fortieth birthday. Therefore, had the mother attempted to enforce the child support order between April 20, 1995 and August 31, 1999, the father could not have been held liable. Held: Effective September 1, 1999, § 157.005(b) provided that the trial court retained jurisdiction to confirm the total amount of child support arrearages and render judgment for past due child support until the date all support arrearages, including interest and any applicable fees and costs, have been paid.
The United States Constitution bans ex post facto laws. See U.S. Const. art. I, § 9, cl. 3. The Texas Constitution bans ex post facto and retroactive laws. See Tex. Const. art. I, § 16. A statute is retroactive if it takes away or impairs vested rights acquired under existing laws, or creates new obligations, imposes new duties, or adopts a new disability that affects acts or rights accruing before it came into force. The father correctly argued that a statute extending a cause of action’s limitations period cannot apply to revive a suit that would have been time barred before the new statute of limitations took effect because it would impair vested rights and violate the constitutional prohibition on retroactive laws. However, § 157.005(b) was not a statute of limitation. Statutes providing time limits within which enforcement of an existing support liability may be effected concern the court’s continuing jurisdiction and did not affect substantive rights. § 157.005 and its predecessors have been consistently interpreted as defining the contours of the court’s jurisdiction, not a time frame within which a party must file a claim or forever lose the right to do so. § 157.005 addressed how long a court had jurisdiction to enforce its orders and was not a statute of limitation. The father also contended the trial court’s order to pay the arrearage was barred by Texas Civil Practice and Remedies Code § 34.001, which disallowed execution on judgments more than ten years old. This ten year dormancy statute comes into play only when child support arrearages were coalesced into a judgment confirming arrearages. The ten year dormancy period began to run upon the signing of a judgment confirming arrearages. Therefore, the trial court’s order to pay the arrearage could not be barred by § 34.001.
Romano v. Newell Recycling of San Antonio, LP, W.L. 227974; LEXIS 611 (Tex. App.—San Antonio 2008)
Detailed Analysis of Common Law Marriage: Two women both alleged common law marriage. The Husband dies intestate. After a trial, the court ruled the Wife #1's marriage to the Husband was a valid, existing marriage, precluding any marriage to the Wife #2. The trial court signed a judgment in which it found that while a marriage to both women could be found based on the evidence, because Wife #1's marriage to the Husband was never dissolved and predated his alleged marriage to the Wife #2, the Wife #1 was the Husband’s sole heir. A common law marriage had three requirements: (1) the parties agreed to be married; (2) the parties lived together as Husband and Wife after they agreed to be married; and (3) the parties represented to others that they were married. All three elements must exist at the same time. There are two applicable presumptions. The first goes to the very existence of a common law marriage while the second concerned the validity of later marriages. Tex. Fam.Code § 2.401 provided that if no proceeding to establish the existence of a common law marriage was “commenced before the second anniversary of the date on which the parties separated and ceased living together, it was rebuttably presumed” there was no agreement to be married. The lapse of time did not bar suit but created a rebuttable presumption that the couple did not enter into any marriage agreement. The second applicable presumption stated, “when two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes the most recent marriage until one who asserts the validity of a prior marriage proves the validity of the prior marriage.” Texas law recognized common law marriage, but did not recognize common law divorce or annulment. Accordingly, a common law marriage, like a ceremonial marriage, can terminate only by death, divorce, or court-ordered annulment. In proving the continued validity of the prior marriage, it was unnecessary to prove the absence of divorce or annulment in every jurisdiction where such a proceeding was possible, but only where the parties might reasonably have been expected to pursue them. Proof that a prior marriage was not terminated by a court decree overcame any presumption that a later marriage was valid.
Held: It was undisputed that Wife #1 was subject to the presumptions described above. Accordingly, for the court to find Wife #1 was Husband’s sole heir, the evidence had to prove Wife #1's marriage to Husband was valid and existing during the time Wife #2 and Husband were purportedly married.
Wife #1 and the Husband met in 1989. They dated until 1990 when they moved into a home rented, and later owned, by Wife #1. Wife #1 testified that after a month or two of cohabitation she and the Husband began referring to themselves as husband and wife. When asked how this came about Wife #1 stated that at dinner one night they began talking about “what we were going to do since we’re living together.” At that dinner “both agreed ... to live like husband and wife ... be a married couple ... both agreed.” She testified she considered him her husband and he considered her his wife. The Husband referred to Wife #1 in her presence as “my wife.” This testimony, if unchallenged, was legally and factually sufficient to establish an agreement to be married. Wife #2 claimed this evidence was insufficient because it was self-serving and was contradicted by other evidence in the record. Wife #2 pointed to documents signed by Wife #1 including a loan application, a Deed of Trust, and a Non-Beneficiary Affidavit. The loan application and Deed of Trust to which Wife #2 referred were related to Wife #1's home purchase. These documents, which were signed in 1997, describe Wife #1 as single. Wife #1 explained she signed the Deed of Trust and other closing documents without reading them. Wife #1 also completed a Non-Beneficiary Affidavit to obtain insurance proceeds following the Husband’s death.” The form affidavit contained a question concerning whether the Husband was married at the time of his death and Wife #1 wrote “NOT TO MY KNOWLEDGE.” Wife #1 explained she believed the question was asking if the Husband was married to someone else. Wife #1's representations in these documents, and other items referenced by Wife #2, go to the weight to be afforded the evidence. They do not negate a common law marriage. The trial court obviously resolved these conflicts in favor of a finding of a common law marriage between Wife #1 and the Husband.
There was extensive evidence of cohabitation. Witness #1 was the Husband’s best friend and knew him more than twenty years. Witness #1 testified Wife #1 and the Husband “lived together ... seven years, eight years, nine years, somewhere around there .” Wife #1 testified she and the Husband lived together from 1990 until he left the home in June or July of 1999. This is in conflict with Wife #2's testimony because Wife #2 claimed she and Husband moved in together in July of 1998. Several of Wife #1's witnesses testified to cohabitation. Witness #2 testified the Husband and Wife #1 lived together. Witness #2 met the couple through a “pool” league and saw them every week from 1990 to 1993 or 1994. A neighbor, Witness #3, testified the Husband moved into Wife #1's house in 1990 and he was there “until later part of the 90s” and then gradually she did not see him anymore. Witness #4, Husband’s aunt, also testified Wife #1 and the Husband lived together. There was evidence that during Wife #1's cohabitation with the Husband he sometimes left the home and would stay with a friend or a relative. However, but for Wife #2's testimony that the Husband lived with her continuously from July of 1998, it did not appear that he left Wife #1 for more than a month or two at a time and that he left only during times the couple was fighting. Brief absences from the marital home do not preclude a finding of cohabitation.
The record was replete with evidence that Wife #1 and the Husband represented to others that they were husband and wife. It was established by their statements, their conduct, and written references. Wife #1 testified they considered each other husband and wife and that he referred to her as his wife. She stated the Husband introduced her to his friends as his wife and referred to her as his wife in front of her friends. Likewise, Wife #1 referred to the Husband as her husband, not her boyfriend. These references and introductions started when they moved in together in 1990. Witness #2 testified the couple always introduced themselves as husband and wife. Witness #2 stated that at league events the couple always said “this is my husband and this is my wife.” Witness #2 believed they were married. Witness #3 testified the Husband referred to Wife #1 as “his wife” and Wife #1 referred to him as “the husband.” She said she always viewed them as husband and wife. Witness #3 described how the Husband would come to her house and visit her father. Witness #3 would hear the Husband say to her father, “well, ... I got to go pick up my wife.” Similarly, Wife #1 would say to her at the conclusion of a visit, “ I got to go-time to go make dinner for my husband.” The Husband’s aunt, Witness #5, testified Wife #1 “became part of the household, ... always with us.” She said the Husband called Wife #1 “mi vieja,” which she interpreted as meaning wife in Spanish. There was no doubt in her mind they were married. Wife #1 and the Husband were sponsors for the 1994 wedding of Witness #5's daughter. Wife #1 was even invited to be part of the wedding. Both Wife #1 and the Husband signed the wedding guest book as “Mr. and Mrs.” Wife #1 testified she signed on the right side of the book and the Husband signed on the left side. She identified the writing on the left as Husband’s. The duplication apparently occurred because a child at the wedding was taking the book around asking everyone to sign. There were documents naming Wife #1 as the Husband’s common law wife. The Husband completed two separate life insurance applications in 1992 naming Wife #1 as his first beneficiary and describing his relationship with her as common law wife. In 1997, he completed and signed a life insurance policy modification giving ownership of one of the policies to Wife #1.
There were conflicts in the evidence with regard to “holding out.” Witness #1 testified the Husband never mentioned to him that he and Wife #1 were married. He stated the Husband only referred to Wife #1 as his girlfriend; however, he also claimed the Husband referred to both Wife #1 and Wife #2 as “ruca,” which he claimed was Spanish slang for “girlfriend.” Wife #1 signed documents designating her status as “single.” Wife #1 and the Husband never filed joint tax returns and had no joint bank accounts or credit cards. The Husband’s cousin, Witness #6, claimed the Husband only “dated” Wife #1 and he never brought her to any family events. She admitted, however, she was not close to the Husband during the time he was with Wife #1. Again, these conflicts do not preclude a finding that a common law marriage existed between Wife #1 and the Husband, rather the conflicts go to the weight of the evidence and were for the trial court to resolve. We find sufficient evidence to support a finding that Wife #1 and the Husband represented to others that they were married. The only remaining issue was whether the evidence supported the trial court’s finding that the marriage between Wife #1 and the Husband marriage was never dissolved. Wife #1 testified they never divorced and they were still married when he died. The Husband’s aunt testified the Husband lived in San Antonio his entire life. Thus, San Antonio (Bexar County) was the only jurisdiction where a divorce or annulment proceeding might reasonably have been pursued by the Husband. The record contained certificates from the Bexar County District and County Clerks certifying there have been no divorce or other judgments involving Wife #1 in the court records of Bexar County. Wife #2 did not contest the sufficiency of proof concerning the absence of a divorce or court-ordered annulment. The evidence was legally and factually sufficient to support the trial court’s implied finding that the common law marriage between Wife #1 and the Husband was never legally dissolved. The evidence was legally and factually sufficient to support the trial court’s findings of a valid, undissolved common law marriage between Wife #1 and the Husband, precluding any later marriage to Wife #2.