FAMILY LAW
FALL 2011
In
re Scheller, 325 S.W.3d 640 (Tex. 2010)
Grandparent
Access: The court reaffirmed the
heavy burden that grandparents must carry in order to have court-ordered access
to their grandchildren, pursuant to Family Code § 153.433. The court granted mandamus relief on the
basis that the trial court abused its discretion in entering temporary orders
providing a grandfather access to his grandchildren without sufficient evidence
that denial of access would significantly impair the children’s physical health
or emotional well-being. This dispute,
involving two minor girls, occurred between their maternal grandfather and
their father. The girls’ mother was
deceased. Prior to her death, the girls
enjoyed regular visits with their maternal grandfather. Following her death, the visits continued,
with Father relying on Grandfather to assist in caring for the girls. However, the relationship between the adults
turned sour after the Father remarried.
The Grandfather claimed that his visits with the girls became less
frequent as a result of the Father’s new wife, while the Father explained the
change as related to the Grandfather’s refusal to comply with his conditions
for visits with the girls. Several
verbal confrontations occurred, and ultimately the Grandfather filed suit
seeking to have access to his grandchildren, as permitted under § 153.433. The trial court entered temporary orders,
allowing for weekly telephonic contact, bi-monthly visits in even-numbered
months, and several days at Christmas and during the summer. In addition, the court appointed a
psychologist to serve as a guardian ad litem
and to evaluate the relationship between the children and the adults and make
recommendations to the court about whether denying Grandfather access to the
children would significantly impair the children’s well-being. The Father challenged both the guardian ad
litem appointment as well as the ordered visits.
Held:
The trial court abused its discretion in
ordering visits and thus the Court granted mandamus relief. However, the Court denied relief related to
the appointment of the guardian ad litem. The Court reasoned that courts cannot
infringe on the fundamental rights of parents to make decisions concerning
their children as long as they adequately care for their children. Thus, according to the grandparent access
statute, a grandparent must overcome the presumption that a parent acts in his
child’s best interest by providing evidence
that denial of access would significantly impair the child’s
well-being. The Grandfather presented
evidence of the girls’ sadness and anger and evidence that one of the girls
experienced isolated incidences of bed-wetting and nightmares. The Court characterized this evidence as the
children’s understandable sadness at the loss of a family member and missing
their grandparents. According to the
Court, however, lingering sadness was insufficient to satisfy this heavy
burden. Rather, the Court hinted that
evidence of depression or behavioral problems would be necessary to rebut the
presumption. Moreover, there was
evidence that the Father had taken steps to address his daughters’ grief,
including arranging for counseling for them.
The
Court, however, found no abuse of discretion in the trial court’s appointment
of an individual to serve as the guardian ad litem
and to evaluate whether the children have been adversely affected by lack of
contact with their grandfather. The
trial had issued only temporary orders and a hearing on the issue was
anticipated. The Court noted that Texas
law specifically provided for the appointment of a guardian ad litem to assist a court in the fact-finding that must
occur. See Tex. R. Civ. P.
204.4(a); Tex. Fam. Code § 107.021.
Despite the Father’s objection that appointing a guardian ad litem violated his constitutional rights by requiring
his children to participate in counseling against his wishes, the Court
concluded that the trial court’s order did not require counseling. Rather, the guardian ad litem would simply assist the Court in evaluating the
children’s best interest. Note:
There was still the hearing to follow, which may result in the Grandfather
having access to the children, but this case illustrates the enormity of the
stakes for the Grandfather. If he loses,
and the odds do not favor him, it is a pretty sure bet that he will have only
the access the Father is willing to
allow, which will likely be very little if any, and neither the Grandfather,
nor the girls, will have any legal recourse to alter the situation.
Iliff
v. Iliff, 339 S.W.3d 74
(Tex. 2011)
Child
Support; Intentional Unemployment: The
Texas Supreme Court has clarified what Family Code § 154.066 required, or more
accurately, did not require, for a court to consider a child support obligor’s
earning potential in determining the child support award. § 154.066 allowed the court to do so when the
obligor was intentionally unemployed or underemployed. The Court noted a split in the circuits, with
a good number of them reading into the
provision a requirement that the obligor be unemployed or underemployed for the
specific purpose of decreasing the child support obligation. See, e.g. DuBois
v. DuBois, 956 S.W.2d 607, 610 (Tex.
App.—Tyler 1997, no pet.). The
Court, however, stated that while a court could consider the purpose, the
provision was not so constrained as to require such a finding in every
case. The Court looked at the plain
language of § 154.066, which of course contained no mention of purpose or
intent. The Court declined to read into
the statute something not included by the legislature. Rather, the trial court had discretion to
consider an obligor’s earning capacity.
It may consider the obligor’s intent, and such intent may be
dispositive, but the court is not required to find that the obligor had the
express intent to avoid unemployment.
The Court cautioned that not every case of intentional unemployment
merited considering an obligor’s earning potential, recognizing that a parent
might be unemployed because he was starting a business or underemployed to
allow him to spend more time with his children.
Rather, the guiding principle, as usual, was the best interests of the
children. Essentially, the obligee will have the burden of proving that the obligor
was intentionally unemployed or underemployed.
The burden then shifts to the obligor to offer rebuttal evidence. The trial court must base any finding of
unemployment or underemployment on evidence presented during the hearing. Note:
In the present case, the obligor quit his job, notwithstanding his
$102,000 annual salary, and moved in with his mother. He contributed nothing to their living
expenses or upkeep of the house, but he
did sleep in late and enjoy watching television and reading. He was an educated man, possessing an M.B.A.,
and the obligor had 20 years experience in his industry. This evidence was sufficient to support the
trial court’s conclusion that the obligor was intentionally unemployed.
In
re R.T.K., 324 S.W.3d 896 (Tex.
App.—Houston [14th Dist.] 2010)
Parental
Presumption; Conservatorship Modification: It is probably a good bet that a litigant who mouths threats to her
own grandmother during a hearing before the court and posts insults about the
trial judge on the internet is unlikely to prevail in a case involving a minor
child. It does not help matters that the
litigant, the mother of the minor child R.T.K., at one time in her life had
been an “escort” to at least 80 men, had been convicted of spousal abuse
related to at least two assaults on R.T.K.’s father, and had assaulted R.T.K.’s
father’s first wife. Nonetheless, that
same litigant, Heidi, sought appointment as her son’s sole managing conservator
following the sudden death of R.T.K.’s father, who had been his sole managing
conservator for preceding 10 years or so.
She argued that the parental presumption, that was that a parent will be
appointed the child’s conservator, required her to be named the sole managing
conservator. R.T.K.’s stepmother also
sought appointment as the sole managing conservator. Held: Whether the issue was decided based on the
provisions in Chapter 153, in which the parental presumption appeared (see §
153.131) or the provisions in Chapter 156 addressing modification of an order
in a SAPCR, Stacie, R.T.K.’s stepmother should be named his sole managing
conservator. The Court rejected Heidi’s
argument (apparently made with a straight face) that the parental presumption
could be rebutted only evidence of blameworthy conduct on her part. The Court, however, noted that the focus in §
153.131 was on the effect of the parent’s conduct on the child, whether that
conduct was blameworthy or not. The
Court contrasted § 153.131 with the provisions for parental rights termination
found in §§ 161.001-.007, which could be properly construed as requiring
blameworthy conduct by the parent before her rights were terminated. § 153.131 did not contain language suggesting
that blameworthy conduct was a predicate to rebutting the parental
presumption. Blameworthy behavior could
be sufficient to rebut the presumption, but was not necessary in all cases if
there was evidence that the parent’s conduct could have a negative effect on
the child. Moreover, the Court had
plenty of evidence of Heidi’s blameworthy conduct, including that Heidi had
failed to support R.T.K., had several instances of long periods of time where
she failed to exercise her visitation rights with him, and there was the
physical assaults on R.T.K.’s father, which would by virtue of § 153.004,
result in a presumption that Heidi should not be appointed R.T.K.’s managing
conservator.
In
addition, if the case were decided pursuant to § 156.101, addressing
modifications of custody orders, there was sufficient evidence that
modification to change conservatorship from R.T.K’s deceased father to his
stepmother was in his best interest.
Giving R.T.K.’s stepmother sole managing conservatorship would promote
R.T.K’s need for stability given that R.T.K. had lived with his father and his
stepmother for the majority of his life and considered his stepmother to be his
mother.
In
re B.R., 327 S.W.3d 208 (Tex.
App.—San Antonio 2010)
Retroactive
Child Support: “Be careful of what
you ask for,” so the saying begins, as perhaps Luis, the father of a minor
child, learned. B.R. was born out of
wedlock, and Luis never married Amber, B.R.’s mother. Luis, although not subject to a court order
during the 13 years that preceded this action, periodically paid Amber child
support, and he claimed B.R. as a dependent, which resulted in an increase in
his military pay. When Amber sought to
terminate Luis’s parental rights so that B.R.’s stepfather could adopt her,
Luis sought an adjudication of his paternity and a determination of his rights and
duties as B.R.’s father. Amber and Luis
ultimately settled all issues related to Amber’s paternity with the exception
of the issue of current and retroactive child support. Based on the evidence that showed what Luis
had paid during the past 13 years versus what Luis would have paid pursuant to
the child support guidelines, the trial court ordered retroactive child support
in the amount of nearly $70,000. The
trial court additionally ordered Luis to pay $840 in current child support
based on what the court deemed Luis potentially could earn, concluding that
Luis was intentionally unemployed. Luis
appealed the amount of the retroactive child support ordered. Held: The trial court did not
abuse its discretion in awarding retroactive child support that exceeded the
amount that would have been payable during the preceding four years. § 154.131 addressed retroactive child
support, and subsection (c) stated that it was presumed that “a court order
limiting the amount of retroactive child support to an amount that does not
exceed the total amount of support that would have been due for the four years
preceding the date of the petition” is reasonable and in the best interest of
the child. Subsection (d) set out how
the presumption in subsection (c) could be rebutted. Notwithstanding the amount of retroactive
child support ordered by the trial court, the court concluded that subsection
(c) did not apply. Rather, the presumption in that section arose
only when a trial court limited the retroactive child support to an amount that
did not exceed four years’ worth of child support. Because the trial court in this case did not
so limit the retroactive amount, there was no need to consider whether the
presumption was rebutted.
Note:
The court’s construction of the statute was
rather unusual. It seems to suggest that
subsection (d) is relevant only after the court has determined the
amount of retroactive child support.
However, the dissenting judge (and this reviewer) read subsection (c) as
stating the maximum amount of child support that is reasonable unless the
presumption of reasonableness is rebutted pursuant to subsection (d). According to the court, however, its
interpretation is correct based on the plain meaning of the statute as well as
its conclusion that § 154.131 serves as merely a guide to the court’s
determination of the appropriate amount of child support. It is not clear that Amber would have been
able to rebut the subsection (c) presumption had the court required her to do
so. The dissenting judge did not think
that the evidence rebutted the presumption.
Indeed, there is nothing to suggest that Luis sought to avoid the
establishment of a child support order, which is one of the elements necessary
to rebut the presumption. The court
reversed the trial court’s child support award based on Luis’s earning
potential because there was no evidence that Luis was intentionally unemployed for
the purpose of avoiding child support. This
court, as has been the case with others, read into §154.066 of the Family Code
the requirement that an obligor’s unemployment or underemployment be for the
purpose of avoiding child support.
However, the Texas supreme court’s recent decision in Iliff v. Iliff,
339 S.W.3d 74 (Tex. 2011), clarified that § 154.066 contained no
requirement that the obligor have the specific intent to avoid child support
before the court can consider his earning potential, as described above.
Gray
v. Shook, 329 S.W.3d 186 (Tex.
App.—Corpus Christi 2010)
Parental
Presumption: This dispute arose
between the father of a minor child and the child’s grandmother, with whom the
child had lived a good part of her life.
The grandmother sought to be appointed the primary joint managing
conservator. The grandmother testified
to the circumstances surrounding her care of the child, her relationship with
the child, and the lack of a relationship with the father. In addition, a social worker testified to the
alleged separation anxiety the child suffered when separated from her
grandmother, as well as the possible long term problems the child could suffer
if she were removed from her grandmother’s home. In his testimony, the father claimed that the
grandmother often made it difficult for him to have contact with the child. The trial court ultimately sided with the
grandmother, finding that appointment of the father as a managing conservator
would significantly impair the child’s well-being and appointing the
grandmother as the sole managing conservator.
The trial court did appoint the father the possessory conservator. The grandmother’s success was dependent on
rebutting the parental presumption that the child’s best interest was served by
awarding custody to a fit parent. The
court reviewed the trial court’s ruling under an abuse of discretion standard. Held: The grandmother failed to rebut
the parental presumption. She presented
no evidence of any specific acts or omissions by the father that would result
in harm to the child. According to the
Court, the evidence showed nothing more than possible harm that could result
from the uprooting itself, which was insufficient. Moreover, the Court characterized the social
worker’s evidence as only speculation about what might occur. Thus, the trial court abused its discretion
in naming the grandmother the sole managing conservator. However, the Court did not render judgement in favor of the father given that a year had
passed since the trial court’s determination.
The Court recognized that circumstances might have changed and that the
trial court was better-suited to determine the conservatorship issues, but only
as between the biological parents. Note:
One judge dissented, concluding that there was probative evidence of the
harm to the child of uprooting her from the grandmother’s home, and that
therefore, the trial court did not abuse its discretion.
In
re S.M.D., 329 S.W.3d 8 (Tex.
App.—San Antonio 2010)
Geographical
Restriction on Sole Managing Conservator: This case involved a dispute between a father and the maternal
grandmother of a minor child. The mother
of the child at one time had been the primary joint managing conservator but
had since disappeared, leaving the child in the care of her mother. The trial court appointed the father as the
sole managing conservator, but the trial court imposed a geographic limitation
on the father. The grandmother appealed
the conservatorship decision. The father
argued, however, that the grandmother lacked standing to seek appointment as
either a managing or possessory conservator.
Held: The Court
agreed that the grandmother lacked standing.
The trail court failed to make any express findings that appointment of
the father would substantially impair the child’s well-being, and there was no
evidence to support an implied finding of such.
The Court then turned to the question of the geographic restriction
imposed on the father. Held: The geographic restriction unreasonably
interfered with the father’s rights as the sole managing conservator. The court understood the purpose of the
provisions that addressed geographic restrictions (see Texas Family Code
§§ 105.002; 153.133; 153.134), was to ensure that those who enjoyed a right of
possession of a child would be able to exercise that right. Because there was no one with a right of
possession other than the father, there was no reason to impose a geographic
restriction.
In
re Corder, 332
S.W.3d 498 (Tex. App.—Houston[1st Dist.] 2009)
Inability
to Pay Child Support: Perhaps the
lesson of this case is that if you can sell drugs, you can pay your child
support. Corder
owed more than $7000 in unpaid child support when his former wife sought to
hold him in contempt. The trial court
agreed and entered separate sentences for his various violations, but because
the sentences were to run concurrently, Corder would
spend only 180 days in jail. The court
ordered Corder be held after his 180-day sentence to
coerce him to pay his ex-wife’s attorney’s fees and costs. Corder sought habeas
relief, claiming that the trial court’s order was illegal because his due
process rights were violated when the trial court failed to advise him of his
right to a jury trial and his right not to incriminate himself. Held:
Because Corder’s confinement did not exceed
six months, he was not entitled to a jury trial, and he waived his right to not
incriminate himself when he took the stand to assert his affirmative defenses
for his failure to pay his child support.
As for his affirmative defense, Corder claimed
during the contempt hearing that a disability rendered him unable to pay his
child support and that he had been unable to borrow money and had no collateral
with which to secure a loan. However, Corder’s former wife provided evidence that law enforcement
had found Corder to be in possession of three
firearms, multiple prescription drugs, and six baggies of marijuana, and that Corder was
engaged in drug trafficking. This
discredited Corder’s claim of disability. The court remanded Corder
to the custody of the sheriff to finish his 180-day punitive sentence.
In
re J.J.L., 327 S.W.3d 282 (Tex.
App.—San Antonio 2010)
Parental
Termination; Frivolous Appeal Determination: The attorney retained to appeal a parental rights termination case
experienced partial success in his quest to obtain a determination that his
client’s appeal was not frivolous. The
appellate attorney, in his brief, stated that he could not say whether the
trial court abused its discretion in finding that the appellant’s appeal was
frivolous because he did not have the full record from the trial court. Appellate counsel urged the court to adopt a
rule requiring the filing of the full trial record without the necessity of
alleging that trial counsel was ineffective.
Held: The Court declined
to adopt such a rule, noting that a full record was not necessary if the record
from the hearing for a new trial contained a summary of the trial evidence that
both supported and negated the termination.
However, because the record from the new trial hearing did not contain
such a summary, the Court ordered the court reporter to prepare a report the
outlined the evidence admitted at trial such that a determination could be made
as to whether the trial court abused its discretion in finding the appeal
frivolous.
In
re M.C.G., 329 S.W.3d 674 (Tex.
App.—Houston [14th Dist.] 2010)
Parental
Termination: Substantial compliance
with a parent’s family services plan was not good enough to avoid parental
termination. The father in this case
failed to undergo the individual therapy required by his plan. The caseworker
assigned to the file admitted that she made a mistake in the paperwork
referring him to counseling and that she never informed him of the correction
of that mistake. Held: There
was sufficient evidence to support one of the statutory basis for terminating
parental rights, specifically Family Code § 161.001(1)(O) (failure to comply
with the provisions of a court order that specifically establishes the actions
necessary to obtain return of the child).
According to the Court, the Family Code did not provide any excuse for
failure to comply. Rather, any excuse
for failing to complete the service plan was relevant to only the determination
of whether the termination was in the child’s best interest.
Fillingim v. Fillingim, 332 S.W.3d 361 (Tex. 2011)
Community
Property Presumption: Both the trial
court and the appellate court failed to indulge the presumption that property
held by a spouse was community property, requiring the Supreme Court to set
things straight. The couple divorced
some twenty-five years before the former husband sought to clarify the original
divorce decree to reflect that some mineral interests given to him by his
parents were his separate property. The
husband failed to appear at the final hearing years earlier. The trial court at that time entered a decree
that divided the community property between the parties. The mineral interests at issue were not
specifically listed, but the decree contained a residuary clause that awarded
each party a one-half interest in all other property not otherwise disposed
of. Only years later did the husband
discover that instead of his receiving 100% of the royalties payable on the
mineral interests, his former wife was receiving half, which prompted his
suit. Held: Reversed. The Court recognized that a court
cannot divide separate property, but because the husband failed to prove that
the mineral interests were separate property–after all, he failed to appear at
the hearing–the mineral interests were properly characterized as community
property. Thus, the ex-wife prevailed.
State
v. Naylor, 330 S.W.3d 434 (Tex.
App.—Austin 2011); In re Marriage
of J.B. and H.B., 326 S.W.3d 654 (Tex. App.—Dallas 2010)
Same-Sex
Marriage: Within a relatively short
period of time, two different appellate courts addressed issues related to
same-sex couples seeking divorces. Naylor
involved the State’s attempt to intervene in divorce proceeding between two
women who were married in Massachusetts.
Held: the State’s petition
was untimely, and additionally, intervention would be inequitable in this
case. Naylor and Daly appear to have
been Texas residents who went to Massachusetts to get married and subsequently
returned home to Texas. They opened a
real estate business together, acquiring a number of properties in the process,
and they adopted a child together. Alas,
their wedded bliss did not last, causing Naylor to petition for a divorce, file
a SAPCR, and to seek a property settlement.
Daly moved to declare the marriage void under Family Code § 6.204. The property issues were quite complex
because apparently the women’s business records were in shambles, and
ultimately, the trial court seemed overwhelmed by the complexity of the
property division and the issues regarding the validity of the marriage. This may have caused the trial court to
strongly urge the parties to settle the case.
The parties did reach settlement on all issues, leading to the trial
court’s statement in open court that the women’s divorce was granted and its
acceptance of their settlement. The
State filed its petition in intervention and its plea to the jurisdiction the
following day, claiming that the trial court lacked jurisdiction to grant the
divorce because the parties were of the same sex. The trial court denied the State’s petition
on the grounds that it was untimely. The
appellate court denied the State’s appeal.
It concluded that the intervention was untimely because it did not occur
until after the trial court’s final ruling.
Thus the State was not a party to the lower court case and consequently
lacked standing to file an appeal. The
court also rejected the State’s attempt to rely on the concept of virtual
representation as an exception to the rule limiting appeals to parties to the
case. That doctrine will allow a
non-party to appeal if it can show, 1) that it was bound by the judgement; 2) that its privity of
estate, title or interest appears from the record; and 3) there is an identity
of interest between a party of record and the non-party. In addition, one must show that the
intervention is equitable. The State
tried to align itself with Daly, who at one time claimed that the marriage was
void pursuant to § 6.204. However in the
end, the Sate failed on all fronts.
Nothing about the divorce between two private parties would prevent the
State from later defending the constitutionality of Family Code § 6.204. In other words, the State was not bound by
the divorce decree between Naylor and Daly.
The State further failed to satisfy the element requiring privity. Nothing in
the record indicated the State’s interest in the parties property division or
the issues related to their child.
Similarly, the State failed in showing an identity of interest between
it and Daly. Daly’s interest was not
the validity of § 6.204. Rather, her
concern was simply the validity of her marriage. As the final blow, the court noted that even
if the State had satisfied the elements necessary to establish virtual
representation, the intervention would have been inequitable because it would
have resulted in delay in resolving the issues related to the real estate
business and leave unsettled the child custody issues related to the minor
child.
On
the other hand, in In re the Marriage of
H.B. and J.B., the State was more successful in challenging the
divorce of a same-sex couple. H.B. and J.B., two men, were married and
resided in Massachusetts for approximately two years before moving to
Texas. H.B. subsequently filed for
divorce on the grounds of insupportability. There was no timeliness question in this case
given that the State intervened within days of the petition, seeking to oppose
the divorce petition and to defend the constitutionality of the law that
precludes recognition of same-sex marriages.
The State thereafter filed a plea to the court’s jurisdiction, arguing
that § 6.204(c) of the Family Code stripped the trial court of subject-matter
jurisdiction. The trial court denied the
State’s plea to the jurisdiction, concluding that the Texas constitutional
provisions that define marriage as existing only between on
man and one woman, and § 6.204 violated the Equal Protection clause of the 14th
Amendment to the U.S. Constitution.
Subsequently, the trial court sua sponte struck the State’s petition in
intervention. The State sought mandamus
relief to address its stricken intervention and appealed the trial court’s
determination that it had subject-matter jurisdiction. Held:
The Court determined that mandamus relief was appropriate under the
circumstances because the trial court abused its discretion when it struck the
State’s petition in intervention in the absence of a motion and the State
lacked an adequate remedy by appeal. The
Court further concluded that the benefits of the mandamus would outweigh the
detriments.
As
to the more interesting issue, the court concluded that the trial court lacked
subject-matter to hear the divorce case, relying on § 6.204(c). That provision precluded giving effect to a
same-sex marriage or to a right or claim to any legal protection, benefit or responsibility
asserted as a result of such a marriage.
One cannot seek a divorce without asserting the existence of a valid
marriage, and granting the divorce would have the effect of establishing
validity of the marriage for purposes of res judicata.
A divorce would also result in the court dividing the community property,
which the court described as being “a paradigmatic legal benefit that is
associated intimately and solely with marriage.” According to the Court, even a denial of a
divorce between two individuals of the same sex would give some legal effect to
the marriage in violation of § 6.204(c).
Only if the court did not address the merits at all would a trial court
avoid ,violating § 6.204(c). The Court
also rejected H.B.’s claim of the trial court’s subject-matter jurisdiction
based on principles of comity. H.B.
urged the court to recognize the validity of his marriage based on the
place-of-celebration rule, because he
was legally married in Massachusetts. The Court, however, refused to do so. It noted that Texas uses the most-substantial-relationship
rule to determine the validity of a foreign marriage and that the
place-of-celebration rule runs counter to § 1.103 of the Family Code, which
stated that Texas law applied to persons married elsewhere who were domiciled
in this State. Arguably, this provision
presumed that there was a valid marriage to which Texas laws will apply as
opposed to a determination of the validity of the marriage. Nonetheless, the
Court further bolstered its conclusion with a reference to the Texas constitution,
which stated the definition of marriage and contains no exception for marriages
performed in other states, as well as a reference to Family Code § 6.204. Held:
The trial court lacked subject-matter jurisdiction to address the
merits of the divorce petition.
The
Court next turned its attention to the Equal Protection issue. Held: Proscribing the adjudication of a petition for
divorce by a party to a same-sex marriage does not violate the Equal Protection
clause of the U.S. Constitution. The
Court rejected H.B.’s argument that strict scrutiny was appropriate, refusing
to characterize homosexuality as a suspect classification. According to the court, H.B. did not
show that Texas generally excluded
homosexuals from the protections of its laws.
Nor did H.B. establish that homosexuals were a discreet group because he
failed to describe the characteristics that define them as such. In the alternative, had the Court concluded
that the case implicated a fundamental right, strict scrutiny would have been
appropriate. However, the Court found
that there was no deep-rooted tradition
of recognizing the right to marry a person of the same sex. Having concluded
that the rational relationship standard was appropriate, not surprisingly, the
Court determined that there was a rational relationship between the Texas
constitutional provision and § 6.204 and the State’s goal to encourage
parenting by one parent of each gender.
Finally, the court addressed questions related to declaring the marriage
void. According to the court, a trial
court would be able to declare the marriage void, and the court rejected H.B.’s
claims that he would be stigmatized by such a declaration as opposed to having
his marriage ended by a divorce.