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.