Georganna L. Simpson and Marisa Jeffrey 2012-12-26 02:13:45
In the past year, the Texas Supreme Court issued two family-law related opinions and is currently considering a number of matters that could change the face of family law as we know it. Service by Publication Disfavored The Texas Department of Family Protective Services removed a mother’s four children.1 The department petitioned to terminate the mother’s parental rights and, even though mother visited the department’s office several times after the petition was filed, the department served the mother by publication. Upon review, the Texas Supreme Court reversed and held that service by publication is only to be used as an absolute last resort, not an expedient replacement for personal serve, particularly when the defendant’s identity is known — calling it generally inadequate. Notice by publication, constitutionally suspect in 1950, is even more vulnerable today, given the precipitous decline in newspaper readership. In 1950, more than 80 percent of American adults read a daily newspaper; today that number is 50 percent. If MSA Ruled Ambiguous, Parties Must Return to Mediation The Texas Supreme Court ruled that a Mediation Settlement Agreement was ambiguous because it was unclear whether the parties intended to transfer the husband’s interest in a company or whether the agreement intended the wife become a partner.2 The court held that ambiguity is a question of law that should be decided by the court. Then, after the court determines that an ambiguity exists, the ambiguity must be resolved through mediation (as required by MSA), not by the trial court or the court of appeals. MSAs Involving Children’s Issues In February 2012, the Texas Supreme Court heard oral argument on a case that could change mediation forever in cases involving children.3 Lee is a mandamus action arising out of the 14th District Court of Appeals wherein the question presented was whether a trial court had a ministerial duty to enter judgment on an MSA it believed was not in the child’s best interest. In Lee, the mother and father entered into an MSA regarding custody. Subsequently, the father objected to entry of an order based on the MSA arguing for the first time that the MSA was not in the child’s best interests as the mother’s husband was a registered sex offender, who had slept naked with the 7-year-old female child. Although there were no facts to indicate that any family violence had occurred, the district judge refused to enforce the MSA, after which the mother sought mandamus relief, which was denied by the appellate court. The mother then sought mandamus relief from the Texas Supreme Court. If the Supreme Court affirms the trial court and the Houston 14th District Court’s rulings, MSAs could be subject to a best interest analysis, which could clearly affect the viability and attractiveness of mediation. Does the UCCJEA Prevent the Filing of a Pre-birth Child Custody Proceeding? A mandamus proceeding pending before the Texas Supreme Court involves a father, who filed a pre-birth divorce and child-custody proceeding in Texas.4 Subsequently, he learned that the mother had moved to New Mexico where she gave birth and subsequently filed a Suit Affecting the Parent-Child Relationship. The questions before the court are whether the Texas legislature had the power, when it enacted the Uniform Child Custody Jurisdiction Enforcement Act: (1) to bar a parent from filing a child-custody proceeding before a child is born in Texas and limit the subject-matter jurisdiction of Texas courts as proscribed by the Texas Constitution; thereby, placing the independence of the judiciary into question; and (2) to effectively deprive fathers of their equal protection rights afforded them by both the Texas and the U.S. Constitution to participate in their child’s prenatal care, birth, and immediate post-birth period. When is a Spouse Responsible for Other Spouse’s Debts? In a pending petition for review, a wife hired law firm to represent her in a divorce involving children filed by her husband.5 In her contract with the firm, the wife agreed to be responsible for the attorney fees, but the firm agreed that it would seek to collect those fees from the husband. After the husband paid the firm $50,000, the firm intervened in the divorce to secure its unpaid fees. The trial court awarded the firm $151,800 for its unpaid fees against the wife and gave her judgment for fees against the husband. Before the court signed the divorce decree, however, the husband and wife agreed to leave her solely liable for the fees, which agreement was incorporated in the final order. Shortly thereafter, the wife filed for Chapter 7 bankruptcy. The appeals court reversed and rendered judgment against the husband, holding that the fees were community debt and necessities for which he was jointly and severally liable. The principal issues before the Supreme Court are (1) whether Family Code 3.201 (1) (2), making a spouse liable for the other’s debts, establish the exclusive means to hold a spouse personally liable for the other spouse’s debts; (2) whether the attorney fees for the spouse sued for divorce were necessities; and, if so, (3) whether the other spouse failed to discharge his support duty to make him personally liable for the fees. Can a Party Be Ordered to Pay Attorney’s Fees as Additional Child Support in a Non-enforcement Modification Suit? In a pending petition for review, a father filed a modification seeking primary conservatorship, and the mother sought an increase in child support.6 There were no allegations or findings of non-payment of child support. Trial court denied the father’s modification, granted the mother’s, and ordered the father to pay her attorney’s fees as additional child support. The Houston 14th District Court affirmed the trial court. The Houston 1st District Court has held to the contrary. Is a Litigant Now Virtually Guaranteed a Continuance Unless the Trial Court Awards Him/Her Interim Attorney’s Fees? In a pending petition for review, after dismissing her sixth attorney 40 days before trial and being denied a continuance, a wife (who was a lawyer) represented her- self in her divorce suit.7 At trial, although she received more than half of the community estate, primary custody of the minor children, above guideline child support, confirmation of her separate property, and a money judgment for her tort claims, the wife appealed. The Houston 14th District Court reversed finding that the trial court’s denial of her motion for continuance was a per se abuse of discretion under Villegas v. Carter, 711 S.W.2d 624 (Tex. 1986). Notes 1. In re E.R., ___ S.W.3d ___, 55 Tex. Sup. Ct. J. 1130, 2012 WL 2617604 (Tex. July 6, 2012). 2. Milner v. Milner, 361 S.W.3d 615 (Tex. 2012). 3. In re Lee, No. 14-11-00714-CV, 2011 WL 4036610 (Tex. App.—Houston [14th Dist.] Sept. 13, 2011, orig. proceeding) (mem. op.) (oral argument held February 28, 2012 in Texas Supreme Court, 11-0732). 4. In re Carrie Dean, 11-0891 (Tex. 2011, orig. proceeding) (briefs on the merits filed). 5. Tedder v. Gardner Aldrich, L.L..P, 2011 WL 3546589 (Tex. App.—Fort Worth 2011, pet. filed, 11-0767) (oral argument 11/07/12). The gist of this summary was borrowed from Osler McCarthy at the Texas Supreme Court. 6. Tucker v. Thomas, -- S.W.3d --, 2011 WL 6644710 (Tex. App.—Houston [14th Dist.] 2011, pet. filed, 12-0183) (briefs on the merits filed). 7. Harrison v. Harrison, 367 S.W.3d 822 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). GEORGANNA SIMPSON is a sole practitioner in Dallas whose practice has focused for more than 20 years on family law appellate matters. MARISA JEFFREY is a recent graduate from SMU Dedman School of Law.
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