Friday, June 8, 2007

Mandatory Venue in SAPCR Modification Proceeding Enforced by Mandamus

Houston Appellate Court Orders Transfer of Venue in SAPCR Modification Suit

First Court of Appeals grants mandamus ordering transfer of venue in suit to modify prior orders for conservatorship and possession [Texas family law lingo for what is more commonly known as child custody and visitation].

In re Wilson (Tex.App.- Houston [1st Dist.] Apr. 26, 2007)(Hanks)(mandamus)(denial of motion to transfer venue was error)

In an opinion written by George C. Hanks, a panel of the First Court of Appeals holds that Family District Court Judge Annette Galik's denial of the mother's motion to transfer venue was error. The children had lived in the county to which transfer was sought for more than six months.

Key words: mandamus, venue, mandatory venue, family law, six months residency, SAPCR, court of continuing jurisdiction

Res Judicata Did Not Bar Former Spouse's Post-divorce Partition Suit

Former wife prevails in suit for post-divorce division of property; gets 50% share in retirement money not addressed in decree

Ezirike v. Ezirike (Tex.App.- Houston [1st Dist.] May 17, 2007)(Alcala)(retirement plan)

Former wife successfully sued to partition retirement funds not addressed by divorce decree. Court of Appeals affirms, finding that the 401K and retirement plan were community property not divided by the final decree of divorce. The court further holds that the parties' Rule 11 settlement agreement regarding child support overpayment and arrears did not constitute a property settlement agreement, and thus did not constrain the trial's court discretion to divide the parties' property. Unremarkably, the court also holds that a docket sheet entry does not control and cannot contradict the date shown on the judgment, and that denial of the husband's motion for summary judgment may not be appealed where, as here, it was followed by a trial on the merits. The ex-husband had unsuccessfully sought dismissal of the wife's partition action on the basis of res judicata and collateral estoppel.

Legal lingo: family law, divorce, suit for post-divorce division of community property, retirement benefits, claim preclusion, res judicata, collateral estoppel, prior judgment

Defaulting Bio Dad's Parental Rights Restored on Appeal

Biological Father of Child Born from Adultery Wins Partial Victory in Appeal of Retroactive Child Support Order and Denial of All Visitation

Miles v. Peacock and OAG (Tex.App.- Houston [1st Dist.] Apr. 19, 2007)(Bland)(paternity, restricted appeal)

This case illustrates the perils of not answering and not appearing for trial. Mother and attorney general won a default judgment for $24,000 in retroactive child support, current support of $1,000 per month, life insurance coverage for the benefit of the child, health insurance, and an order denying the biological father all visitation. The child had been born of an adulterous affair and thus had a presumed father. Wife-Mother waited until child was a teen before going after the biological father. The Court of Appeals found Bio Dad had waived the statute of limitations defense that applies under such circumstances by failing to plead it (he failed to file an answer), and held that admission of paternity test results was proper because the mother's husband had asked for them.

Affirming the judgment of paternity, the Court, in an opinion by Justice Jane Bland, reversed the award of child support and the denial of all access because no evidence was presented on the father's income and other relevant factor. Likewise, no evidence was presented that a deviation from the standard possession order was warranted and in the child's best interest. The court's opinion points out that the relevant facts must be proven in family law case to support default judgment, which differs from the confession of judgment rule in other civil cases.

Legal lingo: family law, parentage, adjudication of paternity, restricted appeal, default judgment, retroactive child support, paternity, presumed father, statute of limitations defense (SOL)

Amicus Attorney's Brief Not Considered in Appeal

Children's Amicus Attorney Should Not Have Filed Appellate Brief

O'Connor v. O'Connor (Tex.App.- Houston [1st Dist.] May 17, 2007)(Nuchia)(SAPCR)

Justice Sam Nuchia holds that the amicus attorney, appointed by the family court judge to assist in the determination of the children's best interest, had no role to play in the court of appeals because the amicus did not represent a party. The panel thus declined to consider the brief filed by the amicus attorney. The court of appeals affirms the trial court's judgment awarding sole managing conservatorship and a larger share of the community property to the husband and barring the mother from contact with the chidren.

Opinion by Justice Samuel Nuchia
Panel members: Justices Nuchia, Hanks and Bland
Appellate cause no.: 01-06-00445-CV Jamie R. O'Connor v. Daniel K. O'Connor
Appeal from 310th District Court of Harris County (Hon. Lisa Millard, Family Court Judge)

Legal lingo: SAPCR, suit affecting the partent-child relationship, amicus attorney, GAL, child custody, best interest, access denial, injunction

Monday, June 4, 2007

Recent Texas Family Law Cases

2006-07 Family Law Decisions of the Texas Supreme Court

In the Estate of Marvin Nash, No. 05-0538 (Tex. Apr. 20, 2007)(Opinion by Jefferson)(effect of divorce on will)

In Re Alvin Green, No. 06-0496 (Tex. Apr. 20, 2007)(per curiam)(contractual alimony not enforceable by contempt, habeas granted)

Re Ricky Derzapf, No. 06-0669 (Tex. Mar. 23, 2007)(per curiam)(family law, SAPCR, grandparent access / visitation suit, parent prevails over grandparent access claim, mandamus granted) Citation: In re Derzapf, 219 S.W.3d 327 (Tex. 2007). Also see In re Mays-Hooper, 189 S.W.3d 777 (Tex. 2006); Troxel v. Granville, 530 U.S. 57 (2000)

Zipp v. Wuemling, 218 S.W.3d 71 (Tex. 2007) (per curiam)
Zipp v. Alisa Wuemling, No. 05-0731 (Tex. Mar. 9, 2007)(per curiam)(guardianship dispute not moot following ward's death, replaced former guardian still had justiciable interest at stake)
Opinion on remand: In the Matter of Jewel W. Keller, an incapacitated person, No. 10-04-00118-CV (Tex.App.-Waco, Aug. 1, 2007) (Reyna)
Related link: Guardianship Certification Board (GCB) (certification process created by Texas Legislature for professional guardians; See Texas Gov't Code Chapter 111)

Norris v. Thomas, No. 05-0476 (Tex. Feb. 9, 2007)(Opinion by Willet)(boat not homestead under Texas homestead law)

In the Interest of A.M. and B.M., Minors, No. 03-0509 (Tex. May 5, 2006)(Opinion by Justice David Medina)(child support, child custody, reimbursement claim, offset after custody switch to obligor parent)

Sudan v. Sudan, No. 04-0921, 199 S.W.3d 291 (Tex. June 30, 2006)(per curiam)(no economic duress in spousal support agreement)

In re Mays-Hooper, 189 S.W.3d 777 (Tex. 2006) (grandparent access to grand child)

Kiefer v. Touris (Tex. May 26, 2006)(bill of review, paternity, nonpaternity)

In re A.M and B.M. (Tex. May 5, 2006)(custody switch and child support, off-set and reimbursement claims)

In Interest of M.C.C., a Minor, No. 04-0787 (Tex. Jan. 27, 2006)(per curiam opinion)(child support arrearage, interest)

2007 Family Law Cases from the Houston Courts of Appeals

Hutchison v. Price (Tex.App.- Houston [1st Dist.] May 18, 2007)(untimely appeal, DWOJ)
In Interest of A.A.M. (Tex.App.- Houston [14th Dist.] May 31, 2007)(Guzman)(family law, SAPCR, MTM, father custody)
Zavala v. Zavala (Tex.App.- Houston [14th Dist.] May 31, 2007)(Guzman)(family law, divorce, disproportionate division of property, award of 100% of equity in home, agreement by parties)
Beistel v. Robert Theodore Allen, Jr. (Tex.App.- Houston [1st Dist.] May 31, 2007)(Bland)(family law, child support, termination of wage withholding order]
Sambrano v. DFPS (Tex.App.- Houston [1st Dist.] May 31, 2007)(Taft)(CPS termination(termination of parental rights, Anders brief)
Office of the Attorney General of Texas v. Joe V. Phillips Tex.App.- Houston [1st Dist.] May 31, 2007)(Hanks)(void judgment, past child support)
Ezirike v. Ezirike (Tex.App.- Houston [1st Dist.] May 17, 2007)(Alcala)(family law, divorce, retirement plan
In re Wilson (Tex.App.- Houston [1st Dist.] Apr. 26, 2007)(Hanks)(mandamus, venue, MTV, family law, children six month residency, court of continuing jurisdiction)
Whitworth v. Whitworth (Tex.App.- Houston [1st Dist.] Mar. 16, 2007)(Hanks)(subst. opinion on rehearing)(family law, SAPCR, SMC, grandparents, standing to intervene)
Miles v. Peacock and AG (Tex.App.- Houston [1st Dist.] Apr. 19, 2007)(Bland)(family law, restricted appeal, default judgment, retroactive child support, paternity, limitations)
Gana v. Gana (Tex.App. - Houston [14th Dist.] Apr. 24, 2007)(Fowler)(family law, divorce, property division reversed)
Dade v. Dade (Tex.App.- Houston [1st Dist.] Apr. 19, 2007)(Hanks)(family law, divorce, QDRO)
Monk v. Pomberg (Tex.App. - Houston [1st. Dist.] Mar. 29, 2007)(Alcala)(subst. opinion on motion for rehearing) (family law, divorce, UDJA, SAPCA, pro se)
In re Schoelpple (Tex.App.- Houston [14th Dist.] Feb. 13, 2007)(per curiam denial)(family law, SAPCR, grandparent access, effect of nonsuit on intervention)