North Texas Family Law Blog

Moving Five Hours Away Not a Material and Substantial Change in Circumstances?

Jimmy Verner — Wed, 16 May 2012 14:05:43 -0600

The Dallas Court of Appeals reversed a district court that imposed a residence restriction on the parties' child when the mother decided to move the child from Grayson County to Houston. In the Interest of H.N.T., No. 05-11-00518-CV (Tex. App. - Dallas May 10, 2012, n.p.h.).

The parties had a daughter in 1998 but divorced in 2000. At the time of the divorce, mother had moved to Houston. While in Houston, mother remarried, then moved back to Grayson County, all in 2000. During this time, father remained in Grayson County.

From 2000 until 2010, mother continued to live in Grayson County with the parties' daughter. She and her new husband also had another daughter. Father remained in Grayson County.

In 2010, mother told father that the family was experiencing financial difficulties. She wanted to move back to Houston. Father opposed this move and filed suit to stop it. The trial court held that there had been a material and substantial change in circumstances since the 2000 divorce decree. The trial court granted father's request.

Mother appealed, arguing that because (1) she had been living in Houston on the date of divorce, and (2) she had moved back to Houston, then (3) there could not have been any material or substantial change in circumstances.

The Dallas Court of Appeals bought mother's simplistic argument: If you live in the same place you did ten years ago, there could be no material or substantial change of circumstances no matter where else you lived, or what else happened, in the meantime.

The Dallas court cited to, but did not follow, the analysis in, Bates v. Tesar, 81 S.W.3d 411, 430 (Tex. App. - El Paso 2002, no pet.). The Bates Court wrote:

But if the custodial parent moves a significant distance, a finding of changed circumstances may be appropriate. Such a decision is necessarily fact intensive but we can glean from the case law certain factors which the court should consider:

the distance involved;

the quality of the relationship between the non-custodial parent and the child;

the nature and quantity of the child's contacts with the non-custodial parent, both de jure and de facto;

whether the relocation would deprive the non-custodial parent of regular and meaningful access to the children;

the impact of the move on the quantity and quality of the child's future contact with the non-custodial parent;

the motive for the move;

the motive for opposing the move;

the feasibility of preserving the relationship between the non-custodial parent and the child through suitable visitation arrangements; and

the proximity, availability, and safety of travel arrangements.

We think that father's attorney was right when he said that he was "hard pressed to discern how attempting to move H.N.T. five hours away" from father was not a material and substantive change in circumstances.

Collaborative Law Basic Training - Summer 2010

Jimmy Verner — Wed, 28 Apr 2010 10:25:46 -0600

Collaborative Law: Two Day Basic Training

by Janet P. Brumley

About the Program: This two day basic training will cover interest based negotiation, a comparison and contrast of collaborative practice with litigation and mediation, an introduction to the Protocols of Practice for collaborative professionals and techniques for effective practice. It is open to lawyers, mental health professionals and financial professionals, but is geared primarily toward lawyers.

Dates: June 17 & 18 July 15 & 16

Details: Check Firm News on our website or go directly to the downloadable brochures for June or July.

Family Law From Around the Nation - Fall 2009

Jimmy Verner — Fri, 23 Apr 2010 18:11:25 -0600

State Bar of Texas Section Report - Family Law - Fall 2009

by Jimmy L. Verner, Jr.

Alimony: The Georgia Supreme Court refused to apply the “two-witness” rule to execution of a prenuptial agreement because a prenuptial agreement that sets the amount of alimony to be paid upon divorce is an agreement made in contemplation of divorce, not marriage, and therefore the prenuptial agreement statute does not apply. Dove v. Dove, Nos. 285 Ga. 647, ___ S.E. 2d ___, 2009 WL 1649681(Ga. 2009). In a dispute whether the word “salary” included bonuses when calculating alimony, the Connecticut Supreme Court held “salary” ambiguous because on one occasion during the prove-up of the parties' agreement, the ex-wife's counsel used the word “income” when referring to salary. Isham v. Isham, 292 Conn. 170, 972 A.2d 228 (2009).

Bankruptcy: A Minnesota trial court erred when it refused to order an ex-husband to pay a joint debt on property awarded to him upon divorce, despite the ex-husband's subsequent bankruptcy, because obligations resulting from divorce proceedings are not dischargeable in bankruptcy. Fast v. Fast, 766 N.W.2d 47 (Minn. App. 2009). An Oregon bankruptcy trustee failed to set aside transfers made pursuant to a divorce judgment in which the debtor wife received assets comprising less than 1% of the marital estate because the trustee alleged only constructive rather than actual fraud. Batlan v. Bledsoe, 569 F.3d 1106 (9th Cir. 2009).

Child support: A New York appellate court upheld a judgment of civil contempt (and a six-month jail sentence) when the trial court did not believe that the obligor, a fired postal worker, had a back problem that prevented him from working or really had tried to find a job. Vickery v. Vickery, 63 App. Div. 3d 1220, 880 N.Y.S.2d 724 (2009). A “change” in an account's “investment value” should not be considered income for child support purposes, but capital gains should, according to Cupkova-Myers v. Myers, 63 App. Div. 3d 1268, 880 N.Y.S.2d 736 (2009). A Connecticut court refused to enforce a stipulated family support judgment when the obligee claimed that because the judgment was tantamount to a civil judgment on which she sought execution, she need not prove the amount of any arrearage. Barber v. Barber, 114 Conn. App. 164, 968 A.2d 981 (2009).

Modification: A New York court agreed with the father that a mother's proposed move from New York to South Carolina would not be in the child's best interest, noting “that the father has exercised his visitation almost every weekend since the parties' separation and has remained active in the child's life.” Martino v. Ramos, No. 64 A.D. 657, ___ N.Y.S.2d ___, 2009 WL 2032366 (N.Y. App. July 14, 2009). In Perry v. Korman, 63 App. Div. 3d, 880 N.Y.S.2d 815 (2009), the court reversed a trial court's modification order granting custody to the father, even though the mother had moved six times in eight years, because other evidence favored the child remaining with her mother. A California appellate court mandamused a trial court that allowed a mother to move to Arizona during the pendency of a divorce because the trial court did not consider the child's best interest but only whether the father had proved a change in circumstances. Keith R. v. Superior Court, 174 Cal. App. 4th 1047, 96 Cal. Rptr. 3d 298 (2009).

Paternity: An Oregon court upheld an adjudication of paternity of a man who testified that his wife told him she had been artificially inseminated at a fertility clinic when she actually had used “an artificial insemination kit from an Internet vendor” and been inseminated by a private semen donor with the husband's help. In the Matter of the Marriage of A.C.H. and D.R.H., 229 Ore. App. 129, 210 P.3d 929 (2009). In California, a voluntary declaration of paternity signed by both parents has the “same force and effect as a judgment for paternity issued by a court of competent jurisdiction.” The appellate court reversed a paternity adjudication in famed father, who “took the child into his own home” and “held him out as his own child,” and adjudicated paternity of the biological father because he and the mother had signed a voluntary declaration of paternity. Kevin Q. v. Lauren W., 174 Cal. App. 4th 1557, 95 Cal. Rptr. 3d 477 (2009).

Property: A husband's beneficial interest in a revocable trust settled on him by his mother is not marital property in Oregon because the beneficial interest amounts to a mere expectancy. In the Matter of the Marriage of Githens, 227 Ore. App. 73, 204 P.3d 835 (2009). A New York court properly determined that only 10% of the value of a subsidiary owned by a corporation the husband organized prior to marriage should be included in the marital estate when the increase in the subsidiary's value was largely attributable to the efforts of its employees rather than its owner. Smith v. Winter, 883 N.Y.S.2d 412 (App. Div. 2009). An Indiana appellate court reminded the lower courts that a residence titled in a third party's name cannot be considered part of the marital estate without joining the third party in the divorce suit. Nicevski v. Nicevski, 909 N.E.2d 446 (Ind. App. 2009).

Settlement: In a pair of divorce cases, the North Dakota Supreme Court found one settlement agreement unconscionable but upheld another one. In Eberle v. Eberle, 2009 N.D. 107, 766 N.W.2d 477 (2009), the court held a settlement agreement unconscionable when the wife testified that the was on medication when she signed it, that the husband would not leave the house until she signed, that she did not read the agreement or consult an attorney, and that “no rational person would accept” the agreement. In Vann v. Vann, 2009 N.D. 118, 767 N.W.2d 855 (2009), the court upheld a settlement agreement despite the husband's testimony that he did not read the agreement or consult an attorney and that he suffered from alcoholism, depression and anxiety. The court noted that according to the wife, the husband “had not consumed any alcohol for three full days” prior to the date the parties signed the agreement.

UCCJEA: A New York trial court erred when it granted a Kentucky father's motion to dismiss a child custody proceeding for lack of home-state jurisdiction when the Kentucky mother had moved with the children to New York more than six months ago. The children's six-week summer vacation with their father in Kentucky during those six months “did not constitute a change in their residency.“ Felty v. Felty, 882 N.Y.S.2d 504 (App. Div. 2009).

A Primer on Exemptions for Dependents

Jimmy Verner — Sat, 17 Apr 2010 09:22:35 -0600

In a recent Tax Court case, White v. Commissioner, the court summarized IRS requirements for claiming dependents. The taxpayer was divorced with two children. The children lived with the mother. The taxpayer paid his child support, paid for health insurance for the children and also made gifts to them. Because of these financial contributions, the taxpayer claimed exemptions for the two children.

The Tax Court summarized the law on exemptions:

Generally, a taxpayer is entitled to claim as a deduction an exemption amount for each of his or her dependents. The definition of a dependent includes a qualifying child or a qualifying relative. Pertinent here, a qualifying child is an individual who is a child of the taxpayer, shares the same principal place of abode as the taxpayer, has not attained the age of 19 or is a student and has not reached age 24 at the close of the calendar year, and has not provided over one-half of his own support.

(citations omitted). And what is a "qualifying relative?"

Turning to the definition of a qualifying relative, the individual must: (1) Bear a relationship to the taxpayer that is defined in section 152(d)(2); (2) have income less than the exemption amount; (3) have the taxpayer provide more than one-half of the individual's support for the year; and (4) not be a qualifying child of the taxpayer or any other taxpayer for the year.

See Section 152. Finally, the Court mentioned a special rule for children of divorced parents:

[A] noncustodial parent may treat a child as a qualifying child, notwithstanding the failure to satisfy the place of abode test of section 152(c)(1)(B), if the parents provided over one-half of the child's support, the parents are divorced, and the parents lived apart at all times during the last 6 months of the year. Section 152(e)(2) adds a requirement that "the noncustodial parent attaches to his/her income tax return for the year of the exemption a written declaration from the custodial parent stating that he/she will not claim the child as a dependent for the taxable year beginning in such calendar year."

. . . The declaration must be made either on a completed Form 8332 or on a statement conforming to the substance of Form 8332.

Form 8332 requires a taxpayer to furnish: (1) The name of the child, (2) the specific years of release, (3) the signature of the custodial parent confirming his or her consent, (4) the Social Security number of the custodial parent, (5) the date of the custodial parent's signature, and (6) the name and the Social Security number of the noncustodial parent claiming the exemption.

(citations omitted).

Unfortunately for the taxpayer, he met none of the requirements to claim dependency exemptions for his children.

COBRA Continuation Health Coverage

Jimmy Verner — Wed, 24 Feb 2010 13:47:15 -0600

As Congress searches for ways to stimulate the economy and lessen the impact of the recession, one idea being floated is to extend the 65% health insurance subsidy under COBRA. So what is COBRA, and what does it have to do with family law?

If you get divorced, and your health insurance is through your spouse's job, you must find new insurance. But COBRA - the Consolidated Omnibus Budget Reconciliation Act of 1986 - permits you to stay insured under your ex-spouse's insurance for up to eighteen months, provided you pay the premium at group rates. The Department of Labor's Employee Benefits Security Administration explains:

Group health coverage for COBRA participants is usually more expensive than health coverage for active employees, since usually the employer pays a part of the premium for active employees while COBRA participants generally pay the entire premium themselves. It is ordinarily less expensive, though, than individual health coverage.

The Administration's "stimulus bill" (the American Recovery and Reinvestment Act of 2009) included a 65% subsidy in the form of a tax credit to insurance companies that insure "assistance eligible individuals." Per the Employee Benefits Security Administration's Fact Sheet: COBRA Premium Reduction, such an individual must be an employee who lost his or her job (and therefore his or her insurance) after September 1, 2008, and who is not "eligible for other group health coverage (such as a spouse's plan) or Medicare."

The subsidy originally spanned six months; Congress extended it to fifteen months in early 2010. The current debate is whether to extend the subsidy again.

The stimulus bill's effect on those who are divorced but have insurance through their employment is the same as for anyone else: If you lose your job and therefore your insurance, then you are eligible for the subsidy unless you are eligible for other group insurance or Medicare.

But what about those who already have elected COBRA coverage through their ex-spouse's employment? If the ex-spouse loses his or her job, may the other former spouse take advantage of the subsidy if he or she otherwise qualifies? Frankly, we don't know the answer, but we're sure this issue will come up one of these days as the recession continues.

Family Law From Around the Nation - Summer 2009

Jimmy Verner — Mon, 22 Feb 2010 14:05:56 -0600

State Bar of Texas Section Report - Family Law - Summer 2009

by Jimmy L. Verner, Jr.

Agreements: The Washington Supreme Court characterized a premarital agreement as substantively unfair because it “severely restricted the creation of community property,” but the court split on whether providing the first draft of the agreement to the bride eighteen days before the wedding amounted to procedural unfairness. In re Bernard, 204 P.3d 907 (Wash. 2009). A Virginia appellate court refused to uphold a marital agreement that purported to transfer all marital assets to the wife and all marital debts to the husband upon divorce because the husband had signed it while on a weekend furlough from a hospital’s psychiatric ward where he was being treated for chronic and severe schizoaffective psychosis. Bailey v. Bailey, 2009 WL 1438245 (Va. App. May 26, 2009). When the parties divorced in 2005 under a settlement agreement that required the husband to pay the wife $7.5 million in 2006, but the former husband paid his ex-wife twelve days late, a divided Connecticut court of appeals upheld an award of interest from the date of the parties’ 2005 settlement agreement because the settlement agreement required interest ‘from the date hereof’ if the ex-husband were late on the 2006 payment. Dougan v. Dougan, 2009 WL 1328955 (Conn. App. May 19, 2009).

Child Support: A New York appellate court upheld imputation of $750,000 in annual income to a father when an independent forensic accountant identified cash flows not reflected on tax returns and the father, a convicted felon, documented $3 million he received from his father, also a convicted felon, as a loan by signing a promissory note to his father two days before trial. Fabrikant v. Fabrikant, ___ N.Y.S.2d ___, 2009 WL 1444155 (App. Div. May 26, 2009). A statutory percentage could be applied to the full amount of a Mississippi father’s annual income given the family’s lifestyle, the child’s private school tuition and the fact that the mother did not intend to work until the child reached eighteen. Smith v. Smith, 2009 WL 1451340 (Miss. App. May 26, 2009). A Washington trial court erred when it ordered reimbursement of child care expenses in the amount of $400 per month plus medical expenses because the obligee did not introduce any canceled checks or other documentary evidence showing that she actually paid the expenses. In re Fairchild, 148 Wash. App. 828, 201 P.3d 1053 (2009).

Custody: That a mother had an affair with a married man, borrowed $43,000 to buy a car and intended to enroll in law school were among the factors leading the Georgia Supreme Court to affirm a trial court’s grant of primary custody to the father. Rembert v. Rembert, 674 S.E.2d 892 (Ga. Mar. 23, 2009). The Mississippi Supreme Court reversed a trial court’s change of custody from the mother to the father when the trial court “was so combative, antagonistic, discourteous, and adversarial” toward the mother that she was denied a fair trial. Schmidt v. Bermudez, 5 So.3d 1064 (Miss. 2009).

Dissipating property: An Iowa appellate court found that a husband dissipated marital property when he “single-handedly spent most, if not all” of his wife’s military pay earned while she served for a year and a half in Iraq. In re: Leininger, 2009 WL 606233 (Iowa App. Mar. 11, 2009). A New York appellate court upheld a dissipation finding when a husband who claimed physical injuries but refused to furnish medical authorizations simply closed his masonry business during the parties’ divorce. Scala v. Scala, 59 A.D.3d 1042, 873 N.Y.S.2d 787 (2009). Evidence that a husband spent at least $383,551.83 over a five-year period on a translator in Belarus named “Nina,” who sent the husband sexually explicit emails and photos, supported a Florida court’s finding that the husband had dissipated marital resources. Rabbath v. Farid, 4 So. 3d 778 (Fla. App. 2009).

Division: In New York, telling your husband that a child is his when it isn’t does not constitute “egregious fault” to be taken into account when distributing marital property equitably upon divorce. Howard S. v. Lillian S., 876 N.Y.S.2d 351 (App. Div. 2009). Neither maintenance payments to a former spouse nor payments on a spouse’s student loan were considered for equitable distribution purposes when both parties had used martial funds “to pay for their own obligations or to aid other family members.” Mahoney-Buntzman v. Buntzman, ___ N.E.2d ___, 2009 WL 1227875 (N.Y. May 7, 2009). Despite the parties’ inadequate financial presentations at trial, resulting in “a Gordian knot of poorly documented and otherwise unexplained premarital and marital financial dealings,” a Maine trial court nonetheless erred by applying partnership law to determine the parties’ assets and liabilities upon marriage because the parties were not partners before marriage. Ayotte v. Ayotte, 966 A.2d 883 (Me. 2009).

Move-away cases: A Virginia appellate court allowed a wife to move the parties’ children to Wisconsin, where her extended family lived, noting that the husband had “exhibited little to no interest in spending time with his sons until he learned wife was keeping a detailed log of his behavior toward the children and was planning to file for divorce.” Judd v. Judd, 53 Va. App. 578, 673 S.E.2d 913 (2009). When divorced parents disagreed about nearly everything (e.g., whether a child could “swim without adult supervision, go out on a lobster boat, help load a wood stove [or] ride a razor scooter”), and the mother displayed a more nurturing and supportive parenting style, a Connecticut court allowed the mother to move the child to Virginia when her employer transferred her there. Lederle v. Spivey, 113 Conn. App. 177, 965 A.2d 621 (2009). Holding “that the right to travel guaranteed by the United States Constitution includes the right to travel within Montana,” the Montana Supreme Court reversed a trial court decision changing custody to the father when the mother wanted to move from Terry to Kalispell, a distance of about 700 miles. In re Marriage of Guffin, ___ P.3d ___, 2009 WL 1395412 (Mont. May 19, 2009).

Troxel update: A New York court held that a former domestic partner lacked standing to seek joint custody of the other’s child, born while the parties were together, because standing requires that one be a biological or adoptive parent of a child. Debra H. v. Janice R., 877 N.Y.S.2d 259 (App. Div. 2009). The Delaware Supreme Court ruled identically when only one partner had adopted the child. Smith v. Gordon, 968 A.2d 1 (Del. 2009). In Arizona, a court of appeals vacated a trial court’s temporary order granting a parent and her former partner equal visitation with the parent’s child, holding that the trial court had “failed to employ adequate procedural and evidentiary safeguards to protect the interests of the legal parent.” Egan v. Fridlund-Horne, ___ P.3d ___, 2009 WL 995794 (Ariz. App. Apr. 14, 2009). A couple with whom a deceased mother and her son had lived obtained custody of the son because the trial court found the father to be an unfit parent, evidenced by his lack of interest in the child, his failure to pay any child support and his lengthy criminal record. Florio v. Clark, 674 S.E.2d 845 (Va. 2009).

Family Law From Around the Nation - Spring 2009

Jimmy Verner — Fri, 12 Feb 2010 14:10:14 -0600

State Bar of Texas Section Report - Family Law - Spring 2009

by Jimmy L. Verner, Jr.

A deal’s a deal: The New York Court of Appeals upheld the parties’ French premarital agreement, which characterized property that each spouse “may come to own subsequently by any means whatsoever” as that spouse’s separate property. Van Kipnis v. Van Kipnis, ___ N.E.2d ___, 11 N.Y. 573 (N.Y. Dec. 18, 2008). The Iowa Supreme Court held a premarital agreement valid despite claims of duress, undue influence and unconscionability, observing (among other things) that wife’s counsel had written on a draft of the agreement that it would “waive all [wife’s] rights as spouse!” In re Marriage of Shanks, 758 S.W.2d 506 (Iowa Dec. 12, 2008) (exclamation point in original). In a split decision, a Florida appellate court applied a marital settlement agreement to terminate a former wife’s alimony because she “cohabited” with another person when the prison in which she was incarcerated assigned her a cellmate. The dissent agreed with the trial court that this construction led to “an absurd result, unthinkably bizarre and at odds with any reasonable interpretation intended by the agreement drafters.” Craissati v. Craissati, 997 So. 2d 458 (Fla. App. Dec. 10, 2008). In Oregon, a dissolution settlement agreement could not be rescinded when one of the parties refused dog visitation because the settlement agreement included a severability clause. Wolf v. Taylor, 224 Or. App. 245, 197 P.3d 585 (Dec. 3, 2008).

Child Support: The Ohio Supreme Court held that a court is not required to reject an agreement between obligor and obligee to forgive child support arrearages despite a statutory proscription that a court “may not retroactively modify an obligor’s duty to pay a delinquent support payment.” Byrd v. Knuckles, 120 Ohio St. 3d 428, 900 N.E.2d 164 (Ohio 2008). Depending on several factors, an Indiana court may include a father’s retirement contributions as income for child support purposes; the court also found the mother to be voluntarily unemployed when she moved in with her employer and quit working. Saalfrank v. Saalfrank, 899 N.E.2d 671 (Ind. App. Dec. 31, 2008). A father’s failure to exercise any possession of his children (“residential time” in Washington) can warrant a child support award above the statutory advisory amount. Krieger v. Walker, No. 147 Wash. App. 952, 199 P.3d 450 (Wash. App. Dec. 29, 2009).

Custody/Visitation: In a 3/2 split decision, the South Dakota Supreme Court reversed a change of custody to a father, observing that the father “demonstrated a clear disregard for [the child’s] wellbeing when he fought tooth and nail to maintain his child support obligation [at] $150.00 per month, especially in light of [the mother’s] modest part-time income, higher education expenses, and lack of assets. [The father] used the full power of his financial resources to keep from paying an additional $213.00 per month for the basic necessities of life for his child.” Pietrzak v. Schroeder, 2009 S.D. 1, 759 N.W.2d 734 (S.D. Jan. 7, 2009). The Georgia Supreme Court refused to enforce a punitive self-executing change in visitation as against public policy when the mother moved out of state. Rumley-Miawama v. Miawama, 284 Ga. 811, 671 S.E.2d 827 (2009). The North Dakota Supreme Court affirmed a trial court’s decision to reduce a father’s visitation because his new wife was “hostile” toward his former wife. Siewert v. Siewert, 2008 N.D. 221, 758 N.W.2d 691 (2008).

Division: A Virginia appellate court reversed a trial court’s ruling that a husband pay his wife half his military retirement benefits retroactive to nearly a year prior to the filing of suit. In addition, and even though the husband was a criminal, the husband should not be required to pay the wife’s attorney’s fees of $20,000 when the husband received only a few thousand dollars more than that in the divorce. Cusack v. Cusack, 53 Va. App. 315, 671 S.E.2d 420 (Va. App. Jan. 20, 2009). A California husband’s mere assertion that property purchased during marriage is community property failed to rebut the presumption of separateness arising from the wife taking title to property in her name alone. In re: Brooks, 169 Cal. App. 4th 176, 86 Cal. Rptr. 3d 624 (Cal. App. Dec. 16, 2008). A Florida appellate court abused its discretion by awarding each spouse a half interest in the wife’s veterinary business because the award created an “intolerable situation” by forcing “two parties who have stated that they do not want to continue to work together after their divorce to do just that.” Lift v. Lift, No. 4D07-1168, ___ So. 2d ___, 2009 WL 18678 (Fla. App. Jan. 5, 2009) (Without hint of irony, the court said the parties agreed that the trial court had erred.).

Domestic violence: The federal Gun Control Act, 18 U.S.C. § 922(g)(9), forbids a person from possessing a firearm if the person as been convicted of a misdemeanor crime of domestic violence. After careful parsing of the statute, a divided United States Supreme Court held that the predicate offense need not include as an element of the crime that it was committed against one in a domestic relationship with the offender but only that the victim, in fact, stood in a domestic relationship with the offender. United States v. Hayes, No. 07-608, ___ S.Ct. ___, 2009 WL 436680 (U.S. Feb. 24, 2009).

ERISA: In the Fall 2007 FLS Report, this column reported on Kennedy v. Plan Administrator, in which the Fifth Circuit held that an ex-wife’s waiver of any interest in her deceased husband’s retirement plan in their divorce decree violated ERISA’s anti-alienation clause in the absence of a QDRO. In 2009, the United States Supreme Court affirmed the Fifth Circuit but on different grounds. The Supreme Court held that the ex- spouse’s waiver did not violate ERISA’s anti-alienation clause because the waiver assigned nothing. Nevertheless, a plan administrator must follow the plan rather than give effect to a waiver. But the Court’s decision absolved only the plan administrator: The Court did not “express any view as to whether the Estate could have brought an action in state or federal court against [the ex-spouse] to obtain the benefits after they were distributed.” Kennedy v. Plan Administrator, ___ S. Ct. ___, 2009 WL 160440, at n.10 (U.S. Jan. 26, 2009) (emphasis added).

Odds & ends: If one applies for a green card for one’s spouse, based on an informal marriage requiring that the parties lived together, then the spouses must have lived together because “living together” means living together. People v. Hassan, No. B194141, 168 Cal. App. 4th 1306, 86 Cal. Rptr. 3d 314 (Cal. App. Dec. 3, 2008). A 17-year-old in foster care was not entitled to payment by the state for her automobile liability insurance based on the statutory requirement that foster parents provide “liability insurance with respect to a child.” In re: Corrine W., 45 Cal. 4th 522, 198 P.3d 1102 (Cal. Jan. 22, 2009). If you hide a recording device inside your daughter’s teddy bear to spy on your ex in Omaha, you might get sued in federal court. Lewton v. Divingnzzo, No. 8:2009cv00002 (U.S. Neb. Jan. 2, 2009) (Complaint).

Verner Publishes Grandparents' Rights in Texas

Jimmy Verner — Tue, 19 Jan 2010 14:46:54 -0600

Jimmy Verner announced today that Grandparents' Rights in Texas is now available as a Kindle eBook from amazon.com. A physical copy will soon be available through amazon's CreateSpace feature.

In 2000, the United States Supreme Court decided a case called Troxel v. Granville. The Court ruled that a grandparent may not obtain visitation with a grandchild over a parent's objection unless the grandparent can demonstrate that the parent is unfit. Since 2000, the Texas Supreme Court has addressed grandparents' rights three times, and the Texas legislature has substantially amended the grandparents' rights statute. It is now reasonably clear what rights grandparents have — and what rights they lack — under Texas law.

Mr. Verner became interested in Troxel shortly after the Supreme Court decided the case. He published two articles on the web about Troxel. In response to numerous inquiries, Mr. Verner consolidated, updated and expanded the articles into this book.

The book overviews Troxel v. Granville, then introduces the reader to the sometimes–bizarre Texas terminology describing what other states call custody and visitation. The book then returns to Troxel v. Granville, after which it examines the three Texas Supreme Court cases applying Troxel v. Granville. Next, the evolution of the Texas grandparents' rights statute is outlined. The book concludes with conclusions to be drawn from Texas' interpretation of Troxel v. Granville and a bulleted summary of grandparents' rights law.

The appendix includes copies of Texas' current grandparents' rights statute, Troxel v. Granville, and the three Texas Supreme Court cases applyingTroxel v. Granville to grandparents. The book is designed as a starting point for the attorney's research and as an overview of grandparents' rights law for the nonlawyer.

Table of Contents, Grandparents' Rights in Texas:

Preface

About the Author

Disclaimer

Introduction

The U.S. Supreme Court: Troxel v. Granville

Texas Parent–Child Definitions and Terminology

Grandparents' Rights Under Texas Law

Troxel in the Texas Supreme Court

Troxel in the Texas Legislature

Summary and Conclusions

Appendix:

Texas Grandparents' Rights Statute

Troxel v. Granville (U.S. Supreme Court 2000)

In re Mays–Hooper (Texas Supreme Court 2006)

In re Derzapf (Texas Supreme Court 2007)

In re Chambless (Texas Supreme Court 2008)

Tex Parte Blog Features iPhone Child Support App

Jimmy Verner — Thu, 30 Jul 2009 17:38:18 -0600

Texas Lawyer's "Tex Parte Blog" posted a nice blurb about our iPhone app that calculates Texas guideline child support:

Texas child support? There's an app for that.

Jimmy Verner Jr. (pictured), a shareholder in Dallas' Verner & Brumley, has begun marketing a Texas child support calculator application for an iPhone. "I'm kind of a techy person. I developed a formula for figuring out child support payments online, and someone in my office said, 'You ought to turn it into an iPhone application,' " recalls Verner. So, with the help of a freelance software developer and about a month's worth of effort, he did just that. His application has been on sale on iTunes online since July 23. So far, Verner says, 20 customers have bought it, paying $7.99 each -- 70 percent of which Verner pockets, with 30 percent going to iPhone's famous maker Apple Computer Inc. Verner says he is considering developing similar iPhone applications for New York and California child support calculations, but those states have more complicated formulas, so it's taking more time. In the next two weeks, he plans to begin marketing an iPhone application to calculate litigation deadlines, factoring in weekends and holidays. Oh, by the way, Verner didn't even own an iPhone until he needed to test his idea.
-- Miriam Rozen

iPhone Application Calculates Texas Child Support

Jimmy Verner — Fri, 24 Jul 2009 17:52:00 -0600

Verner & Brumley, P.C., announces that Jimmy Verner has created an iPhone application that calculates Texas guideline child support.

With only five inputs, anyone - whether an attorney or a person in the middle of a divorce or modification suit - can calculate the exact amount of Texas guideline child support that must be paid. The inputs are:

whether the person who will pay child support is self-employed
that person's gross annual income
how many children are before the court
the amount of annual health insurance premium for the children
how many children from prior relationships the person already is ordered to support.

With these five inputs, the Texas Child Support Calculator determines the exact amount of child support that must be paid.

Support for the calculator - should any be needed - is available at no charge through VernerLegal, a website hosted by Mr. Verner.

The Texas Child Support Calculator can be purchased from the iTunes Store.

Visitation and the Six O'Clock Hour

Jimmy Verner — Mon, 08 Jun 2009 09:00:36 -0600

The 81st Texas Legislature has adjourned, having passed two major family law bills. The bills are Senate Bill 866 and House Bill 1012. They make many changes to Texas family law. This post is the first of several to examine these bills' effects.

Changes to the Standard Possession Order

Beginning with section 6, House Bill 1012 implements changes to the Standard Possession Order. An important change is setting out a default time for possession exchanges of 6:00 p.m.

In the past, for example, a possessory conservator could elect that weekend possession begin at the time a child's school is regularly dismissed. Tex. Fam. Code § 153.312(a)(1) (2007). Other parts of the Family Code, although allowing for possession, did not specify a time. E.g., Tex. Fam. Code § 153.312(b)(2)(A) (2007) (summer possession upon written notice). Now all these periods begin or end at a default time of 6:00 p.m.

How is the default avoided? A conservator must request the court to impose alternative beginning and ending possession times per amended Tex. Fam. Code § 153.317 (effective September 1, 2009) (reprinted in full below). Upon request, the court must alter the standard possession order - unless the court finds that alteration would not be in the child's best interest - to allow possession to begin or end when school lets out or resumes for the following periods of possession:

Weekends
Thursdays
Spring break
Christmas school vacation
Thanksgiving
Mother's Day

Father's Day is the third Sunday in June. School is not in session then, but Father's Day possession can be extended to 8:00 a.m. on the Monday after Father's Day.

Specifying 6:00 p.m. as the exchange time is helpful to parents, lawyers and the courts because now there will be a default time for changes of possession. But if a conservator had the right to elect the alternative provisions before, why did the legislature change those parts of the Family Code? Apparently, the purpose is to allow the court more control over when possession occurs, even though a court already has extensive power over possession.

There is a subtle mismatch between the House Committee Report on House Bill 1012 and the text of new section 153.317. According to the House Committee Report, if a conservator elects the alternative possession beginning and ending times, "and the court finds the election is in the best interest of the child, then the court must change the start and end times to [the] specified, alternative times stated in the statute." (emphasis added). But the statute reads that the court must change the start and end times, upon a conservator's request, "unless the court finds that the election is not in the best interest of the child." (emphasis added).

Which conservator bears the burden of proof? Is the burden to show that alternative times are in the child's best interest or are not in the child's best interest?

New Texas Family Code § 153.317 (effective September 1, 2009)

ALTERNATIVE BEGINNING AND ENDING POSSESSION TIMES

(a) If elected by a conservator, the court shall alter the standard possession order under Sections 153.312, 153.314, and 153.315 to provide for one or more of the following alternative beginning and ending possession times for the described periods of possession, unless the court finds that the election is not in the best interest of the child:

(1) for weekend periods of possession under Section 153.312(a)(1) during the regular school term:

(A) beginning at the time the child's school is regularly dismissed; or

(B) ending at the time the child's school resumes after the weekend;

(2) for Thursday periods of possession under Section 153.312(a)(2):

(A) beginning at the time the child's school is regularly dismissed; or

(B) ending at the time the child's school resumes on Friday;

(3) for spring vacation periods of possession under Section 153.312(b)(1), beginning at the time the child's school is dismissed
for those vacations;

(4) for Christmas school vacation periods of possession under Section 153.314(1), beginning at the time the child's school is dismissed for the vacation;

(5) for Thanksgiving holiday periods of possession under Section 153.314(3), beginning at the time the child's school is dismissed for the holiday;

(6) for Father's Day periods of possession under Section 153.314(5), ending at 8 a.m. on the Monday after Father's Day weekend;

(7) for Mother's Day periods of possession under Section 153.314(6):

(A) beginning at the time the child's school is regularly dismissed on the Friday preceding Mother's Day; or

(B) ending at the time the child's school resumes after Mother's Day; or

(8) for weekend periods of possession that are extended under Section 153.315(b) by a student holiday or teacher in-service day that falls on a Friday, beginning at the time the child's school is regularly dismissed on Thursday.

(b) A conservator must make an election under Subsection (a) before or at the time of the rendition of a possession order. The election may be made:

(1) in a written document filed with the court; or

(2) through an oral statement made in open court on the record.

Preparing for Divorce

Jimmy Verner — Sun, 31 May 2009 17:38:50 -0600

There are many things one should do to prepare for divorce. Vancouver's MacLean Family Law Group has prepared a checklist. Although not every item will apply in every case, it is the most complete checklist we've seen. Here it is:

MAIL: Review all mail coming into your house and make a list of the sender and return address. It is very important to know the address of stockbrokers, insurance companies, credit issuers, banks, and revenue properties, COPY THESE DOCUMENTS.
PERSONAL MATTERS: Have your mail sent to an address other than the Matrimonial Home for your privacy and to ensure that you receive it. For example, a post office box or home of a close friend or relative. File a change of address notice with the post office.
FAMILY FINANCES: Review all monthly bank statements and brokerage statements, credit card statements, property assessments, and COPY THESE DOCUMENTS. Give copies of necessary documents to your lawyer for safekeeping.
TAX RETURN: Review all tax returns that have been filed by you and your spouse. Demand an explanation as to any item, which may be questionable before signing. Make complete copies of tax returns for the last several years.
TAXES OWED: Be certain that all taxes owed to the Federal Government or other taxing agencies are paid to date. IF NOT COPY NOTICES OF ASSESSMENT.
SAFE DEPOSIT BOX: Inventory and review the contents of any safe deposit box. List the contents including cash and jewelry. Be sure that all safe deposit boxes are in joint names. TAKE PHOTOGRAPHS AND COPIES OF THE CONTENTS.
BUSINESS INTERESTS: Be familiar with your spouse's business interests. Become involved and be aware of financial information regarding the business by getting full information on the business, including bank documents, loan applications, corporate tax returns and financial statements.
MATRIMONIAL ASSETS: Do not transfer, sign, or make a gift of marital assets in joint names. Credit cards in joint names may discourage large personal purchases by one party. Conversely, you may wish to cancel credit cards to prevent large purchases by your spouse without your permission.
PENSION PLANS: Obtain copies of your pension plan and your spouse's also with any yearly statements and determine when they vest and benefits become payable, ask for the plan booklets and latest contribution statements. These documents will be useful if you file for divorce in BC.
WILLS AND TRUSTS: Obtain copies of any wills or trust agreements and be involved in any estate planning.
LOANS: Review and make copies of all loan documents, mortgage applications, and financial statements.
SIGNATURE: Do not sign any financial statements if blank. Know what you are signing and always keep a copy.
MEDICAL: Have a complete medial and dental check up. Be sure that you have medical and dental insurance (if available) in the event of separation.
CANADA PENSION PLAN: Obtain Canada Pension Plan statements.
SAVINGS AND PERSONAL FINANCES: Separation generally causes immediate economic hardship. Put away cash or keep money in traveler's checks in order to be able to purchase personal necessities in the event of a divorce.
AUTOMOBILE: Be sure that your automobile is in good working condition and that it is titled jointly or in your sole name.
INSURANCE: Review and make copies of all insurance policies relating to the matrimonial residence furnishings, or other assets. This should include any jewelry, silverware, or other valuable. Make copies of any appraisal that have been prepared. These documents will be useful if you file for divorce in BC.
INDEBTEDNESS: Do not create any additional debts and make no large purchases such as a new boat or car. Keep your assets as liquid as possible.
LIABILITY: Prepare a complete list of all debts or obligations including credit cards, notes, mortgages, etc. Identify each debts, when it was incurred and the reason for the debt. Identify who has been making payments on them, as well as the monthly or annual amounts.
ASSETS: Prepare a complete list of all assets in your name and your spouse's. These documents will be useful if you ever file for divorce in BC. Include whether the assets are held individually or jointly and the source of the assets, whether inherited, gifted, or in the name of a third party on your behalf. It is important to determine whether the assets were acquired prior to or during the marriage. Make copies of any documents which show the details and values of all assets and debts.
INHERITANCES: Keep all inheritances separate from the marital estate. Do not put an inheritance into joint names and do not use proceeds to pay for family expenses or purchases or to pay down debts.
EMPLOYMENT: Do not quit work if you are employed. It is important to secure your future financial independence and earn enough to maintain assets such as your home and car.
RESIDENCE: DO NOT MOVE OUT of the family residence without first discussing it with your lawyer.

Military Retirement Pay Does Not Include Disability Pay

Jimmy Verner — Fri, 01 May 2009 13:52:09 -0600

This blog entry might be subtitled, "Ah, but what a difference a few words makes!"

Here's the background: When a service member retires, he or she is entitled to receive military retirement pay, either voluntary retirement benefits or disability retirement benefits. If the service member becomes divorced, his or her spouse might well be awarded a part of the military spouse's retirement pay (if, as and when received) as part of the division of the community estate.

If a service member is disabled, or becomes disabled, he or she may elect to receive Veteran's Administration disability benefits instead of military disability retirement benefits. Veteran's Administration disability benefits are considered personal to the service member and cannot be divided upon divorce because they are not part of the community estate.

What sometimes happens is that a retired, disabled service member will opt to waive all or part of his military retirement pay for Veteran's Administration disability benefits. To the extent that the former service member receives Veteran's Administration disability benefits in lieu of military retirement pay, his or her military retirement pay is reduced. As a result, the amount of military retirement pay the former spouse then receives decreases because there is less of it to split.

Nearly twenty years ago, in Berry v. Berry, 786 S.W.2d 672 (Tex. 1990) (per curiam), the Texas Supreme Court ruled on a case in which this situation occurred. In that case, the former spouse was to receive a percentage of her ex-husband's "gross Air Force disability retirement pay" which was to be "computed on the gross amount thereof before any deductions." The retiree elected to receive Veteran's Administration disability benefits; his military retirement pay was reduced accordingly. The Court upheld the former wife's attempt to require the former husband to continue paying her a portion of the former husband's retirement pay based on the amount of his retirement pay before the reduction caused by accepting Veteran's Administration disability benefits because that reduction amounted to a "deduction" from the retirement pay. Thus, because of the way the divorce decree had been drafted, the former wife continued to receive her full share of the former husband's military retirement pay.

On May 1, 2009, the Texas Supreme Court ruled on another case of this nature, Hagen v. Hagen, in which the divorce decree granted the non-military spouse a portion of "all Army Retirement Pay or Military Retirement Pay" that the service member might receive. The decree did not mention Veteran's Administration disability benefits or contemplate that the former husband's military retirement pay would be reduced if the husband became disabled and opted to receive Veteran's Administration disability benefits in lieu of military retirement pay. Accordingly, the Court upheld the reduction in payments to the ex-wife caused by the ex-husband's decision to accept Veteran's Administration disability benefits.

Had the decree in Hagen read like the one in Berry, the result in Hagen would have been the same as in Berry. But those crucial few words were missing, so the result was different.

Premarital Agreement Signed "Involuntarily"

Jimmy Verner — Fri, 17 Apr 2009 12:08:12 -0600

In Martin v. Martin, the Dallas Court of Appeals ruled that a trial court had erred by granting summary judgment that a marital property agreement was valid. The wife admitted she had signed the agreement, but she said she had signed involuntarily. The court remanded the case to the trial court for further proceedings.

One of the defenses to the validity of a marital property agreement is that "the party did not sign the agreement voluntarily." Tex. Fam. Code § 4.105. An action is taken "voluntarily" when it "is taken intentionally or by the free exercise of one's will," said the court.

This case is notable because of the facts it relied upon to conclude that the wife had signed the agreement involuntarily. In short, the husband told the wife that the agreement was necessary "to protect the family's assets from possible financial ruin in the event of litigation against the business" and that he had no intention of divorcing her.

The wife's attorney advised her not to sign the agreement. The husband

constantly threatened that the family would be financially ruined and would have nothing if [the wife] did not sign the agreement. When [the wife] tried to discuss her attorney's concerns with [the husband], he became outraged and called [wife's attorney] “incapable,” “unqualified,” and insisted that [the wife] ignore [the attorney's] advice. [The wife] said that she had no choice but to sign the agreement because her sole concern was the welfare of the family.

Some years later, the husband filed for divorce. On these facts (as fleshed out in the court's opinion), the Dallas Court of Appeals concluded there was some evidence that the wife signed the agreement involuntarily.

This case appears inconsistent with cases such as Sheshunoff v. Sheshunoff, in which the Austin Court of Appeals held that a husband had voluntarily signed a marital property agreement even though his wife threatened to withdraw her guarantee of his bank loan, which would ruin the husband's business by causing the bank to call its line of credit, if the husband refused to sign; and Nesmith v. Berger, in which the same court upheld a marital property agreement where a husband refused to go on the couple's honeymoon unless the wife signed the agreement. The Dallas Court cited, but did not distinguish, Sheshunoff; the court neither cited nor distinguished Nesmith.

A Primer on Contempt of Court

Jimmy Verner — Mon, 13 Apr 2009 13:23:28 -0600

Justice Rose Vela of the Corpus Christi Court of Appeals has authored a Memorandum Opinion in which she thoroughly and lucidly discusses contempt of court. The opinion is linked below, but here are some of the statements of law it contains:

A judgment of contempt may be either civil or criminal.
The purpose of civil contempt is remedial and coercive. A judgment of civil contempt exerts the judicial authority of the court to persuade the contemnor to obey an order of the court when obedience will benefit an opposing litigant. Imprisonment is conditional upon obedience and therefore the civil contemnor "carries the keys of (the) prison in (his) own pocket." When a relator has committed civil contempt, he may procure his release by complying with the provisions of the court's order.
Criminal contempt, by contrast, is punitive in nature in that the sentence is not conditioned upon a promise of future performance; rather, the contemnor is being punished for a completed act that affronted the dignity and authority of the court.
Texas law is clear that a petitioner may not be confined for civil contempt unless he or she has the ability, but refuses, to perform the conditions for release. Stated otherwise, a person cannot be incarcerated indefinitely for civil contempt if he or she does not have the ability to perform the condition required for release. An order of contempt imposing a coercive restraint is void if the condition for purging the contempt is impossible of performance. Similarly, the involuntary inability to comply with an order is a valid defense to criminal contempt.
The relator bears the burden of proving his inability to comply. We do not weigh the evidence, but determine only if there is no evidence to legitimize the relator's confinement. Thus, the issue in habeas corpus review is whether the relator has conclusively established his inability to comply.

In this case, the relator (the person held in contempt) was imprisoned for failure to pay child support. To avoid a finding of contempt, a child support obligor who fails to pay must prove that he or she:

(1) lacked the ability to provide support in the amount ordered;

(2) lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed;

(3) attempted unsuccessfully to borrow the funds needed; and

(4) knew of no source from which the money could have been borrowed or legally obtained.

Tex. Fam. Code Ann. § 157.008(c). All four elements must be proved.

Because the relator did not prove these elements in the trial court, the Corpus Christi Court of Appeals denied his petition for writ of habeas corpus and left undisturbed his 180-day jail sentence. Ex parte Coronado, No. 13-09-00149-CV (Tex. App. - Corpus Christi Apr. 9, 2009).

The Quirky Language of Child Support Laws

Jimmy Verner — Fri, 10 Apr 2009 12:48:03 -0600

Often, after divorce, a former spouse moves the court to increase or to decrease child support. When this occurs, Texas Family Code section 156.401(b) states that when the court ultimately makes a ruling on the modification, the modification can be made to take effect as of the date citation was served in the motion to modify or the date the opposing party appeared in that suit. In other words, the increased or decreased amount of child support can be made payable as of a date in the past.

In In the Interest of R.C.T., the Texas Attorney General moved a trial court to increase the amount of child support a former husband must pay. In September 2006, the trial court ordered that as of April 2005, the former husband's child support should be increased to $1,340 from $828 per month. The trial court calculated that the amount of retroactively unpaid child support from April 2005 to September 2006 equaled $9,024. The trial court ordered the former husband to pay this $9,024 at the rate of $150 per month on top of the new child support amount of $1,340 monthly.

The Attorney General then filed a child support lien for the $9,024 in unpaid child support.* The Attorney General also requested the Treasury Department to withhold the former husband's anticipated federal income tax refund of $3,839 and pay it in partial satisfaction of the $9,024.

The former husband appealed. He argued that (1) the child support lien could not issue because the $9,024 was not "due and owing" as required under the child support lien statute; and (2) his federal income tax refund could not be intercepted because the $9,024 was not "past-due support" under federal law. Both positions were based upon the trial court's order that the $9,024 would be paid at $150 per month.

Houston's Fourteenth Court of Appeals ruled against the former husband on the first issue but for him on the second one. The court reasoned that the $9,024 was "due" because "it is an amount that is presently enforceable." The $9,024 was "owing" because, in fact, the former husband did owe the money. Thus, the child support lien could issue.

On the second issue, the Fourteenth Court of Appeals held that "past-due support" under federal law means that child-support payments are "delinquent." The court followed the lead of a Pennsylvania decision which held that "the federal intercept program does not encompass situations where a parent has continually complied with his child support obligation, but where, nonetheless, arrearages are created as a result of the retroactive effect of an order of support." Therefore, the Attorney General could not intercept the former husband's federal income tax refund and apply it to the $9,024.

_________________________

* Why, one might ask, would the Attorney General take this action when the trial court had ordered this $9,024 paid at $150 per month? This is a subject for another post, but suffice it to say that the Attorney General's Office has taken an wide-ranging view of its powers to collect child support.

An Unusual Case of Splitting Custody of Siblings

Jimmy Verner — Mon, 06 Apr 2009 15:17:45 -0600

When parents are divorced, almost invariably the children stay together if there is more than one minor child. In other words, if one parent has custody of one of the children, that parent almost always has custody of all the children. As the Third Court of Appeals wrote in Stoufflet v. Stoufflet, "There is a long line of jurisprudence in Texas that supports keeping siblings together in the same household absent clear and compelling reasons for separating the children." But once in a while, a court will separate siblings.

Stoufflet is one of those cases. The facts of the case are awful. There were three children, a daughter age 15 and two sons, age 12 and 9, as of the date of the court of appeals' decision. The mother said she left the father after she discovered the youngest child viewing sadomasochistic pornography on a laptop the father gave the child. The mother said she found both sadomasochistic pornography, as well as pornography involving bestiality, on the family desktop computer. The father admitted he viewed sadomasochistic pornography but denied viewing pornographic bestiality. He said he had attempted, but failed, to erase the images from the computer memories.

During the weeks and months following the separation, the mother claimed that the children began to recover memories of abuse by the father. This abuse was said to include choking, pushing, hitting and kicking the children; sexually abusing the two boys; physically and sexually abusing family pets in front of the children; drugging and sexually abusing the mother while she was unconscious; and torturing and killing two young boys in front of two older children and their paternal grandmother. The father denied all allegations of abuse.

Although the testimony at trial was conflicting, much of it concerned the mother's state of mind. The court of appeals observed:

The trial court heard evidence that all three children were harmed by their mother's paranoid delusions and by her practice of speaking ill of the father in front of the children. . . . The trial court also heard testimony from [the youngest child's] therapist that [the youngest child] needed to be immediately removed from the continuing allegations that permeated his mother's home.

The court of appeals affirmed the trial court's decision that the father should have custody of the youngest child and the mother custody of the older two children:

Based on the evidence before it, the trial court could have reasonably concluded that [the youngest child] would face future emotional danger if he continued to live with his mother and siblings whereas [the older children] would face future emotional danger if they were removed from their mother's care, and that the only way to serve the best interests of all three children was to separate them. Therefore, we conclude that the trial court could have found clear and compelling reasons to separate the children and we overrule [the mother's] first point of error.

One hopes these children will recover from this ordeal.

Fraudulent Transfer of Sole Management Property

Jimmy Verner — Tue, 31 Mar 2009 10:15:14 -0600

This is a case of an interesting idea that didn't work. The community estate owned all the shares in the husband's machine shop. When the wife filed for divorce, the husband transferred 49% of the stock to an employee. The parties entered into a mediated settlement agreement that reserved for trial the issue whether the stock transfer had been fraudulent.

Texas community property law is clear that all property acquired during marriage is community property. Absent exceptions not applicable here, this is true even when the property is titled in the name of only one of the spouses. In this case, the husband held title to all the stock.

At trial - which the Eastland Court of Appeals described as "basically a swearing match between [the husband] and [the employee] on the one hand and [the wife] on the other" - the husband and the employee claimed that the husband transferred the stock to the employee so that the employee would not quit. No money changed hands. The wife agreed that there had been some discussion about giving the employee some of the stock but not 49% of it. The trial court found that the stock transfer was "grossly unfair to the community estate."

The interesting idea? Texas Family Code § 3.102 explains that "each spouse has the sole management, control, and disposition of the community property that the spouse would have owned if single." To paraphrase Texas Family Code § 3.104, a third person who purchases sole management community property from the sole-management spouse takes the property as against the other spouse unless there is fraud involved. The husband argued to the court that section 3.104 authorized him to transfer the stock without the wife's consent.

The court would have none of the husband's argument: "We do not agree that Section 3.104 authorized him to act without [the wife's] consent. As a director, [the wife] was entitled to participate in a decision of this magnitude affecting [the company]. She was entitled to be consulted before [the husband] conveyed almost one-half of their principal company for no consideration."

At the end of its opinion, the court remarked: "This divorce needs to be concluded." Wright v. Wright, No. 11-07-00169-CV (Tex. App. - Eastland Mar. 26, 2009).

Collaborative Law Basic Training - Spring 2009

Jimmy Verner — Sat, 28 Mar 2009 19:37:45 -0600

(Begins promptly at 9:00 a.m. and ends at 5:00 p.m. each day)

Location: 3131 Turtle Creek Blvd., Penthouse Suite, Dallas, Texas 75219

Cost: $500.00 per person - ** Limited to 10 Enrollees for maximum interaction (Cost must be paid upon reservation and is refundable if canceled at least seven days prior to seminar)

About the Trainer: Janet P. Brumley is the author of Divorce Without Disaster; is board certified in family law by the Texas Board of Legal Specialization; has practiced law for 25+ years in Dallas County, Texas; is a frequent presenter on collaborative law at professional continuing education seminars; is a member of the committee that drafted Texas Collaborative Law Protocols of Practice for Lawyers; has served as chairperson of Dallas Alliance of Collaborative Family Lawyers; was selected as a Texas Super Lawyer and Top 50 Women Attorneys in Texas; has been selected by her peers to be included in The Best Lawyers of America 2007; has conducted collaborative law training in Dallas, Houston and Fort Worth; attended Harvard Law School Advanced Negotiation Workshop; is a member of International Alliance of Collaborative Professionals, Texas Collaborative Law Institute, Dallas Alliance of Collaborative Lawyers and the American Academy of Matrimonial Lawyers.

Please contact Becky Borders to enroll or for further information. 214.526.5234 or bborders@vernerbrumley.com

Neither Personal nor Subject Matter Jurisdiction

Jimmy Verner — Fri, 27 Mar 2009 12:40:15 -0600

The San Antonio Court of Appeals affirmed a trial court's dismissal of all claims in a divorce case except for the granting of the divorce itself. The trial court did not consider conservatorship, possession and access, child support or property division. The trial court stated that it lacked subject-matter jurisdiction over these claims because the wife and child lived in Italy and the parties' property was "not located within the court's jurisdiction."

The court of appeals affirmed the trial court's ruling. But the court of appeals discussed the case in terms of personal and subject-matter jurisdiction when it really was discussing "status" jurisdiction. What is status jurisdiction? A state always has jurisdiction to determine the marital status of its residents, even when a resident's spouse cannot be located or served. This principle holds true even though the court has no jurisdiction to divide marital property, adjudicate custody disputes, award alimony, or require the payment of child support. Because a court might not have the power to grant all relief sought or needed in a divorce case, the case is said to be "divisible."

The "divisible divorce" is rooted in a hoary old United States Supreme Court case called Pennoyer v. Neff, 95 U.S. 714 (1878). The Texas Supreme Court most recently applied the doctrine in Dawson-Austin v. Austin, 968 S.W.2d 319 (Tex. 1998), cert. denied, 525 U.S. 1067 (1999), where the husband moved to Texas to file for divorce while the wife remained in California. The Texas Supreme Court held that the trial court had jurisdiction to grant the husband a divorce but not to divide the parties' property.

Thus, the San Antonio Court of Appeals reached the correct result (assuming that Texas had no jurisdiction over any of the parties' property, including intangible property such as a bank account), but the opinion might have been more clear had the court analyzed the case in terms of status jurisdiction and the divisible divorce.