Texas Court Includes Father’s Personal Injury Annuity in Resources When Calculating Child Support

Texas Court Includes Father’s Personal Injury Annuity in Resources When Calculating Child Support

Originally published by Kelly McClure.

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The Texas Family Code provides guidelines to assist courts in calculating child support that are based on a percentage of the parent’s net monthly resources.  The statute sets forth what types of income are included and excluded from the parent’s net monthly resources.  In many families, it is fairly straight-forward to determine what is included in the calculation.  If a parent’s only income is from the wage or salary he or she earns from employment, it is relatively simple to identify the net monthly resources.  Some families, however, have more complicated financial circumstances making it less clear what should be included.

In a recent case, a father appealed the inclusion of an annuity payment in his net monthly resources for purposes of the child support calculation.  Prior to the marriage, the father settled a claim for a work-related accident with his employer.  As a result of the settlement, the father receives $6,970 per month from an annuity.  The payments will continue until either the the father’s death or June 1, 2044.

The couple had one child during the marriage.  The mother filed for divorce less than a year after the couple was married.  Although the couple reached agreement on some issues, they were unable to agree on child support and medical support.  The trial court found the annuity payments were “resources” under Texas Family Code 154.062 and included them in the father’s resources when calculating the child and medical support payments.

 

The father appealed, arguing the trial court erred in including the annuity payments in his net resources and therefore erred in calculating the amount of child support and medical support.  The appeals court considered the plain language of the statute defining resources.  The statute specifically addresses annuities, stating, “Resources include…all other income actually being received, including… annuities…”  Although previous cases distinguished between settlement annuities and other types of annuities, the appeals court declined to draw such a distinction.  The appeals court pointed out that the statute included “annuities” within “resources,” and did not differentiate between types of annuities.  Furthermore, the statutory language did not differentiate between the portion of the annuity payment representing repayment of premiums and the portion that represented earned interest.  The appeals court therefore found no error in the trial court including the full amount of the monthly annuity payment in the father’s resources.

The appeals court in this case found that the entire annuity payment could be included in the parent’s net monthly resources.  However, this holding is inconsistent with the previous holding of another Texas appeals court.  Although the language in the statute provides that annuities are included in net monthly resources, there is also language stating that the “return of principal” is not included.  The issue, therefore, may not be completely settled.  Different facts or a different court could lead to a different result.  If you are anticipating a child support dispute involving an annuity, the skilled child support attorneys at McClure Law Group can help.  Call us at 214.692.8200 to schedule an appointment to talk about your case.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Arguments for Custody Evaluator Immunity in Lawsuit

Sherry cites Jones vs Sherry case in support for her immunity  cases.justia.com/texas/third-court-of-appeals/2019-03-18-00279-cv.pdf?ts=1561724417  Quotes from that appeal:
“When a person is entitled to derived judicial immunity, he or she receives the same absolute immunity from liability for acts performed within the scope of his or her jurisdiction as that of a judge. Dallas County v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002) (concluding that court reporter was not entitled to derived judicial immunity)” 
“Applying the functional approach and considering Dr. Sherry’s relationship to the judicial process in the underlying divorce proceedings, we conclude that Dr. Sherry is entitled to derived judicial immunity for any acts performed within the scope of her delegated authority ” 

Most importantly Sherry violated the Texas Family Code (§107.108) to abide by all standards of care and all ethical standards guidelines ;
AFCC Rules –  Model Standards of Practice for Child Custody Evaluation
www.afccnet.org/Portals/0/ModelStdsChildCustodyEvalSept2006.pdf5.1 ESTABLISHING THE SCOPE OF THE EVALUATION 
The scope of the evaluation shall be delineated in a Court order or in a signed stipulation by the parties and their counsel.

At no point does the Jones appeal discuss the fact that Sherry did not perform within the scope of her delegated authority, and does not mention that Sherry did not follow the laws and codes as stated in Sherry’s own signed stipulation by the parties.   Sherry citing the Jones appeal is irrelevant because the cases are brought about on totally different claims.   Sherry’s scope of the evaluation was delineated in the signed agreement between the parties that stated

  1. Alissa Sherry and her corporation would, and were required to abide by the ethical standards of Psychologists, The Texas Psychologists Licensing Act, and the rules of the Texas State Board of Examiners of Psychologists.  
  2. Forensic assessments conducted through Legal Consensus PLLC are conducted with the highest regard for the ethical standards for licensed psychologists and the ethical standards for forensic psychologists
  3. Alissa Sherry and her corporation would be as legally, professionally, and financially independent of the parties as possible.  In this way the examiner maintains his/her personal integrity
  4. Alissa Sherry and her corporation would provide an independent, neutral, objective examination

Sherry specifically did not complete her contract within the above scope of the evaluation by violating the following laws and codes:

The Relevant and Controlling Statutes and Board Rules

  • The determination of whether or not Legal Consensus fulfilled or breached its contractual obligations requires the Court to consider the applicable contract terms, the relevant statutes, Board rules, and the American Psychological Association (“APA”) Ethical Principals and Code of Conduct applicable to the Legal Consensus Fee Agreement:

  • Tex. Fam. Code:
    • §107.0512. SOCIAL STUDY EVALUATOR: CONFLICTS OF INTEREST AND BIAS.
      • (a) A social study evaluator who has a conflict of interest with any party in a disputed suit or who may be biased on the basis of previous knowledge, other than knowledge obtained in a court-ordered evaluation, shall: (1) decline to conduct a social study for the suit; or (2) disclose any issue or concern to the court before accepting the appointment or assignment.
      • b) A social study evaluator who has previously conducted a social study for a suit may conduct all subsequent evaluations in the suit unless the court finds that the evaluator is biased.
    • §107.0513. GENERAL PROVISIONS APPLICABLE TO CONDUCT OF SOCIAL STUDY AND PREPARATION OF REPORT.
      • (a) Unless otherwise directed by a court or prescribed by a provision of this title, a social study evaluator’s actions in conducting a social study shall be in conformance with the professional standard of care applicable to the evaluator’s licensure and any administrative rules, ethical standards, or guidelines adopted by the state agency that licenses the evaluator.
      • (c) A social study evaluator shall follow evidence-based practice methods and make use of current best evidence in making assessments and recommendations.
      • (e) To the extent possible, a social study evaluator shall verify each statement of fact pertinent to a social study and shall note the sources of verification and information in the report.
    • §107.0514. ELEMENTS OF SOCIAL STUDY.
      • (a) The basic elements of a social study under this subchapter consist of:
        • (2) an interview, conducted in a developmentally appropriate manner, of each child at issue in the suit who is at least four years of age;
        • (7) assessment of the relationship between each child at issue in the suit and each party seeking possession of or access to the child.
      • (b) The additional elements of a social study under this subchapter consist of:
        • (1) balanced interviews and observation of each child at issue in the suit so that a child who is interviewed or observed while in the care of one party to the suit is also interviewed or observed while in the care of each other party to the suit;
        • (2) an interview of each individual residing in a residence subject to the social study;
        • (3) evaluation of the home environment of each party seeking conservatorship of a child at issue in the suit or possession of or access to the child, regardless of whether the home environment is in dispute.
      • (c) A social study evaluator may not offer an opinion regarding conservatorship of a child at issue in a suit or possession of or access to the child unless each basic element of a social study under Subsection (a) has been completed.
    • §107.107 provides that: “before accepting appointment as a child custody evaluator, the person must disclose to the court, the parties’ attorneys, any conflict of interest, any relationship or confidence or trust the person believes the person has with an attorney in the suit, and or any other information relating the persons relationship with an attorney in the suit that could affect the ability of the person to act impartially in conducting the child custody evaluation. After appointment, the person shall immediately disclose to the court any conflict of interest.”
    • §107.108
      • §107.108(a) provides that: A child custody evaluator’s actions must be in conformance with the professional standard of care applicable to the evaluator’s license and any ethical standards or guidelines of the licensing authority that licenses the evaluator.
      • §107.108(c) provides that: A child custody evaluator shall follow evidence-based practice methods, and make use of current best evidence in making assessments and recommendations.
      • §107.108(d) provides that: A child custody evaluator shall disclose to each attorney of record any communication regarding a substantive issue between the evaluator and an attorney of record representing one of the parties. 
      • §107.108(e) provides that: A child custody evaluator shall verify each statement of fact pertinent to a child custody evaluation and shall note the sources of verification and information in the report.
      • §107.108(f) provides that: A child custody evaluator shall state the basis of the evaluator’s conclusions, in the extent to which the information obtained limits the reliability and validity of the opinion and the conclusions and recommendations of the evaluator.
    • §107.109(d) provides that: The additional elements of a child custody evaluations consist of balanced interviews and observations of each child.
    • §107.112 (c) provides that: Except for records obtained from the department in accordance with Section 107.111, a private child custody evaluator shall, after completion of an evaluation and the preparation and filing of a child custody evaluation report under Section 107.113, make available in a reasonable time the evaluator’s records relating to the evaluation on the written request of an attorney for a party, a party who does not have an attorney, and any person appointed under this chapter in the suit in which the evaluator conducted the evaluation, unless a court has issued an order restricting disclosure of the records.
    • §107.115 provides that: The court shall award the person a reasonable fee for the preparation of the evaluation that shall be imposed in the form of a money judgment.
  • Texas Board Psychology Rules (Tex. Admin. Code Title 22 part 21 §461.1 et seq) 
    • 463.8- Licensed Psychological Assistant
      • must practice under the supervision of a licensed psychologist and may not practice independently, unless meet certification standards
  • 465.9 Competency

(a) Licensees maintain current knowledge of scientific and professional information that ensures competency in every area in which they provide services.

(b) Licensees provide services in an unfamiliar area or involving new techniques only after first undertaking appropriate study and training, including supervision, and/or consultation from a professional competent to provide such services.

(c) In emerging areas in which generally recognized standards for preparatory training do not exist, licensees take reasonable steps to ensure the competence of their work and to protect patients,clients, research participants, and other affected individuals from the potential for harm.

(d) Licensees are responsible for ensuring that all individuals practicing under their supervision are competent to perform those services.

(e) Licensees who delegate performance of certain services such as test scoring are responsible for ensuring that the entity to whom the delegation is made is competent to perform those services.

(f) Licensees who lack the competency to provide particular psychological services to a specific individual must withdraw and refer the individual to a competent appropriate service provider.

(g) Licensees refrain from initiating or continuing to undertake an activity when they know or should know that there is a substantial likelihood that personal problems or conflicts will prevent them from performing their work-related activities or producing a psychological report in a competent and timely manner. When licensees become aware of such conflicts, they must immediately take appropriate measures, such as obtaining professional consultation or assistance in order to determine whether they should limit, suspend, or terminate the engagement in accordance with Board rule §465.21 of this title (relating to Termination of Services)

  • 465.10 provides that: Basis for Scientific and Professional Judgments:
    • Licensees rely on scientifically and professionally derived knowledge when making professional judgments.”

  • 465.11- Informed Consent.

(a) Except in an inpatient setting where a general consent has been signed, licensees must obtain and document in writing informed consent concerning all services they intend to provide to the patient, client or other recipient(s) of the psychological services prior to initiating the services, using language that is reasonably understandable to the recipients unless consent is precluded by applicable federal or state law.

(b) Licensees provide appropriate information as needed during the course of the services about changes in the nature of the services to the patient client or other recipient(s) of the services using language that is reasonably understandable to the recipient to ensure informed consent.

(c) Licensees provide appropriate information as needed, during the course of the services to the patient client and other recipient(s) and afterward if requested, to explain the results and conclusions reached concerning the services using language that is reasonably understandable to the recipient(s).

(d) When a licensee agrees to provide services to a person, group or organization at the request of a third party, the licensee clarifies to all of the parties the nature of the relationship between the licensee and each party at the outset of the service and at any time during the services that the circumstances change.

(f) At any time that a licensee knows or should know that he or she may be called on to perform potentially conflicting roles, the licensee explains the conflict to all affected parties and adjusts or withdraws from all professional services in accordance with Board rules and applicable state and federal law. Further, licensees who encounter personal problems or conflicts as described in Board rule 465.9(i) of this title that will prevent them from performing their work-related activities in a competent and timely manner must inform their clients of the personal problem or conflict and discuss appropriate termination and/or referral to insure that the services are completed in a timely manner.

  • 465.13
  • 465.13(a) In General:
    • 465.13(a)(1) provides that: Licensees refrain from providing services when they know or should know that their personal problems or a lack of objectivity have the potential to impair their competency or harm a patient, client, colleague, student, supervisee, research participant, or other person with whom they have a professional relationship.
    • 465.13(a)(3) provides that: Licensees do not exploit persons over whom they have supervisory evaluative, or other authority such as students, supervisees, employees, research participants, and clients or patients.
    • 465.13(a)(4) provides that: Licensees refrain from entering into any professional relationship that conflicts with their ability to comply with all Board rules applicable to other existing professional relationships.
    • 465.13(a)(5) provides that: Licensees withdraw from any professional relationship that conflicts, or comes into conflict with, their ability to comply with Board rules relating to other existing professional relationships.
  • 465.13(b) Dual Relationships:
    • 465.13(b)(1) provides that: A licensee must refrain from entering into a dual relationship with a client, patient, supervisee, student, group, organization, or any other party if such a relationship presents a risk that the dual relationship could impair the licensee’s objectivity, prevent the licensee from providing competent psychological services, or exploit or otherwise cause harm to the other party.
    • 465.13(b)(2) provides that: A licensee must refrain from a professional relationship where pre-existing personal, financial, professional, or other relationships have the potential to impair the licensee’s objectivity or have any other potential to harm or exploit the other party.
    • 465.13(b)(5): provides that A licensee considering a professional relationship that would result in a dual or multiple relationship shall take appropriate measures, such as obtaining professional consultation or assistance, to determine whether there is a risk that the dual relationship could impair the licensee’s objectivity or cause harm to the other party. If any potential for impairment or harm exists, the licensee shall not provide services regardless of the wishes of the other party.
    • 465.13(b)(6) provides that: A licensee in a potentially harmful dual or multiple relationship must cease to provide psychological services to the other party, regardless of the wishes of that party.
  • 465.15- Fees and Financial Arrangements
    • (a) (3) Licensees shall not withhold records solely because payment has not been received unless specifically permitted by law.
    • (b) Ethical and Legal Requirements.
    • (2) Licensees do not misrepresent their fees.
    • (3) Licensees do not overcharge or otherwise exploit recipients of services or payers with respect to fees.
  • 465.16
    • 465.16(b)(1) provides that: “Licensees verify… that every evaluation… recommendation… evaluation statement… is based on information and techniques sufficient to provide appropriate substantiation for its findings.”
    • 465.16(b)(3) provides that: “Licensees who… utilize psychological assessment techniques… do so in a manner and for purposes for which are professional or scientific-based.”
    • 465.16(c)(1) provides that: “Licensees include all information that provides the basis for their findings in any report in which they make findings or diagnoses about an individual.”
    • 465.16(c)(2) provides that: “Licensees identify limits to the certainty with which diagnoses, judgments, or predictions can be made about individuals.”
    • 465.16(c)(3) provides that: “Licensees identify various test factors and characteristics of the person being assessed that might affect their professional judgment… when interpreting assessment results, including automated interpretations.”
    • 465.16(c)(5) provides that: “Licensees provide opinions of the psychological characteristics of individuals adequate to support their statements or conclusions…”
  • 465.17
    • 465.17(e)(4)(A) Disclosure of Conflict and Bias provides that: “Licensees shall comply with all disclosure requirements set forth in Tex. Fam. Code Ann. §107.107.”
    • 465.17(e)(5)(A) Elements of Child Custody Evaluation provides that: “Licensees shall comply with Tex. Fam. Code Ann. §§ 107.108, 107.109, and 107.1101 when conducting child custody evaluations.”
  • 465.18
    • 465.18(a)(3) provides that: All forensic opinions, reports, assessments, and recommendations rendered by a licensee must be based on information and techniques sufficient to provide appropriate substantiation for each finding.
    • 465.18(b)(1) Limitation on Services- A licensee who is asked to provide an opinion concerning an area or matter about which the licensee does not have the appropriate knowledge and competency to render a professional opinion shall decline to render that opinion.
    • 465.18(c)(4) provides that Describing the Nature of Services. A licensee must document in writing that subject(s) of forensic evaluations or their parents or legal representative have been informed of the following:… (4) The identity of the party who will pay the psychologist’s fees and if any portion of the fees is to be paid by the subject, the estimated amount of the fees…
    • 465.18(c)(7) The approximate length of time required to produce any reports or written results
    • 465.18(e)(6)(A) provides: (A) Licensees shall comply with the requirements of Tex. Fam. Code Ann. §107.112  regarding:
  • (i) the disclosure of communications between evaluation participants;
  • (ii) the creation and retention of records relevant to the evaluation; and
  • (iii) access to evaluation records
  • 501.351- General Authority to Delegate

A- A psychologist licensed under this chapter may delegate to a provisionally licensed psychologist, a newly licensed psychologist who is not eligible for managed care panels, a person who holds a temporary license issued under Section 501.263…

B- Delegating psychologist remains responsible. Individual administering the test must inform each patient that the person is being supervised by a licensed psychologist.

C- The board may determine whether the test/service may be properly and safely delegated.

Texas Appeals Court Upholds Permanent Injunction Prohibiting Contact Between Father’s Girlfriend and Child

Texas Appeals Court Upholds Permanent Injunction Prohibiting Contact Between Father’s Girlfriend and Child

Originally published by Francesca Blackard.

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Generally, a permanent injunction is difficult to obtain and requires proof that certain requirements are met.  In Texas child custody cases, however, a court may be able to issue a permanent injunction, even if those requirements have not been met, if it finds that the injunction is in the child’s best interest.  In a recent case, a father appealed an injunction prohibiting him from allowing contact between his girlfriend and his child.

The parents had agreed to temporary orders prohibiting any unrelated adult in a romantic relationship with one of the parents from spending the night in a home with the child.  The temporary order also stated that the father’s girlfriend would not be around the child while the father had possession.

Following a mediated settlement agreement addressing all other issues, the trial court held a hearing to address this issue. The trial court granted an “injunction” prohibiting contact between the father’s girlfriend and the child without hearing evidence.  The mother’s attorney stated they had been unable to serve the father’s girlfriend with notice of the hearing.  The court indicated it was entering a “permanent morality clause” based on the girlfriend not testifying. The father’s attorney argued there was no evidence to support a permanent injunction.  The court stated it was a “moral clause,” not an injunction, but then heard evidence from the mother, the mother’s other daughter, and the process server.

 

The process server testified regarding his attempts to serve the girlfriend.

The mother’s 15-year-old daughter testified the father’s girlfriend had contacted her on Instagram and made negative comments about her mother.  The court allowed screenshots of the Instagram communications into evidence over the father’s objection that they were hearsay and had not been authenticated.

The mother testified the girlfriend had contacted her about her affair with the father.  She alleged the girlfriend had posted nude photos of herself online and had made social media posts about marijuana and alcohol.  She also testified the girlfriend and child got along well and she had no evidence that the girlfriend had ever harmed the child.

The father moved for rehearing after the court granted the “morality clause.” After the hearing, the trial court entered both a morality clause and an injunction.  The morality clause provided that no unrelated person of the opposite sex in an intimate relationship with a parent could spend the night when the child was in that parent’s care.  The permanent injunction enjoined the father from allowing the child to have any contact with his girlfriend.

The father appealed, arguing the injunction was not supported by proper evidence.  He argued the trial court should have excluded the daughter’s testimony because she was not disclosed as a witness.  Evidence that is not properly disclosed can generally not be admitted just to satisfy the interest of justice, but may be admitted if there is a good cause.  The mother argued that the Instagram messages were sent during the week before the hearing, and this timing constituted good cause not to supplement the discovery responses before the hearing.  The father argued he was unfairly surprised and prejudiced.  Some Texas appeals courts have held a trial court should admit testimony despite unfair surprise or lack of good cause for a delay in disclosure if admission of the evidence is in the best interest of the child.  Based on this standard, the appeals court found no abuse of discretion in the admission of the daughter’s testimony.

The appeals court also rejected the father’s argument that the Instagram messages should have been excluded as hearsay.  A statement is only hearsay if it is offered to prove the truth of the matter asserted.  The messages were not presented to prove the truth of the matter asserted.  The mother presented the negative statements about her not to prove they were true, but to show the communications had been made.  The communications were therefore not hearsay.

The father also argued there was not sufficient evidence to support a permanent injunction.  Generally, to get a permanent injunction, a party must show there is a wrongful act, imminent harm, irreparable injury, and no adequate remedy at law.  In child custody cases, however, a court may grant a permanent injunction that is in the best interest of the child even if all of these elements are not met.  The appeals court found no abuse of discretion in the trial court’s granting of the permanent injunction upon finding it was in the child’s best interest.

The father also argued that there was insufficient evidence to support the injunction.  The appeals court noted that sufficiency of the evidence was not an independent ground to overturn the injunction.  It is instead a factor in determining whether the trial court abused its discretion.

The mother’s daughter testified the father’s girlfriend made negative comments about the mother and the screenshots she provided reflected the nature of those messages.  The trial court could have found the child was at risk of being exposed to similar comments as those directed at her 15-year-old half-sister.  The mother had also testified she had spoken to the father about the girlfriend’s drug-related posts, and he indicated he was aware of her drug use.  The trial court could have found the girlfriend had used illegal drugs, that the father was aware of it, and that he was not opposed to the drug use.  The trial court also could have found the girlfriend presented a risk of promoting parental alienation.  The trial court could therefore have found that it was not in the child’s best interest to allow contact with the girlfriend.  The appeals court found no abuse of discretion in the issuance of the permanent injunction and affirmed the judgment.

If you are involved in a child custody matter, a skilled Texas custody attorney can help pursue any necessary court orders.  Set up an appointment with McClure Law Group by calling 214.692.8200.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Texas Court Finds Prenuptial Agreement Was Enforceable

Texas Court Finds Prenuptial Agreement Was Enforceable

Originally published by Robert Epstein.

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Texas law generally favors the freedom of contract.  This principle also applies to prenuptial agreements.  In Texas divorce cases, prenuptial agreements are generally valid and enforceable unless they were involuntarily signed or were unconscionable and signed without proper disclosures.

A wife recently challenged the enforceability of a prenuptial agreement. The couple met online while the wife lived in Vietnam.  When the husband visited Vietnam, he gave her a copy of the prenuptial agreement his attorney drafted.  The wife did not speak English, so she had it translated.  She requested a change to the agreement.

The wife came to the U.S. and told the husband she was pregnant a few months later.  He told her she needed to sign the agreement before they got married. The husband stated a paragraph was removed from the agreement based on the wife’s request.

 

He took her to a Vietnamese-speaking attorney for a consultation. The husband paid the fee, but was not there for the consultation.  The parties signed the prenuptial agreement in the attorney’s office after the consultation.

The wife filed for divorce in 2015.  The trial court found the prenuptial agreement was enforceable and incorporated it into the final divorce decree.  The wife appealed, arguing the agreement was unconscionable, involuntarily signed, and violated both federal law and the Texas Constitution.

In support of her unconscionability argument, the wife asserted she was pregnant “when it was made clear” she had to sign or go back to Vietnam.  She also argued it was unconscionable to “forc[e] a mother to accept a likely future in which her child would seldom see his father,” especially when both “would be at risk of shame and humiliation” in Vietnam.  She said she thought her child’s life would be better in Texas.  She argued it was unconscionable to require her to sign to avoid having to go back to Vietnam. She claimed taking her to a lawyer found in the yellow pages was just “window dressing.”  She asserted she was more unsophisticated than the husband and did not speak English.  She also argued he had not disclosed information about his assets and liabilities.  Finally, she argued it was a one-sided agreement.

When reviewing unconscionability, courts consider the circumstances, including available alternatives, bargaining ability, illegality or public policy against the contract, and whether it is “oppressive or unreasonable.” When reviewing prenuptial agreements, courts may consider age and maturity, business and educational backgrounds, and prior marriages.  The court will generally enforce a voluntarily-entered contract unless there is mistake, fraud, or oppression.

The wife knew the husband expected a prenuptial agreement before she met him in person. She testified they commonly discussed it after their engagement.  He gave her a copy when he was in Vietnam in the summer of 2007.  They executed the agreement in August 2008. The appeals court found she knew about the prenuptial agreement long before she arrived in the U.S. and became pregnant.

The court found the wife’s various reasons for not wanting to return to Vietnam did not make the agreement unconscionable. There was no evidence the mother or the child would be in danger there.

The appeals court also rejected the mother’s argument regarding her attorney. She argued the attorney could not have performed independent due diligence, such as finding out the property values.  The appeals court found no evidence that information was necessary or the wife did not already know it.  She testified she understood the terms of the agreement.

The wife argued the husband had not disclosed information about his assets and liabilities.  There was testimony the husband had disclosed.  Even if he had not, it would not make the agreement unconscionable.  Lack of disclosure is the second prong of the test and only matters once the agreement is found unconscionable.

The appeals court also rejected the wife’s argument she was less sophisticated and had less bargaining power.  Both parties were mature adults.  Although she had less formal education, the wife had owned and operated two businesses in Vietnam.

An agreement is not unconscionable just because it is one-sided or unfair. The appeals court found no evidence of mistake, fraud, or oppression.

There was no error in the trial court’s finding the agreement was not unconscionable.

The wife also argued the agreement was not voluntarily executed. In reviewing voluntariness, courts consider whether the party had an attorney’s advice, whether there were misrepresentations, what information was provided, and whether anything was withheld.  She argued her attorney had not had opportunity to study the agreement, analyze the information about the assets and liabilities, and “review the immigration agreements.”  The appeals court found no evidence the attorney did not have sufficient time to review the agreement.  Both the wife and the attorney testified she understood the agreement’s terms. She did not claim she received incompetent legal advice.

The appeals court rejected her claim the agreement was involuntary because it contained material misrepresentations regarding whether it disclosed the value of assets and liabilities.  There was evidence the husband had disclosed the information regarding the assets and liabilities.

The wife also argued she was under duress because she did not want to return to Vietnam.  The appeals court noted duress is only a defense to a contract if it involves a threat to do something the party has no right to do.  The husband did not have a legal duty to marry the wife, so his threat not to marry her if she did not sign did not constitute duress.

The wife argued the agreement violated federal law because it conflicted with the affidavit of support the husband signed.  She argued the affidavit created an obligation requiring the husband to use all of his assets to support her, while the prenuptial agreement only obligated him to use community property.  The appeals court found any obligation created by the affidavit ended when she became a citizen.  The appeals court also rejected the wife’s argument the agreement violated the Texas Constitution.

The appeals court affirmed the trial court’s judgment.

If you are facing a divorce involving a prenuptial agreement, an experienced Dallas divorce attorney can assist you.  Call McClure Law Group at 214.692.8200 to set up a consultation.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Spousal Maintenance Awards in Texas Divorce Cases

Spousal Maintenance Awards in Texas Divorce Cases

Originally published by Robert Epstein.

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A court in a Texas divorce case may only order spousal maintenance if certain conditions are met.  The court must then consider relevant factors in determining the duration, amount, and manner of the payments.  The other spouse may challenge a maintenance award if there is insufficient evidence to support a finding of eligibility for maintenance or if the trial court abused its discretion in ordering the specific award.

In a recent case, a husband challenged a maintenance award and the property division in his divorce.

Under Tex. Fam. Code Section 8.051, a spouse may receive spousal maintenance if he or she cannot earn enough income to meet his or her “minimum reasonable needs” due to certain specified circumstances.  In this instance, the applicable provision of the statute provides that a spouse may be eligible for maintenance if he or she does not have the ability to make sufficient income to meet his or her minimum reasonable needs and has been married for at least 10 years.

Maintenance is generally only available under this provision if the spouse has been diligent in trying to develop skills to provide for his or her minimum reasonable needs during the separation and while the divorce case is pending, but this is a rebuttable presumption.

The husband argued the court had not made sufficient findings regarding the wife’s minimum reasonable needs to support its maintenance order.  The court considered several factors and found the wife earned $76,000 per year from working full time.  The court also found good cause to require the husband to pay $1,500 per month in spousal support from March 2018 to May 2021.

The appeals court found the express findings made by the court supported an implied finding the wife was eligible for a maintenance award.  The appeals court also found evidence in the record supporting the implied finding.  The wife had testified she needed the support to adjust to maintaining a household and improving her career.  She also provided a budget showing her monthly expenses exceeded her gross-monthly income and the child support she received.  The appeals court found this evidence was sufficient to show that her combined income and child support did not meet her minimum reasonable needs.

With some evidence supporting a trial court finding the wife had rebutted the presumption against maintenance, the appeals court could not find the trial court had abused its discretion.

The husband also argued the evidence did not support the amount of the award based on the statutory factors in Tex. Fam. Code Section 8.052. Under the statute, courts are to consider several factors in determining the amount and duration of a maintenance award.  In this case, the trial court considered those factors.

The appeals court found evidence supporting the statutory factors.  The wife had spent most of the 19-year marriage supporting the husband in his education and career.  She testified she had worked part-time for several years so she could be home with the children.  She had to increase her hours since the divorce case was filed.  She testified she would have a hard time finding a similar position locally if she lost her current job and that her employment was limited by the geographic restriction on the children’s primary residence designation. She also testified to having a serious medical condition.

There was evidence the husband made approximately $193,000 per year.  They had used their retirement to buy their first house. The appeals court noted the husband had been able to fund his accounts in the years since, but the wife had not. The wife testified regarding her lack of retirement savings, and there was evidence of an account in her name with $15,325.91.

The appeals court found there was evidence relating to the statutory factors the trial court could have based its determination on regarding the amount and duration of the maintenance payments. There was no abuse of discretion as to the amount, manner, or duration of the maintenance award.

The husband also argued the trial court abused its discretion in awarding the wife 70% of the community estate.  The divorce was granted on the grounds of insupportability.  The wife had spent most of the marriage caring for the children as a homemaker and supporting the husband’s pursuit of his own education and career.  The appeals court noted that the wife’s job and the geographic restriction limited her ability to obtain other employment. Furthermore, most of the assets she received in the property division were not liquid.  She would not have immediate access to those funds if she or the children needed them. The appeals court found no abuse of discretion in the property division.

The appeals court affirmed the trial court’s judgment.

In this case, the appeals court found sufficient evidence to support the trial court’s order.  If you are facing a divorce, an experienced Texas divorce attorney will work with you to identify the evidence to support your case.  Call McClure Law Group at 214.692.8200 to schedule a consultation.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Jurisdiction in Texas Divorce

Jurisdiction in Texas Divorce

Originally published by Kelly McClure.

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In some Texas custody cases, the parents live near each other and where the case will be heard is not an issue.  In other cases, however, one parent has moved away and there may be a dispute over jurisdiction.  Although the child’s home state generally has jurisdiction, there are circumstances where the child does not have a home state.

In a recent case, a mother challenged the Texas court’s jurisdiction over the child’s custody.  The family lived in South Carolina when the child was born, but moved to Texas a few months later.  They went to Michigan to celebrate the child’s first birthday. The father said it was a vacation, but the mother said she planned to move to Michigan then.  They all went back to Texas, but the mother moved to Michigan with the child early the next month.

The father then filed suit seeking temporary child custody orders in Texas.  He sought the exclusive right to designate the child’s primary residence.  The Texas court entered temporary orders. The father added a divorce petition.

 

The mother responded with counter petitions and attached an Out-of-State Party Declaration stating she had not taken part in any other court case involving the child.  She subsequently filed for an emergency order in a Michigan court.  The Texas and Michigan courts communicated with each other and the Texas court had a hearing to determine if it had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).  Finding the father and child had significant contacts with Texas and substantial evidence regarding the child was available in Texas, the Texas court found it had jurisdiction.  The Michigan court rescinded its order and dismissed the mother’s complaint.  The Texas court granted the divorce and entered child custody orders.

The mother appealed the Texas court’s jurisdiction over child custody.  Pursuant to Tex. Fam. Code Ann. § 152.201, the home state has jurisdiction over an initial custody matter.  However, neither Texas nor Michigan was the child’s home state.  If no forum has home state jurisdiction, a Texas court may exercise jurisdiction if the child and a parent have a significant connection with the state, and there is substantial evidence regarding the child in Texas.  Specifically, there must be evidence of the child’s care, training, relationships, and protection.  The husband worked in Texas and the family had lived there four months.  However, there was no evidence of any relationships the child had in Texas.  Although the trial court found it sufficient, the appeals court noted it was “tenuous” evidence upon which to base jurisdiction.  The appeals court found “the more appropriate forum jurisdiction” was not applicable because there was no evidence that courts having jurisdiction had declined to exercise jurisdiction because Texas was more appropriate.

There is, however, a default jurisdiction, under which a Texas court can exercise jurisdiction if no forum has home state jurisdiction, significant connections/substantial evidence jurisdiction, or more appropriate forum jurisdiction.  Michigan was the only other potential forum, and it did not have home state jurisdiction.  There was no evidence other forums declined jurisdiction in favor of Michigan or that there were significant connections and substantial evidence in Michigan as of the date in question.

Finding the Texas court had default jurisdiction, the appeals court affirmed the judgment.

Jurisdiction in another state can mean you have to travel for the proceedings.  If you are dealing with a custody issue, a skilled Texas child custody attorney can fight for your rights.  Call the attorney’s at McClure Law Group at 214.692.8200 to schedule a consultation.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Due Process is a Thing? – My Advocate Center

Often in domestic law, especially in child custody matters, parents wonder why reasonable notice, ability to present evidence or things that make or break their right to be involved in their children’s lives seems to not matter.

Fairness is just glossed over like a sizzling ad campaign to make it seem safe to enter a legal process as a parent, but which fades after you make it far enough in past the storefront. It is not just a disappointment when laws providing for a fair process are not applied, it is traumatic. In watching the video of the oral argument shown below, you’ll see that the Georgia Court of Appeals panel is quite passionate about this subject.

This makes no sense in light of that passion:

I’ve actually heard lawyers in domestic circles say that due process does not matter or does not exist in family law, even though there are rules and there is plenty of case law that talks about the ramifications if a party is deprived of due process, if a specific civil right is denied. How can lawyers have this attitude that conflicts so dramatically with the beliefs of appellate court judges?

After years of seeing enormous, life-altering – and in a bad way for children and safe, loving parents – voids (a black hole likely to allow no safe return) when it comes to having opportunity to be heard and having rulings, let alone timely rulings, I was encouraged to see this issue argued so passionately in our Court of Appeals. I saw it because a news media team featured it on The Reveal, a unique show produced by Atlanta’s 11 Alive, and I hope it makes its way to the eyeballs, through the brains and into the hearts of our domestic lawyers and family court judges. Yes, I believe anything is possible.

Grab a seat and be ready to take notes. For sure send your comments through social media or contact me here.

How many more arguments of this kind would you like to see in our appellate courts where you can learn directly from our Judges this way? If you have a case you believe is heading towards oral argument which involves parental rights, relief to restore parent-child bonds and ensure due process in child custody and other domestic matters, please send me a note with a case number.

Thank you!

Deborah Beacham

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Texas Court May Not Make Substantive Change When Clarifying a Custody Order

Texas Court May Not Make Substantive Change When Clarifying a Custody Order

Originally published by McClure Law Group.

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Most Texas custody cases are between a child’s parents, but in some cases other family members may be involved.  In a recent case, an uncle challenged a modification of the access and possession terms of a court order related to his brother’s child.  Although the trial court expressed an intention to clarify the original order, the appeals court found it had improperly made a substantive change.

The child’s father is deceased.  In 2016, the father’s brother filed suit to be named as the child’s primary conservator.  The uncle and the mother ultimately reached an agreement, which was incorporated by the court’s order.  The order gave primary possession to the uncle and periodic possession to the mother.  The uncle had the right to request the mother undergo drug testing once a month.  She was required to appear for drug testing at a designated location within 24 hours of the uncle sending notice.  The uncle was prohibited from sending notice Friday through Sunday at 9:00 a.m. If the mother failed to appear within 24 hours, the results would be deemed positive.  If the drug test results were positive or deemed positive, the mother’s periods of possession would be suspended until there was a further court order.

The mother moved to enforce the order a month after it was entered.  She alleged the uncle did not make the child available to her during her time.  She sought criminal and civil contempt, additional periods of possession, and attorney’s fees.  She also asked the court to clarify the original order if it found any part of it was insufficiently specific to be enforced through contempt.

 

The trial court found the terms of the order were not sufficiently specific to be enforced by contempt.  The court added language requiring the uncle provide notice of the drug test “at a reasonable time” and give the mother 24 hours notice to comply. The court found the uncle in violation of the original order by failing to give the child to the mother on two occasions.  It also ordered him to pay $1,500 in attorney’s fees to the mother’s attorney.

The uncle moved for review of the attorney’s fees.  The judge confirmed the award but also specified it would be enforceable as both a debt and as child support.  The uncle appealed, arguing the court had not merely clarified the order but had made substantive changes to the terms.

A court may clarify a previous custody order, but may not generally modify a previous order unless certain conditions are met and the modification is in the child’s best interest.  A clarification cannot make substantive changes to the order.  Although a clarification can correct an error in the original judgment, it can only correct a clerical error, not a judicial error.  The clarification, therefore, cannot correct an error resulting from judicial reasoning.

The appeals court found the original order’s “possession and access terms were specific, non-ambiguous, and could be enforced by contempt.” The order allowed the uncle to request a drug test once a month.  It provided the method of the request and limited the times when he could request it.  The appeals court found the trial court had used judicial reasoning to add the requirement that the uncle send the request within reasonable time that gives the mother 24 hours notice.  The appeals court found the original text was unambiguous so the trial court did not have the authority to clarify.

The original order provided that a level of marijuana higher than 3.66 picograms would be deemed positive, but the modification added language limiting this provision to ingested marijuana. The appeals court found this was a substantive change.  The original order was unambiguous.

The appeals court struck the language purporting to clarify the previous order.

The uncle also argued there was no evidence that the enforcement of the order was necessary for the child’s physical or emotional safety or welfare, which would be required to enforce the attorneys fee award as child support.  The trial court did not find the uncle in contempt or enter a finding that enforcement of the original order was necessary to ensure the child’s health or welfare.  There was no evidence supporting characterizing the fee award as child support so the appeals court struck that portion of the order.

This case serves as a reminder that a Texas trial court’s ability to change a custody order is limited.  The court may not clarify an order by making a substantive change to its provisions, even if those provisions seem unfair.  An experienced Texas custody attorney can help you seek or oppose a clarification or modification of a custody order.  Call McClure Law Group at 214-692-8200 to schedule a consultation.

 

 

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Court Must Assign Value to Lease in Texas Divorce

Court Must Assign Value to Lease in Texas Divorce

Originally published by Robert Epstein.

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A trial court in a Texas divorce must divide community property in a just and right manner.  Property can be somewhat broadly defined as it relates to property division in a divorce case.  Many people do not realize that a lease of someone else’s property is subject to division in a divorce, unless the lease is shown to be separate property.

In a recent case, the wife challenged a property division that did not include a recreational lease held by the husband.  The wife appealed the property division, arguing error in the trial court’s division of property.  She argued the court failed to include a recreational lease in the community estate and that the court unfairly allocated the husband’s tax debt.  The court had allocated all of the tax debt to the husband, but the wife argued the court erred in using it to offset the value of the assets awarded to the husband.

At trial, there was evidence the husband signed a written lease for a ranch during the marriage.  The husband’s friend owned the property and testified the husband had helped him build or enhance some of the improvements on the property.  The owner testified he would sell the ranch to the husband for a significant discount and indicated he would extend the lease to the husband indefinitely as long as he paid the rent.

 

The wife argued the husband was an owner of the ranch and was hiding his ownership interest from the IRS.  The trial court found the husband did not own the ranch.  The wife moved for reconsideration, arguing the court should assign value to the lease.  The court rejected her argument.

The wife did not argue the husband had an ownership interest in the ranch on appeal.  She argued that the leasehold interest should have been included in the property division.  A lease of property acquired during marriage is generally subject to division unless it is shown to be separate property by clear and convincing evidence.  The ranch lease was executed during the marriage and extended beyond the divorce; therefore it was presumed to be community property.  No evidence otherwise was presented.  The appeals court found it was not within the trial court’s discretion to find the lease was not community property.  The court, however, should have determined if the lease had enough value to affect the division of the estate.

The trial court did not assign any value to the lease, and there was not sufficient evidence presented for it to do so.  Community property is generally valued at “market value.” That is, the amount a willing buyer who wants to but has no obligation to buy would pay a willing seller who wants to sell but is not obligated to sell.  If there is no market value, the parties may show the property’s actual value to its owner.

There had been evidence at trial of the market value of the ranch itself, but not the value of the lease.  The only related evidence was the amount the husband paid for rent, but there was no evidence regarding whether that amount represented the actual value of the lease, or if the husband had possibly received a good deal due to his relationship with the owner.  The appeals court also noted it was possible the nearly $200,000 the husband would pay in rent over the 10-year lease term could be greater than the value of the lease.  The appeals court found there was insufficient evidence to determine if the lease was a community asset, community debt, or was too inconsequential to have an effect on the property division.

The appeals court noted both parties have a responsibility to provide sufficient evidence regarding the community estate’s value to allow the court to divide the property in a just and right manner.  In some cases, courts have held that a party who fails to provide sufficient evidence of property’s value cannot later challenge the trial court’s division of the property on the grounds it had insufficient evidence.  The appeals court noted this type of waiver may be appropriate where there was some evidence of the property’s value or where the unvalued property would have little effect on the total division.  With no evidence of the lease value and its total omission from the property division, the waiver would not be appropriate here.  Without evidence of the value of the lease, the trial court could not achieve a “just and right” property division.

The appeals court affirmed the divorce, but reversed the property division.  Because the appeals court reversed and remanded for a new property division, it did not address the challenge regarding the tax liability.

If you are facing a complex high-asset divorce, the skilled Texas divorce attorneys at McClure Law Group can help you fight for a fair property division.  Call us at 214.692.8200 to talk about your case.

 

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Award of Retirement Increases in Texas Divorce

Award of Retirement Increases in Texas Divorce

Originally published by Kelly McClure.

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Retirement can be a complex issue in Texas divorce cases.  In some cases, retirement accounts may not be fully vested.  In others, retirement income may be subject to periodic increases.  When retirement income is subject to increases, the spouse required to make ongoing payments should be sure he or she understands how to calculate those payments in light of the increases.

A former couple recently ended up back in court more than a decade after their divorce due to a dispute over how to calculate retirement increases.  The couple married in 1976 and divorced in 1998, after the husband’s retirement from the military.  The wife was awarded $754.80 per month of the husband’s retirement, and 60% of all increases “due to cost of living or other reasons…”  The husband was ordered to name the wife beneficiary under the Armed Services Survivor Benefit Plan (SBP).  The wife was ordered to pay 40% of the cost of the SBP, which was to offset the retirement award the wife received.

In 2012, the wife informed the husband he had underpaid her.  His new attorney told him he had been calculating his payments incorrectly. He had been calculating the payment using a method that resulted in payment of 60% of all cost of living increases cumulatively.  After receiving advice from counsel, he began paying his wife 60% of the increases only in the first year they were received.

The wife petitioned to enforce the retirement award, claiming she had been underpaid.  The husband argued he had overpaid her and that she had not paid the SBP premiums.  At trial, the wife testified she was owed more than $7,000 and that she had paid the SBP premiums according to the prior ruling.  The husband did not provide evidence of the overpayment amounts or the SBP premiums he claimed were owed to him.

The court found that the wife was entitled to $754.80 per month as her share of the husband’s retirement, and 60% of any cost of living increase in the year it was first received.  The court awarded the husband $2,617.57, but did not state how it calculated that amount or how it was allocated between the overpayments and SBP premium underpayments.

On appeal, the wife argued the original decree required the husband to pay 60% of any increases cumulatively.  She also argued the evidence was insufficient to support the trial court’s finding she had not paid the SBP premiums as required.  The husband argued the trial court had correctly interpreted the original award.

The appeals court considered whether the trial court had sufficient evidence to exercise its discretion and whether the court erred in application of that discretion. Evidence is insufficient if there is a complete absence of evidence regarding a vital fact, the rules of evidence do not allow the court to give weight to the only evidence supporting a vital fact, there is a “mere scintilla” of evidence supporting a vital fact, or the evidence establishes the opposite of the vital fact conclusively. The court errs in the application of its discretion if it makes an arbitrary or unreasonable decision.

The appeals court had previously decided a case with similar language regarding increases in retirement income.  In that case, the appeals court held the wife was entitled to the fixed amount plus the percentage of the accumulated cost of living increases.  The appeals court referred to the husband’s argument that she only receive the percentage during the first year as “a tortured reading of the divorce decree.”  The appeals court noted that the wife’s share is based on the accumulated increase because the husband receives base retirement pay plus the accumulated adjustments.

The trial court abused its discretion in finding the wife was only entitled to the increases during the first year. The appeals court further found that the order improperly amended, modified, altered, or changed the substantive division of property in the divorce decree.

In its opinion, the appeals court rendered judgment clarifying the divorce decree to provide that the wife is entitled to “60 percent of all accumulated increases…”  The appeals court found the husband was entitled to nothing on his claim for overpayment of the retirement award.  It remanded the wife’s claim to the trial court for proceedings to determine the amount of the underpayments.

The appeals court then considered the SBP premium claim.  To succeed on his claim to enforce the premium obligation, the husband had to prove his wife failed to comply with the obligation and prove the underpayment amount.  The evidence presented on this issue indicated the wife deducted her premium obligation from the amount the husband owed her and paid him $138.43 each month since 2013.  There was no evidence in the record of missing premium payments.

The appeals court found “a complete absence of evidence” supporting the husband’s claim.  The trial court abused its discretion by finding the wife had not met her obligation when the evidence was legally insufficient to support such a finding.  The appeals court reversed the judgment awarding the husband on his claim for premium payments and rendered a judgment that he receive nothing for that claim.

This case clarifies that an award of increases in retirement income will likely be interpreted to require that the increase in payment to the spouse be ongoing and not limited to the first year unless there is language otherwise.  If you have a dispute with your former spouse over property division, an experienced Texas divorce attorney can help you understand your obligations and fight for your rights.  Call McClure Law Group at 214.692.8200 to schedule a consultation.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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