TEXAS SUPREME COURT HOLDS PAYMENTS OUTSIDE THE CHILD-SUPPORT REGISTRY MAY BE CONSIDERED IN DETERMINING CHILD-SUPPORT ARREARAGE AMOUNT

Carmen E. Eiker

The Supreme Court addressed a matter of vital concern for many parents in the state of Texas—whether payments other than to a child-support registry will count toward discharging a court-ordered child-support obligation. The Court held that on the facts of this case, in a child-support enforcement proceeding, payments made directly to a child’s school, rather than to the court-ordered registry, will count in the determination of arrearages. This critical family law issue yielded four separate opinions—the majority, a concurrence, and two dissents. What follows will focus on the key takeaways from the majority ruling. But there will be much discussion of all the opinions among the family law bar.

Ochsner v. Ochsner
Supreme Court of Texas, No. 14-0638 (June 24, 2016)
Justice Willett (Opinion): Justice Guzman (Concurring); Justice Johnson (Dissent); Justice Boyd (Dissent)

ON SECOND THOUGHT, A SUIT AFFECTING PARENT-CHILD RELATIONSHIP CAN’T BE DIVORCED FROM THE DIVORCE SUIT

In the Interest of B.T.G, a Child
Dallas Court of Appeals, No. 05-13-00305-CV (April 6, 2016)
Justices Brown (Opinion on rehearing), Lang, and Whitehill

Carmen Eiker

At Wife’s request the trial court severed the divorce from the suit affecting the parent-child relationship (SAPCR). The divorce was granted and the SAPCR proceedings continued separately.

Wife requested the severance ostensibly because she needed to purchase a home and represented to the trial court that she could not do so as long as the divorce was pending. On the same day the court heard Wife’s motion to sever, it granted the divorce and the severance.

Texas Family Code § 6.406 mandates that if the parties to a divorce proceeding are parents of a child who is not under the continuing jurisdiction of another court, the divorce suit must include a suit affecting the parent-child relationship.

The Dallas Court of Appeals acknowledged that under Texas Rule of Civil Procedure 41 a trial court has broad discretion in ruling on a motion to sever. But the specific mandate of Family Code § 6.406 trumps the more general provisions of Rule 41. Severing a SAPCR from the divorce suit has the exact opposite result than is mandated by the family code, and was an abuse of discretion by the trial court. Because the severance was improperly granted, the divorce decree was interlocutory, and the case was remanded to the trial court. The Court of Appeals delivered this decision on rehearing, withdrawing and reaching a different result than its original opinion issued August 18, 2015, in which it had held the severance to be proper.

The appeals court’s decision was also supported by the well settled law in Texas that the property division cannot be severed from the divorce per Texas Family Code § 7.001, because the trial court is to consider the rights of the children in making a just and right division of the marital estate. When it comes to divorce, property, and children, the issues cannot be placed in silos to be dealt with separately, since as Aristotle observed “the whole is greater than the sum of the parts.”

ORDER INCREASING CHILD SUPPORT AND AWARDING APPELLATE FEES NOT “SMALL CHANGE” FOR DAD

In re Moore
Dallas Court of Appeals, No. 05-14-01173-CV (January 7, 2016)
Justices Lang-Miers (Opinion), Brown, and Schenck

Carmen Eiker

In this SAPCR case, Father appealed the trial court’s order modifying child support and awarding retroactive child support. Father also challenged by mandamus an award of conditional appellate attorney’s fees. The Dallas Court of Appeals consolidated the two matters and rejected both challenges.

The trial court found Mother had met her burden to prove a substantial and material change of circumstances, justifying a modification of child support, as her income had steadily decreased since the divorce while Father’s had steadily increased. This was true even though Mother’s decrease in income was the product of a fluctuating bonus arrangement that had existed, and arguably been taken into account, at the time of the divorce and original award.

Pursuant to Texas Family Code § 102.009, the trial court also awarded Mother conditional appellate fees of $52,500, subject to possible remittiturs of up to $50,000 if various steps on appeal did not occur (e.g., no oral argument). Father attempted to challenge the fee award by mandamus, but the Court of Appeals held mandamus was not the appropriate vehicle for attacking the attorney’s fees award in a temporary order pending appeal. Because the fee award was entered after final judgment, it was not an interlocutory temporary order, the appeal of which is prohibited by Texas Family Code § 102.009. The Court therefore found it had authority to review the temporary order as part of the appeal, and mandamus therefore was not necessary. Father argued that the testimony of Mother’s attorney as to his general knowledge of the work necessary for the appeal and a summary exhibit of the work and fees were not sufficient to support the fee award. The appeals court disagreed, noting that the summary exhibit was introduced without objection, and further observing that, “[u]nder the traditional, non-lodestar method of proving up the reasonableness of attorney’s fees,” specific testimony as to the number of hours worked or hourly rate of the attorney is not required for a court to award fees. Instead, the presence or absence of such information goes to the weight of the evidence.

ATTORNEY’S FEES ARE NOT COSTS, EVEN IN FAMILY COURT

In the Interest of M.A.M, a Child
Dallas Court of Appeals, No. 05-14-00040-CV (October 8, 2015)
Justices Lang, Stoddart (Opinion), and Schenck

Carmen Eiker

Texas Rule of Civil Procedure 143 provides that a party seeking affirmative relief may be required to give security for “costs” before final judgment on motion of any party, officer of the court, or the court upon its own motion. In connection with a Mother’s counter-petition to modify the parent-child relationship, filed after Father sought to recoup excess child support payments, the trial court ordered the Father to pay Mother’s attorney’s fees as costs under Texas Rule of Civil Procedure 143. When Father did not pay the attorney’s fees as ordered, the trial court dismissed Father’s claims for affirmative relief and granted Mother’s counter-petition to modify.

On appeal, the Dallas Court once again adhered to established Texas precedent that “costs” do not include attorney’s fees. Drawing upon the Supreme Court’s recent decision in Nalle Plastics, the Court explained that the term “costs” ordinarily refers to fees or compensation fixed by law and collectible by officers of the court in the discharge of their official duties; it does not include attorney’s fees, which are recoverable only when provided for by contract or statute. In this instance, Mother had not pleaded a statutory basis for the fees under Texas Family Code § 156.005, which authorizes attorney’s fees in modification suits only if the court finds that the suit was frivolous or filed for the purpose of harassment. Also, the general attorney’s fees provisions for SAPCR cases, Family Code § 106.002, did not support the award of fees, because that statute was amended in 2003 to specifically delete language that had included fees “as costs.”

The appeals court therefore ruled that the trial court abused its discretion in striking Father’s pleadings under Rule 143 and granting Mother’s requested modification, and remanded the case for further proceedings.

LANDMARK U.S. SUPREME COURT DECISION ON MARRIAGE EQUALITY

Obergefell v. Hodges
Supreme Court of the United States, No. 14-556, 576 U.S. ___ (2015)
Justice Kennedy (Opinion) joined by Justices Ginsburg, Breyer, Sotomayor and Kagan; dissenting opinions by Chief Justice Roberts and Justices Scalia, Thomas, and Alito.

Carmen Eiker

The U.S. Supreme Court today ruled that the Fourteenth Amendment of the U.S. Constitution requires a state to license a marriage between two people of the same sex, and to recognize a marriage between two people of the same sex that was lawfully licensed and performed in another state. The Court found the right to marry was a fundamental liberty protected both under the due process and equal protection clauses of the Fourteenth Amendment. The Court issued a clear and unequivocal statement that same sex couples may now exercise the fundamental right to marry in all states.

While the statutes before the court were from the states of Michigan, Kentucky, Ohio, and Tennessee, the Court’s ruling would invalidate the current Texas Family Code section 2.001(b), which prohibits the issuance of a marriage license to persons of the same sex, and section 2.401(a), which limits the formation of an informal marriage, generally known as a common law marriage, to only a man and woman. The Court recognized the far reaching impact of marital status in many other areas, such as taxation, inheritance and property rights, medical decision-making authority, adoption, and health insurance.

UNSCRAMBLING THE EGG: FRAUD SUPPORTS RECONSTITUTING THE COMMUNITY ESTATE IN A DIVORCE CASE

Slicker v. Slicker
Dallas Court of Appeals, No. 05-13-01762-CV (May 21, 2015)
Chief Justice Wright (Opinion) and Justices Fillmore and O’Neill

Carmen Eiker

William and Phyllis Slicker were married for almost 40 years, with William controlling management of the community estate. Phyllis did not work during the marriage except in her husband’s business. She was not compensated for that work. Although William failed to comply with discovery requests, the record revealed there were large sums of community property for which he could not account, and a pattern of manipulating the marital estate so that certain items would be characterized as his separate property rather than community property. Phyllis alleged fraud on the community by William, and requested that the community estate be reconstituted pursuant to Texas Family Code § 7.009 in order for the court to make a fair and equitable division of the marital estate. The Court of Appeals found the trial court did not abuse its discretion in (i) reconstituting the community estate in the amount of $900,000 based on William’s waste and fraud, and (ii) awarding Phyllis a $275,000 judgment in that regard. The appeals court’s opinion contains a helpful analysis and discussion of relatively new Texas Family Code § 7.009, which was enacted in 2011 to provide for the reconstitution of the community estate if the trier of fact finds actual or constructive fraud on the community has occurred.

The court also affirmed the award of spousal maintenance of $3500 per month for ten years to be paid by William to Phyllis. Although 67-year-old Phyllis had taken a computer course and obtained some employment while the divorce was pending, she was unable to meet her reasonable minimum needs from her only source of income, a monthly social security payment of $665. The Court noted that the determination whether a spouse can meet his or her minimum needs is to be made based on the circumstances at the time the divorce is granted, and not based on whether he or she could do so at some point in the future. The court also held that “minimum reasonable needs” is not defined by the Texas Family Code § 8.051 and must be determined on a case-by-case basis.