East Texas Appeals Lawyer & Attorney : Jeff Rambin Law Firm : Civil and Criminal Appeals : 12th Court of Appeals, Tyler, Texas

On July 25th, the Supreme Court of Texas issued five identical decisions indicating that it would hold off on deciding the constitutionality of a provision of the Family Code dealing with appeals from terminations of parental rights.  That's probably a hint to the Texas Legislature to address the issue in the next session.  All well and good.  But what should trial judges do while waiting for a new statute?

Well, two of today's twenty-two decisions from the Texas Supreme Court deal with appeals from terminations of parental rights.  One case, In the interest of G.B., et al., reiterates the high court's position that it will hold off on deciding the constitutional issues.  The other, In the interest of M.N., a child, offers some help for trial judges in these in-between times.

Under the Family Code, terminated parents have fifteen days to file their statement of appellate issues.  But is that fifteen days a hard-and-fast deadline, or may a trial court grant extensions?  Today, the Supreme Court of Texas said that trial courts have the authority to extend the fifteen day deadline.

But there was a lone dissent.  Rather than butcher Justice Willett's brief words, here they are

For better or for worse, the Legislature in Family Code section 263.405(b) set a firm fifteen-day deadline for filing a statement of points for appeal. Reasonable people can dispute the efficacy of this hard-and-fast deadline, but few can dispute its clarity.

I fully understand the Court’s desire for leniency in enlarging the fifteen-day deadline beyond the statute’s terms. Appealing the termination of one’s parental rights is serious business, and having such rights vanish because of a counsel’s (or pro se litigant’s) mis-calendaring is nigh unfathomable. On the other hand, every day of childhood is irreplaceable, and society benefits when children are placed in safe, secure and loving homes as quickly as possible.

The Legislature wanted these cases to proceed with alacrity, reducing post-judgment delay by barring appellate consideration of tardy points. I would take lawmakers at their word: fifteen days means fifteen days. Squeezing out delay, however, does not permit squeezing out due process. It is one task to honor a fast-tracking statute’s unambiguous text and refuse to judicially rewrite it under the guise of construction. It is quite another to examine whether that text, however plain, unconstitutionally restricts due process or other guarantees. Terminating parental rights cannot warrant terminating constitutional rights.

I would (1) hold that court-made rules of procedure do not trump the Family Code’s fifteen-day deadline and then, assuming preservation, (2) confront head-on whether this statutory deadline violates Durham’s due-process rights or any other constitutional provision.  Because the Court does neither, I respectfully dissent.

 

In a footnote, Justice Willett notes that the Supreme Court of Texas has granted review of a petition squarely presenting the constitutional questions.  I still stand by my earlier prediction that the issue won't be decided until the Legislature takes another look at this.  But I could be wrong.  The 81st Regular Session of the Texas Legislature convenes on January 13th, 2009.  If there aren't any good bills in the works on day one, Justice Willett may have an easy time of bringing other Justices over to his way of thinking.

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In the interest of A.T.S. and M.D.S. (Published Memo): Termination of parental rights with another constitutional challenge to  the Family Code's indigent parent provisions. 

The Tyler court holds that the Family Code Section 263.405(i) requirement of statements of appellate issues does not prevent parties from appealing matters that come up after the statements are filed.  In this case, it's the trial court's findings of fact and conclusions of law that were entered after the statements were filed.

The terminated parents had alleged that the Family Code was unconstitutional to the extent that it required them to see into the future.  It doesn't, so it isn't.

The parents got to present their appeal.  But it was denied.  The Tyler court goes to great lengths to set out the drug/un-under employment/non-compliance with CPS "family plan" evidence that supports the trial court's decision to terminate parental rights.

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In re Tieri (Published): A two front custody battle.  On the one hand, there's New Jersey where the couple and the children lived for most of their lives.  On the other, there's Texas, where the mother, kids, and for a brief period, father lived as the marriage unraveled.  The father files for divorce in New Jersey and he gets custody there.  The mother files in Texas, and she gets custody here.  So it comes down to which court has jurisdiction.  It's a Uniform Child Custody Jurisdiction and Enforcement Act case raising two questions:

First, under the six month consecutive residency requirement of Tex. Fam. Code Ann. § 152.102(7), does a temporary absence of the children from the State of Texas a.) not matter as long as it meets the “temporary” threshold; b.) “freeze” the six month clock until the children come back to Texas; or c.) require a restart of the clock at zero?

The answer is most likely “c,” although parts of the decision could be read to mean “b”.

Second: If a custody proceeding is voluntarily dismissed in one state, can another state assume jurisdiction over custody as though the first custody proceeding had never been filed?

No.  Even though the case has been dismissed, the first state retains jurisdiction unless, along with the dismissal, it entered a specific finding that it has lost jurisdiction (for example, because neither parent lives in the state anymore).

2006

• January: Mother brings the kids from New Jersey to Texas.
• February: Father files divorce in New Jersey.
• March: While the mother and children are still in Texas, the New Jersey court awards custody to the father.
• April: Mother and children return to New Jersey because they’ve been ordered to appear at a hearing.  Other hearings are set, and they stay in New Jersey for somewhere between 22 to 26 days.  Mother and father reconcile.  Father dismisses New Jersey divorce.  All go to live in Texas.
• August: Father leaves Texas. Mother files for divorce in Texas.
• September: Texas court denies father’s special appearance. Asserts jurisdiction.
• October: Texas court names mother sole temporary managing conservator, denies visitation to father pending further order.

2007

• February: New Jersey court, on father’s petition, reinstates the New Jersey divorce.  New Jersey court reopens case on grounds that the mother had fraudulently induced the father to dismiss it. In other words, she never had any real intention of reconciling.  New Jersey court acknowledges that the Texas court has asserted jurisdiction, and refuses to rule on custody unless the Texas court relinquishes jurisdiction.  As for itself, the New Jersey court does not enter an order relinquishing jurisdiction or finding that the circumstances have (or had at any point in this process) deprived it of jurisdiction.
• April: Father files a motion in Texas to dismiss under UCCJEA.
• August: New Jersey court grants the divorce without deciding custody.  Texas court holds a telephonic hearing including both courts and counsel from both states.
• September: Texas court denies the father’s UCCJEA motion, holding that, at the time of the Texas divorce, the children had lived with the mother for six months, and in Texas for eight months (considering the their April ’06 presence in New Jersey as temporary).
• December: The father files a petition for writ of mandamus in Tyler.

The record is silent about what happened between September and December. The opinion doesn’t discuss issues of waiver and delay, so I’m guessing that there were motions for rehearing before the trial court. In any event, the Tyler court reviews the questions of law de novo. Since the children went back to New Jersey for a period, and since the New Jersey court didn’t enter an order waiving jurisdiction as part of the voluntary dismissal, New Jersey, not Texas, retains exclusive jurisdiction.
 

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Hohn v. Hohn (Published): Divorce dispute over what counts as the present value of the husband's interest in a partnership, and what counts as the husband's future earnings.  As Robin Williams once quipped: "Ah, yes, divorce ... from the Latin, meaning to rip out a man's genitals through his wallet."

Lest anyone accuse me of coarsening the public discourse with that observation, my defense is that I read it in the Economist.

As the Economist notes, some are expecting a rush to the divorce courts as the spouses of high earners try to get their divorce based on the earnings history of their spouses, before the reality of the sinking markets shows up in the form of paltry Christmas bonuses, etc.  For the Gotham big-shot attorneys representing the titans of Wall Street, this case out of little old Tyler might prove helpful.

The husband in this case is a partner at one of the firms that represented the State of Texas in the tobacco litigation.  The attorney and the firm as a whole are very successful.  They've got another big case in the works.  And that's what the fight is over.  The wife and her expert consider the huge fees that the firm might earn as good as in the bank, making the husband's current stake in the firm (which is community property) all-the-more valuable.  The Tyler court disagrees. 

Before getting to the ultimate conclusion, the Tyler court notes that the firm's partnership agreement provisions about what the husband would get if he were to withdraw from the firm do not control the court's valuation of his present interest in the firm.  Also, the trial court did not, in general, abuse its discretion in allowing the wife's expert to testify.  The expert had testified to the value of interests in professional firms before (including a prior divorce involving the same firm).  His choice of the income method of valuation over an asset-based method was a choice favored by other experts.

But the wife's expert included potential fees the firm might earn on the cases "in the works" in calculating the husband's current stake.  In the words of the Tyler court: "Revenue from these cases is no more than an expectancy interest and any money to be received constitutes future earnings to which [the wife] is not entitled."  The case is remanded for a re-division of the marital estate.

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There are five opinions from the Supreme Court of Texas this morning.  One (In re S.K.A., et al) is from Tyler.  They're all one line per curiam opinions.  Here's the full text:

The petition for review is denied. In denying the petition, we neither approve nor disapprove the holding of the court of appeals regarding the constitutionality of Texas Family Code section 263.405(i).

I've posted before about this section of the Family Code.  Parents whose rights have been terminated for child abuse or neglect must do more than what is usually required to file an appeal.   They must file a statement of their grounds for appeal within fifteen days after the trial judge signs the order terminating their parental rights.

The cases denied today challenged the constitutionality of that requirement.

The case I posted about earlier challenged the constitutionality of that requirement as it applies to indigent parents, who can't get a free record of the proceeding before the trial court until after the fifteen days has already expired.  The earlier post gives more extensive background into this field.  So now that I've set it up, here is the link.

What do today's cases mean?  I take them as a shot across the bow to the Texas Legislature.  And it's not a subtle one.  I mean, really, five opinions, all the same, they're the only ones this week, with "we neither approve or disapprove" language that would have been inherent from a plain, one-word denial (which for non-lawyer readers would mean that the Supreme Court "is not satisfied that the opinion of the court of appeals has correctly declared the law in all respects, but determines that [the case] presents no error that requires reversal or that is of such importance to the jurisprudence of the state as to require reversal ....).  

For a while there, it looked like the FLDS cases were going to bring this issue to a head in a very visible way, perhaps forcing the Supreme Court of Texas to decide the issue.  While the heat has been turned down on the FLDS pressure cooker, the Supreme Court has made it clear that they've got some questions about the Family Code, and would prefer that the Texas Legislature handle the matter.

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In Friday's Orders of the Supreme Court of Texas, there was one Tyler case, In re Frost.  It's the divorce case where the husband and his attorney went into the wife's residence when the wife was out of town and conducted some "do it yourself" discovery. 

The wife had changed the locks on that residence.  So, in order to get into the house, the husband got a locksmith to make him a duplicate of the new key.  The wife figured that the changed locks (and the fact that the husband didn't ask her for a key) showed that the husband and his attorney should not have gone into the house.  But since they did, she figured that the husband's attorney had made himself a fact witness, and should be disqualified from continuing as counsel.

The trial court agreed and disqualified.  The Tyler court didn't and, via mandamus, reversed the trial court.  The Tyler court ruled that there were no temporary orders in place specifically concerning the residence, and that the wife had failed to show how she would be harmed by the husband's attorney continuing in his advocacy role.  The wife tried to get the Supreme Court of Texas to reinstate the trial court's decision.  The Supreme Court requested a response from the husband, but ultimately denied the wife's request.

This case, by far and away, has generated more interest than any single case on the blog.  It's easy to see why.  Everyone, lawyer or not, understands the drama inherent in divorce.  And the lawyers I've spoken to were interested because disqualification was at stake, and because this decision bears on what is and isn't fair game in family law cases.  So, if you're just plain interested, or if you've got a case with similar discovery or disqualification issues, here are the redrafted petition, the response, and the reply.

In the interest of full disclosure, I was involved behind the scenes in the redrafted petition.  I offer my congratulations to J. Bennett White, the husband's counsel, and to his associate, Chris Massey, who worked on the briefing before the Supreme Court.

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The only case on July 17th's Supreme Court  of Texas Order List is a denial of mandamus that leaves open some questions on a trial court's ability to grant "partial" new trials.  It's In re Mary Jane Barton, a case out of the 7th Court of Appeals in Amarillo.  But there's an East Texas connection. 

A couple got divorced in Potter County, Texas (Amarillo).  Apparently, that's where they lived during their marriage.  The divorce decree made the husband and wife joint managing conservators of their child.  The wife was given the authority to pick the child's primary residence.  But that authority was limited to the counties in the Amarillo area so long as the husband lived there.

This was a problem for the wife.  While the divorce was pending, she and the child had moved to East Texas.  Specifically, Gilmer, Upshur County, Texas. (Home of the Yamboree)  The opinion doesn't say, but I'd bet that's where the wife's family is from.  In the month after the divorce decree was entered, she didn't exactly go rushing back to Amarillo to find a job and a house.  Which is to say: She stayed in Gilmer.

Before the Potter County trial court's jurisdiction expired, the husband moved for, and got, a partial new trial of the divorce on the limited issue of which parent would get to establish the primary residence of the child.  The wife objected, and eventually filed a mandamus proceeding, on grounds that the trial court couldn't reopen that issue without also reopening the issue of the geographic restrictions on that right.  The opinion doesn't say what the wife wanted to do on the geographic issue.  Maybe she wanted the husband to be pinned down to a particular Amarillo area location.  Or maybe she wanted a complete role reversal, as in: "OK, hubby, you get to pick the primary residence, but it has to be in Upshur County."

The Amarillo court notes that the wife was tardy in bringing her mandamus action.  That alone would justify their denial of her mandamus.  But the Amarillo court also reaches the merits, stating that the trial court did not abuse its discretion by granting a new trial just on who was going to pick the child's residence without reopening any geographic limitations on where that pick could be made.

The Supreme Court of Texas, without issuing an opinion, denied the wife's attempt to reverse the Amarillo court.  So the trial court's judgment stands.

The issue of partial new trials has vexed appellate courts.  There's a Rule of Appellate Procedure on the subject, but the rule is more of a starting point than a finish line.  Tex. R. App. P. 44.1(b) provides that:

If the error affects part of, but not all, the matter in controversy and that part is separable without unfairness to the parties, the judgment must be reversed, and a new trial ordered only as to the part affected by the error. 

To me, that's basically a statement of "use your common sense."  Which isn't much help because one person's common sense is another's lunacy.  Rule 44.1(b) provides one specific example:

The court may not order a separate trial solely on unliquidated damages if liability is contested.

That's very helpful.  But if you sense the potential for a partial new trial in your case, get ready for some research and some briefing, because the rest of the examples are in the caselaw like In re Barton.

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In the Interest of JM, JJ, JJ & JJ (Published Memo): Parent's appeal of termination of parental rights as to four children is denied because, though the terminated parent filed a motion for new trial, the terminated parent did not file a required Tex. Fam. Code Ann. § 263.405(b) statement of issues for appeal.  It's an odd case to be published.  I guess publication is warranted as a word to the wise on two fronts. First, the Tyler court will enforce the statute. Second, the Tyler court will entertain arguments about the constitutionality of the statute, but only if you're prepared.  Constitutional challenges are big legal fish, so don't show up late with a Zebco.

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Elmakiss v. Elmakiss (Published Memo): Divorce case with good run-down of conservatorship and possession standards, as well as the hurdles for making a reimbursement claim.

Conservatorship: In a bench trial, the mother, Ruth, overcame the presumption in favor of joint managing conservatorship.  She was named the sole managing conservator of their now ten year old child.  The court-appointed psychologist appears to have played a big role in the trial court's decision and the Tyler court's affirmation.

The father, Yakov, was appointed the possessory conservator.  The Tyler court affirms.  The evidence showed that the parents had difficulty making joint decisions.  On the element of encouraging a positive relationship, the Tyler court found that: "Yakov turned down opportunities to spend more time with his child and was openly hostile to Ruth and any positive outreaches she made to him for the benefit of his relationship with [the child]."  Thomas Allen was the psychologist appointed by the trial court.  The Tyler court recounted Allen's testimony that: "[Yakov] was quick to become tearful and upset, a not uncommon way to displace guilt onto a child."  Allen recommended that Ruth be the sole managing conservator.  Based in part on Allen's testimony, the Tyler court found that there was no abuse of discretion in the trial court's decision.

Possession: In addition to going against the presumption in favor of joint managing conservatorship, the trial court went against the presumption in favor of the standard possession order.  By his own admission, most of Yakov's visits with the child consisted of watching movies on an in-car video system, either at the lake or at a Dairy Queen.  That doesn't address the child's developmental status or needs.  They didn't go to Yakov's house because, apparently, he didn't have one. Allen, the psychologist, testified that Yakov had hold him that he was living in a trailer parked at a friend's house.  The trailer did not have running water or a toilet.  What's more, Yakov asked the child to keep secrets from the mother, including the fact that a dog had bitten the child during one of the visits.  And Ruth's testimony counts too.  When assessing the trial court's decision, the Tyler court considered Ruth's testimony that Yakov was an "emotional bully" in his dealings with the child.  Taken together, the trial court didn't abuse its discretion by imposing visitation restrictions in excess of the standard possession order.

For the property and child support issues:

Continue Reading...

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In the interest of RDG and In the interest of TDM (Published Memos): Texas Family Code § 263.405 may be unconstitutional to the extent that it requires indigent parents whose rights have been terminated to state their grounds for appeal before they get the trial court record.  I say "may" be unconstitutional because, after the parents here got the record, they didn't find any appellate points they had missed.  The Tyler court dismissed the appeals for that reason.  The Tyler court did not decide the constitutional question.  But the tea leaves in these companion decisions make for interesting reading.  This issue has ramifications for the FLDS proceedings.

Background: Say that a husband beats his wife and is convicted of assault.  He appeals that conviction.  While his appeal is pending, the wife is thrown in jail, and her efforts to divorce the bum are held in limbo.  Outrageous, isn't it?  That could never happen, could it?

Well, when a parent's rights are terminated by the Texas Department of Family and Protective Services, it is the kid who is stuck in foster care -- unable to be adopted because of the chance, however remote, that a long and seemingly incomprehensible legal process will give her back to her parents.  Technically, the parent's rights have been "terminated" at the trial level.  In reality, the parent can use the appeals process to exercise considerable control over the child.

That doesn't sit well with the Texas Legislature.  Over the past several sessions, they've adopted measures to shift the balance away from the parent's right to appeal, and towards the kid's ability to move on.  See here, here, here, and here.  For the most part, those measures are combined in Texas Family Code § 263.405.  As always, it's up to the courts to hash out the details of new statutes ...

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Stoker v. Stoker (Published Memo): Under the abuse of discretion standard, a court of appeals defers to the trial court's assesment of the evidence.  But there has to be evidence.  In this post-divorce receivership case, there was no evidence supporting the appointment of a receiver to sell the former marital residence.  The only thing in the record was argument of counsel.  Therefore it was abuse of discretion to appoint a receiver.

OK then, what evidence is needed to support the appointment of a receiver?

Good question.

A trial court's authority to appoint a receiver stems from Texas Family Code, section 6.502(a)(5).  But, while that statute gives the authority, it doesn't say when it should be exercised.  So the courts have tried to "extrapolate" what proof should be required.  They haven't come up with an agreed list of factors yet.  Instead it's just a series of ad hoc decisions.  Most courts tend to agree that you need to show that: 1.) some sort of harm that will come to the property (or its value) if a receiver isn't appointed, and 2.) a less harsh remedy would not be able to prevent that harm.

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In the Interest of TB and JW (Published): This short opinion was most likely published as a word to the wise: If you are appealing the termination of parental rights by the Texas Department of Family and Protective Services (DFPS), you’ve got to file a Tex. Fam. Code § 263.405(b) statement of points on which you intend to appeal. The pro se appellant here did not file that statement, so his appeal was dismissed, and the termination of his parental rights affirmed.

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Edmonds v. Gray & In re Edmonds (Published Memo):  Appointment of a receiver is within the trial court’s judgment enforcement power.  Divorce decree provided that a Lake Tyler East house would be sold for an “mutually agreed” price. Initially, the exes did agree on a listing price, but then the house sat on the market and they couldn’t agree on "how low to go" to get it sold. The court’s appointment of a receiver to sell the house was in the nature of enforcement of the decree as written and was not an impermissible substantive modification of the decree’s terms. Tex. Fam. Code § 9.007(a).

Interlocutory appeal is the appropriate tool to challenge appointment of a receiver.  A challenge to the appointment of a receiver is specifically enumerated in the interlocutory appeal statute. Tex. Civ. Prac. & Rem. Code § 51.014(a)(1). That being said, incidental rulings in an order appointing a receiver are not covered by the statute, leaving mandamus as the only avenue of pre-trial review for those issues.  Such as the $6,000 monetary award to Edmonds.

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