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A family law appeal has three primary stages.  They are (1) perfecting the appeal, (2) briefing, and (3) submission.

Perfecting the appeal of a family law case is time-sensitive.  If the correct documents are not timely filed, the appellate court will not have jurisdiction of the appeal, and the appeal must be dismissed.

To perfect a family law appeal, the appellant normally files four documents:  (1) the Notice of Appeal; (2) the Request for Reporter's Record; (3) the Request for Clerk's Record; and (4) the Docketing Statement.  In addition, the appellant must pay a fee of $125 to the clerk of the appropriate appellate court.

Briefing the appeal takes place after the record (consisting of the Reporter's Record and the Clerk's Record) has been filed.  The appellant's brief normally is due 30 days after the last-filed part of the record.  The appellee then has 25 days within which to file a response, after which the appellant may file a reply within 20 days of the appellant so wishes.

Submission of the appeal is the final step.  "Submission" means formal presentation to the court of appeals.  Most appeals are not only briefed but argued orally to a panel of judges (if in the court of appeals) or to all nine judges of the Texas Supreme Court.

When an appeal is argued orally, the appellant's lawyer has twenty minutes to argue, then the appellee's lawyer has twenty minutes, and finally the appellant's lawyer has five minutes to argue in rebuttal.  These deadlines are strictly enforced by the appellate judges; a "green light/yellow light/red light" system is in effect, with the lights visible to the lawyers as they argue.

Because usually a number of months pass between briefing and submission, it is customary for counsel to write a letter to the clerk of court perhaps two weeks before submission to alert the court to relevant cases that have been decided since briefing.

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Family law appeals, like appeals in other civil cases, are taken under the Texas Rules of Appellate Procedure. Under those rules, most post-trial and appellate deadlines run from the date the judgment, or decree, is signed by the trial court.

To perfect an appeal, one must file a notice of appeal and a docketing statement. One also must order the reporter's record (the court reporter's transcription of the hearing or trial) and specify supplements to the clerk's record (what has been filed with the clerk of the court). These materials are filed with the court of appeals. The parties later submit briefs in accordance with detailed briefing rules and ultimately argue their cases before the court.

Special rules apply to family law appeals. Among them are:

If a parent wants to know exactly how the trial court calculated child support, the parent might need to make a special request to the court.

Appeals from the rulings of associate judges must be filed within three days of the date of hearing.

Termination and paternity cases are treated as accelerated appeals, which means that the notice of appeal must be filed earlier than in normal cases.

The reader should take care to determine whether any special rules apply to a particular case.

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"Collaborative Law" is a recent addition to Alternative Dispute Resolution techniques. It is designed to be less adversary than traditional divorce practice, with the goal of attempting to address each party’s needs in more detail than is possible at mediation or in trial. 

The distinguishing characteristic of Collaborative Law is that the attorneys and clients agree that if the process is not successful, the attorneys will withdraw, and the clients must obtain other counsel for litigation.

The Collaborative Law process begins with each of the spouses choosing an attorney. Then, a series of meetings between counsel and the parties begin. These meetings commonly are called joint sessions.

In Collaborative Law, the parties and the attorneys schedule a series of informal meetings at which all four will be in attendance, allowing discussions to be interrupted and resumed later if difficulties or tension arise, with no significant time or momentum being lost before the next meeting.

Lawyers using a collaborative approach agree not to litigate the divorce if a settlement is not reached, removing the incentive for a "win at all cost" approach by either side. Discovery is supplanted by an agreement among the parties to voluntarily disclose information, and parties pledge to work to resolve the case in a manner acceptable to both spouses.

Texas attorneys are ethically prohibited from representing both spouses in a divorce. Because of the emotional and subjective nature of divorce, it is important for each spouse to have and objective and professional guide through the process. You might think there would be an advantage to your being the only party with counsel. However, one attorney may not advise both spouses. A common metaphor for Collaborative Law is that of white-water rafting. Just as in white-water rafting, you need an experienced guide - one who has navigated the waters for a considerable period of time with a considerable degree of success. The guide will assist you toward your destination, but will know when to direct you to pull your oar out of the water and how to maneuver you through the turbulent eddies.

Generally, the filing for divorce is an agreed upon event, planned by the two spouses and facilitated by the attorneys. At the conclusion of the settlement meetings, the necessary legal documentation for marital dissolution, asset distribution, and child conservatorship will be prepared and filed by the attorneys, and the date for appearing in court with the agreement will be scheduled at a time convenient for all.

Since one of the tenets of Collaborative Law is that the process is conducted with civility in private settings, rather than with hostility in the public arena of the courthouse, the longstanding relationship of the attorneys acts as an enhancement to successful settlement of your case.

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State Bar of Texas Section Report - Family Law - Fall 2006

by Jimmy L. Verner, Jr.

Jurisdiction: The Vermont Supreme Court refused to extend full faith and credit to a Virginia order that cut off a same-sex partner’s visitation with the couple’s child because Virginia “violated” the UCCJA and PKPA by issuing an order when Vermont had prior jurisdiction. Miller-Jenkins v. Miller-Jenkins, 2006 Vt. LEXIS 159 (Aug. 4, 2006). The PKPA’s six-month requirement applies to a habeas corpus petition for possession of a child. E.N. v. E.S., 852 N.E.2d 1104 (Mass. App. 2006). A New York court lacked jurisdiction to terminate a support order when the obligor subsequently obtained an out-of-state divorce decree from a state without in personam jurisdiction over the New York-domiciled obligee. Sannuto v. Palma-Sannuto, 820 N.Y.S.2d 112 (App. Div. 2006). In Pennsylvania, a trial court’s desire to “effectuate economic justice” did not justify the court’s sua sponte joinder of an ex-husband’s Hong Kong-domiciled paramour as a party and failure to serve her with process because neither court rules nor due process requirements are “optional.” Mayer v. Garman, 2006 Pa. LEXIS 1438 (Aug. 4, 2006).

Paternity/maternity: A Kentucky mother was estopped to deny her husband’s paternity of her child when divorce proceedings became bitter, given that the child’s birth certificate listed the husband as the father, and the mother previously had filed a verified petition identifying the husband as the father. Hinshaw v. Hinshaw, 2006 Ky. App. LEXIS 275 (Sept. 1, 2006). The biological father of a child born to a married woman has a vested parental right once parentage is established, a right that “may only be stripped pursuant to the statutory parental termination procedures - it may not be forfeited in a balancing test or to another man who may appear to be a more ideal father.” In re: T.K.Y., 2006 Tenn. LEXIS 757 (Aug. 28, 2006). The Michigan Supreme Court found a recitation in a default divorce decree that there were no children born of the marriage insufficient to establish that a child was not issue of the marriage and therefore to confer standing to establish paternity upon the man who fathered the child during the mother’s marriage. Barnes v. Jeudevine, 718 N.W.2d 311 (Mich. 2006). A California appellate court refused to allow “the wife of a man who fathered a child in an extramarital relationship to assert status as the child's mother, when the child’s biological mother has come forward promptly to assert her maternal rights.” Amy G. v. M.W., 47 Cal. Rptr. 3d 297 (Cal. App. 2006).

Be nice: A Mississippi appellate court granted primary physical custody of a five year old child to her Navy meteorologist father who had orders to report to San Diego when the ex-wife admitted she had prevented the new wife from picking up the child from day care, planned to change the child’s surname by hyphenation and refused to sign a therapy consent form. The father testified that the mother denied him visitation, called his new wife a “dirty whore” in the child’s presence and  would not allow the child “to speak of” her little brother who had been born to husband’s new wife. Giannaris v. Giannaris, 2006 Miss. App. LEXIS 668 (Sept. 12, 2006). A California appellate court held that a husband did not transmute property interests to his wife by signing a writing literally dictated to him by the wife because the wife subjected the husband to duress and undue influence via “a continuous barrage of yelling and threats of divorce” and threatened to obstruct his relationship with the minor children if he refused to sign. In re: Balcof, 7 Cal. Rptr. 3d 183 (Cal. App. 2006).

Child Support: A New Mexico child support order registered in California that showed no arrearage did not bind the obligee when the obligor actually owed over $3,000. DeLeon v. Jenkins, 2006 Cal. App. LEXIS 1450 (Sept. 21, 2006). An Iowa court acted properly when averaging the obligor’s income over three years for child support purposes when the obligor’s overtime varied. In re: Anglin, 2006 Iowa App. LEXIS 1000 (Aug. 23, 2006). The military’s “Basic Allowance Housing” and “Basic Allowance Subsistence,” which grant extra money for housing and food when personnel live off-base, should be included as income for child support purposes. In re: D.F., 934 So. 2d 687 (La. 2006). A Kentucky appellate court rejected an equal protection challenge (prior-born v. later-born children) when an obligor complained that his child support was “increased directly as a result of the failure of the father of the other parent’s prior-born child to pay child support.” Kimbrough v. Kentucky, 2006 Ky. App. LEXIS 226 (July 21, 2006).

Private school: The Missouri Court of Appeals for the Western District affirmed the cost of attendance at Life Christian Academy as “extraordinary child rearing costs” when the mother moved the child to the school because of the child’s ADD. Nelson v. Nelson, 195 S.W.3d 502 (Mo. App. 2006). Two months later, the Missouri Court of Appeals for the Eastern District reversed a trial court for ordering that a child attend Catholic School and requiring additional child support for tuition when the husband “failed to prove that attendance at the Catholic School will meet any particular educational needs of Child.” Seyler v. Seyler, 2006 Mo. App. LEXIS 1354 (Sept. 12, 2006).

Same-sex update: The New York Court of Appeals rejected a state constitutional challenge to permitting only opposite-sex marriage, concluding that “a rational legislature could decide that these benefits should be given to members of opposite-sex couples, but not same-sex couples.” Hernandez v. Robles, 2006 N.Y. LEXIS 1836 (July 6, 2006). Washington State, citing the New York decision, followed suit in Andersen v. King County, 138 P.3d 963 (Wash. 2006). In California, a suit for dissolution of a domestic partnership was dismissed when the parties failed to register with the California Secretary of State, as required by the Domestic Partner Act. Velez v. Smith, 142 Cal. App. 4th 1154 (2006).

Retirement: A trial court had no jurisdiction to hear an ex-wife’s claim to survivor benefits under her deceased ex-husband’s pension, even though the ex-husband had told the Plan that the ex-wife had died, because the ex-wife never had become a beneficiary of the Plan. Cobb v. Central States, Southwest and Southeast Areas Pension Fund, 461 F.3d 632 (5th Cir. 2006). The Federal Circuit held an ex-wife entitled to a survivor annuity when the only mention of such an annuity in the divorce decree read: “The assignment of benefits to the Alternate Payee shall not be reduced, abated or terminated as a result of the death of the participant.” Snyder v. Office of Personnel Management, 2006 U.S. App. LEXIS (Fed. Cir. Sept. 13, 2006).

Insurance settlement: The New Hampshire Supreme Court affirmed a trial court’s decision to calculate the child support to be paid by the recipient of a lump sum personal injury settlement by “dividing his personal injury settlement over his projected lifetime to impute an income figure for the purpose of calculating child support.” In re: State of New Hampshire and Taylor, 904 A.2d 619 (N.H. 2006). In New York, a trial court did not err by dividing the marital estate equally,  despite the estate’s receipt of a $240,000 personal injury settlement after wife’s injury, when proceeds of the settlement “were commingled with marital funds and thereafter spent on marital debt and numerous marital assets, including a vacant lot where the parties built a new home.” Ruzicka v. Ruzicka, 817 N.Y.S.2d 770 (App. Div. 2006).

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In past years, the right of a grandparent to have access to a grandchild against the parent's wishes has been unclear under Texas law. Except for the rare family feud that keeps grandchildren and grandparents apart, grandparent access cases usually come about when the grandparent's child has died or has had his or her parental rights terminated. In such cases, the grandparents seek to retain access to their grandchildren, but the remaining parent can be cautious of the grandparents, especially in termination cases, and often want to move on to a new life. In either event, remarriage by the surviving parent followed, at times, by a stepparent adoption can create even greater distance between grandparents and the remaining parent.

On June 5, 2000, the United States Supreme Court decided a grandparent access case called Troxel v. Granville, 530 U.S. 57 (2000). Troxel addressed what rights grandparents have to maintain a relationship with their grandchildren after their child has died and over the surviving parent's objection. The decision in Troxel - consisting of a plurality opinion, two concurrences and three dissents - further muddied an already unclear are of the law. The only clear holding from Troxel was that a "fit" parent had the right to decide whether a child's grandparents could have access to the child.

In the years following Troxel, Texas appellate courts struggled to apply the case, but the Texas Supreme Court did not address Troxel until its brief, per curiam opinion in In re: Mays-Hooper, 189 S.W.3d 777 (Tex. 2006) (per curiam). In that case, the Court applied Troxel to Texas' old grandparent rights statutes but declined to analyze them more extensively because the 2005 legislature had amended them. More recently, the Court considered the amended grandparent rights statutes, Tex. Fam. Code section 153.431 et seq., in In re: Derzapf, 2007 Tex. LEXIS 270, 50 Tex. Sup. 563 (2007) (per curiam), where the Court conditionally granted mandamus because the trial court had abused its discretion by requiring grandparent access.

These two Texas Supreme Court cases have greatly clarified the Texas grandparent rights statutes, both substantively and procedurally. These clarifications are summarized in the following points:

1. If It Looks Like a Duck . . . In Mays-Hooper, the Court found Troxel's facts "in all relevant respects the same as those here." According to Mays-Hooper, a plurality of the Troxel bench found the Washington visitation statute "unconstitutional as applied, pointing to three factors: (1) the child's mother was not unfit, (2) her decisions about grandparent access were given no deference, and (3) she was willing to allow some visitation." Because the facts in Mays-Hooper were "virtually the same" as in Troxel, "the judgment must be the same, too." This meant that the trial court's order allowing grandparent access could not stand. The lesson to be learned? If the facts in a given grandparent access case are like Troxel or Mays-Hooper, then grandparent access cannot be imposed.

2. A Little Possession Prevents More. In Troxel and Mays-Hooper, an important fact mentioned by both courts was that the mother had permitted the grandparents "some" visitation. In Troxel, that visitation consisted of one day per month; in Mays-Hooper, the Court stated only that there was "no evidence that [the mother] intended to exclude [the grandparent's] access completely." Although neither Troxel nor Mays-Hooper so states, one might very well reason that a parent who shuts off grandparent access significantly impairs a child's physical health or emotional well-being. Under Troxel and Mays-Hooper, a parent who allows "some" access will prevail in a grandparent access suit. Only a parent who disallows access completely risks a court order requiring access.

3. Evidence of Significant Impairment Must Be Stout. As amended, Tex. Fam. Code section 153.433(2) permits grandparent access orders over the parent's objection only if denial of access "would significantly impair the child's physical health or emotional well-being." In Derzapf, the Court emphasized how tough this standard is. An expert psychologist testified that cutting off grandparent access could be "harmful" to one of the children. He also said that "it was in the children's best interest that they have some contact with their grandparents." Finally, the expert "noted the children's 'sadness' at being unable to see their grandparents," but he conceded that the feelings of sadness "did not rise to the level of a significant emotional impairment." Emphasizing the word "significant," the Derzapf Court concluded that there had been no showing that depriving the children of grandparent access would significantly impair the children's physical health or emotional well-being.

4. Mandamus Can Be Appropriate Relief. Except in termination cases - which are not defined as suits affecting the parent-child relationship in Texas - there is no right of accelerated appeal from a court order granting or denying possession or access. But Mays-Hooper and Derzapf both have shown that mandamus relief is appropriate in cases where a trial court has ordered grandparent access. In Mays-Hooper, the Court did not struggle with whether the extraordinary remedy of mandamus might be appropriate because both parties agreed that the remedy should apply. The Derzapf Court formalized the availability of mandamus relief for grandparent cases:

The temporary orders here divest a fit parent of possession of his children, in violation of Troxel's cardinal principle and without overcoming the statutory presumption that the father is acting in his children's best interest. Such a divestiture is irremediable, and mandamus relief is therefore appropriate.

This reasoning does not, however, support the conclusion that stymied grandparents necessarily could invoke mandamus relief. To the contrary, the Derzapf Court emphasized that "grandparents' rights are generally subordinate to a parent's."

5. Fit Parents Rule. In Troxel, Justice O'Connor's plurality opinion stated: "So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family . . . ." Mays-Hooper quoted this language, as did Derzapf. Obviously, the Texas Supreme Court has taken this language to heart.

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State Bar of Texas Section Report - Family Law - Spring 2006

by Jimmy L. Verner, Jr.

Troxel tweaked: Troxel (530 U.S. 57) continues to ripple through the states. In Pennsylvania, “non-biological grandparents” who stand in loco parentis to a child’s parent have standing to seek visitation rights despite Troxel. Peters v. Costello, 891 A.2d 705 (Pa. 2005). A Kansas appellate court engrafted Troxel’s requirements onto Kansas’ stepparent visitation statute to make it constitutional. Riggs v. Hem, 129 P.3d 601 (Kan. App. 2006) (after musing whether it would “offend botanists” by “grafting the branch of a pear tree onto an apple tree”). Absent an allegation of parental unfitness, forcing a parent to defend against a grandparent visitation claim itself violates parents’ rights to make decisions about their children. E.g., Conlogue v. Conlogue, 890 A.2d 691 (Me. 2006) (collecting cases). However, a fit parent seeking to regain custody of a child does not enjoy Troxel’s protections because Troxel applies only to a parent who has custody of a child. In re: L.V., 38 Cal. Rptr. 3d 894 (Cal. App. 2006).

So far away: Moving to Indiana to make video documentaries for a fundamentalist missionary can lose custody for a mother in Alabama. Ex parte Snider, 2005 Ala. LEXIS 205 (Nov. 18, 2005). An Oregon court allowed the children to accompany their mother to Norway when it found that the father played “a far more limited role” in caring for the children than did the mother. Hamilton-Waller v. Waller, 123 P.3d 310 (Ore. App. 2005). When a New York mother moved to Colorado without first telling the father - and said she was staying whether or not the child returned - the trial court properly granted custody to the father. Willis-March v. Wilkerson, 803 N.Y.S.2d 231 (App. Div. 2005).

QDROs and death: When divorced and remarried father died, second wife received his survivor benefits as against children from first marriage because there was no QDRO to effectuate assignment of rights awarded to first wife in divorce. Hamilton v. Wash. State Plumbing & Pipefitting Indus. Pension Plan, 433 F.3d 1091 (9th Cir. 2006). A Maryland court allowed a post-mortem amendment to a QDRO caused by “inadvertent drafting mistakes.” Eller v. Bolton, 2006 Md. App. LEXIS 38 (Mar. 31, 2006).

Same-sex relationships: A challenge to the Defense of Marriage Act (permits a state to deny full faith and credit to same-sex marriages from another state) failed because the same-sex couple wasn’t married in any state. Smelt v. County of Orange, California, 2006 U.S. App. LEXIS 11243 (9th Cir. Apr. 4, 2006). In Massachusetts, where same-sex marriage is allowed, nonresident same-sex couples have no right to issuance of a marriage license. Cote-Whitacre v. Department of Public Health, 844 N.E.2d 623 (Mass. 2006). In two recent cases, lesbian partners have been allowed to proceed with parental rights suits against former partners despite fact that partners were not “parents” because their former partners were inseminated artificially by third persons. In re: Parentage of L.B.,122 P.3d 161 (Wash. 2005) (en banc); In re: Parentage of A.B., 837 N.E.2d 965 (Ind. 2005).

Parentage disputes: Paternity fraud is intrinsic (not extrinsic) fraud, so Florida’s one-year limitations statute barred a suit to recoup child support. Parker v. Parker, 916 So. 2d 926 (Fla. App. 2005). South Carolina’s Supreme Court held that there is no limitations period for a paternity suit. Smith v. Doe, 623 S.E.2d 370 (S.C. 2005) (mother filed suit in behalf of mentally handicapped 34-year-old). After a wife’s death, her former lover was equitably estopped from seeking a determination of parentage against widower when former lover had reason to know he was child’s father and widower married wife knowing she was pregnant by another man. Robert P. v. Vito C., 804 N.Y.S.2d 802 (App. Div. 2005). When surrogate parents “decided to keep the triplets for themselves,” an Ohio appellate court made them pay back their $20,000 fee and $24,000 in expenses plus awarded attorney’s fees against them. J.F. v. D.B., 2006 Ohio App. LEXIS 1074 (Mar. 15, 2006) (quite a saga - four lawsuits, conflicting interstate rulings).

Termination: An agreement to terminate parental rights (along with child support obligation) is void as against public policy in California. Kristine M. v. David P., 37 Cal. Rptr. 3d 748 (Cal. App. 2006). In Georgia, a court should reject such an agreement when it is not in the child’s best interest. Taylor v. Taylor, 623 S.E.2d 477 (Ga. 2005). Being convicted of a felony in itself does not justify termination, says a California appellate court. The facts underlying the felony must show parental unfitness. In re: Baby Girl M., 38 Cal. Rptr. 3d 484 (Cal. App. 2006).

Prenuptials: After 18 years of marriage and four children, with husband’s net worth in excess of $22 million, the Georgia Supreme Court enforced a prenuptial agreement that granted wife $2,900 per month of alimony for four years and husband all the marital assets. Mallen v. Mallen, 622 S.E.2d 812 (Ga. 2005). In another case, the Georgia Supreme Court held that husband’s failure to disclose his income was material to wife’s decision to waive alimony and thus affirmed trial court’s denial of husband’s summary judgment motion. Corbett v. Corbett, 2006 Ga. LEXIS 204 (Mar. 27, 2006). A North Carolina court reversed a summary judgment for husband when wife questioned the voluntariness of the prenuptial agreement which was presented to her while en route to the wedding. Kornegay v. Robinson, 625 S.E.2d 805 (N.C. App. 2006).  An Oregon appellate court held that a choice-of-law clause in a premarital agreement meant that California law governed construction of the agreement but Oregon law applied to the property division. Procter v. Mavis, 125 P.3d 801 (Ore. App. 2005).

Child support: A California trial court erred when it included the value of stock as income for child support purposes because the stock - unlike stock options - was given in exchange for a capital asset, not as part of an employee compensation package. In re: Marriage of Pearlstein, 40 Cal. Rptr. 3d 910 (Cal. App. 2006). An attorney who filed suit for fees against his former client’s estate accepted an assignment of the former client’s interest in a child support arrearage owed by the former client’s ex-husband, but a Florida court held that the child support arrearage belonged to the children, not the estate. Thurlow v. LaFata, 915 So. 2d 737 (Fla. App. 2005). In California, a portion of a lump-sum unallocated personal injury settlement can be considered as income for child support purposes when it includes compensation for lost income and earning capacity. In re: Marriage of Heiner, 39 Cal. Rptr. 3d 730 (Cal. App. 2006). A change in exchange rates for Swiss francs constituted a material change of circumstances for child support purposes. Hixson v. Sarkesian, 123 P.3d 1072 (Alas. 2005).

Characterization: Stock options given to a husband three days before he filed for divorce were not part of the marital estate because the husband acquired them after the parties separated and to induce him to take a new job. Robertson v. Robertson, 885 A.2d 470 (N.J. Super. App. 2005). A Florida trial court was reversed for failing to consider 100% of a husband’s vacation time as a marital asset subject to division on divorce. Purpura v. Kelly, 913 So. 2d 110 (Fla. App. 2005).

Valuation: A trial court erred by failing to make “an active appreciation analysis” with respect to the increase in value of a business owned 95% as husband’s separate property, but trial court did not err by refusing to apply minority discount to wife’s 5% share of business because husband was buying out wife’s interest. Hanson v. Hanson, 125 P.3d 299 (Alas. 2005). Personal goodwill should not have been included in a Louisiana court’s valuation of a separately incorporated endoscopy center because it served merely as an extension of husband’s medical practice. Rao v. Rao, 2005 La. App. LEXIS 2354 (Nov. 4, 2005).  

Division: A Pennsylvania appellate court affirmed an award of 100% of the martial estate plus equitable reimbursement of $83,830 to wife after husband obtained his M.D. and Ph.D. and completed his residency during marriage. Wang v. Feng, 888 A.2d 882 (N.J. Super. 2005). A California wife who siphoned off nearly all the husband’s IRA to pay bills and taxes during marriage could not be held liable for breach of fiduciary duty because legislature enacted statute creating the duty after parties’ marriage. In re: Walker, 2006 Cal. App. LEXIS 613 (Apr. 27, 2006). When parties both delayed transfer of part of 401k to wife, and the 401k declined in value, an Alabama court required the parties to share the loss. Buchanan v. Buchanan, 2005 Ala. Civ. App. LEXIS 736 (Dec. 9, 2005).

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