North Texas Family Law Blog

Video Visitation and Other Electronica

jverner@vernerbrumley.com (Jimmy Verner) — Wed, 05 Dec 2007 10:20:34 -0600

The Texas legislature has gone high-tech, at least in the variety of ways Texas law now permits a conservator to keep in touch with his or her children. In new Texas Family Code section 153.015 - entitled "Electronic Communication with Child by Conservator" - the legislature has endorsed frequent contract by "telephone, electronic mail, instant messaging, videoconferencing, or webcam."

But the legislature also made clear that electronic visitation is intended to supplement periods of physical possession, not replace it. The new statute specifically states that electronic communication "is not intended as a substitute for physical possession." Further, the availability of electronic communication cannot be considered by a court as a factor in setting child support.

What are the requirements for electronic visitation? There are three:

Each parent must provide the other parent with the child's email address plus any other information needed for electronic visitation.
Each parent must notify the other parent of any changes in email addresses or other information not later than twenty-four hours after the change takes effect.
If "necessary equipment is reasonably available," each parent must permit electronic visitation at reasonable times "with the same privacy, respect, and dignity" as physical possession.

According to long-time family law Prof. John J. ("Jack") Sampson of the University of Texas, the legislature decided to add this section after "hearing stories of parents not allowing children to speak to the other parent during periods of possession." While they were at it, the legislators decided to include email, instant messaging and video.

Section 153.015 appears after the break.Texas Family Code § 153.015. Electronic Communication with Child by Conservator

(a) In this section, ‘‘electronic communication’’ means any communication facilitated by the use of any wired or wireless technology via the Internet or any other electronic media. The term includes communication facilitated by the use of a telephone, electronic mail, instant messaging, videoconferencing, or webcam.

(b) If a conservator of a child requests the court to order periods of electronic communication with the child under this section, the court may award the conservator reasonable periods of electronic communication with the child to supplement the conservator’s periods of possession of the child. In determining whether to award electronic communication, the court shall consider:

(1) whether electronic communication is in the best interest of the child;

(2) whether equipment necessary to facilitate the electronic communication is reasonably available to all parties subject to the order; and

(3) any other factor the court considers appropriate.

(c) If a court awards a conservator periods of electronic communication with a child under this section, each conservator subject to the court’s order shall:

(1) provide the other conservator with the e-mail address and other electronic communication access information of the child;

(2) notify the other conservator of any change in the e-mail address or other electronic communication access information not later than 24 hours after the date the change takes effect; and

(3) if necessary equipment is reasonably available, accommodate electronic communication with the child, with the same privacy, respect, and dignity accorded all other forms of access, at a reasonable time and for a reasonable duration subject to any limitation provided by the court in the court’s order.

(d) The court may not consider the availability of electronic communication as a factor in determining child support. The availability of electronic communication under this section is not intended as a substitute for physical possession of or access to the child where otherwise appropriate.

(e) In a suit in which the court’s order contains provisions related to a finding of family violence in the suit, including supervised visitation, the court may award periods of electronic communication under this section only if:

(1) the award and terms of the award are mutually agreed to by the parties; and

(2) the terms of the award:

(A) are printed in the court’s order in boldfaced, capitalized type; and

(B) include any specific restrictions relating to family violence or supervised visitation, as applicable, required by other law to be included in a possession or access order.

Court Settles Appellate Split in Termination Cases

jverner@vernerbrumley.com (Jimmy Verner) — Tue, 13 Nov 2007 15:20:52 -0600

When parents relinquish their parental rights for purposes of adoption, or the State convinces a court to take away those parental rights in cases of abuse, the parents' rights are said to be "terminated." These cases are called termination cases.

Termination cases cannot occur in a vacuum. They must be accompanied by appointment of the State, or of an adoption agency or prospective adoptive parents, as temporary conservators of the child. If parental rights were terminated without further action, then there would be no one in charge of the child.

In adoption cases where a biological parent changes his or her mind about termination, or in termination cases brought by the State because of child abuse, the terminated parent may appeal the trial court's decision on termination. There has been a dispute among Texas' Courts of Appeals whether reversing the trial court on its termination decision automatically reverses the appointment of a conservator. Some courts have held that a parent need attack only the termination decision, while other courts have ruled that a parent must appeal both the termination and the conservatorship decisions.

The Texas Supreme Court, in In re: J.A.J., has resolved the issue: The Court ruled that on appeal, a parent must challenge both the decision to terminate and the decision to appoint a conservator if the parent wants his or her child back.

The Court rested its decision on two grounds. First, the Court first noted that the grounds for termination are not the same as those warranting appointment as a conservator, so reversing a termination decision is not necessarily inconsistent with leaving a conservatorship order in place.

Second, the Court observed that the burden of proof for the two issues is different: Termination of parental rights must be proved by clear and convincing evidence, while a preponderance of the evidence governs conservatorship decisions. Thus, it would be possible to conclude the the evidence did not warrant termination but did justify retaining a third person or entity as the child's conservator.

Appellate Review Without Reporter's Record

jverner@vernerbrumley.com (Jimmy Verner) — Thu, 01 Nov 2007 18:29:45 -0600

In a case called In re: A.S., a divided Beaumont Court of Appeals affirmed a trial court's termination of parental rights without a reporter's record. The majority said that it could tell that the appeal would be frivolous based upon the record from a post-trial hearing. The majority refused the appellant's request that the trial itself be transcribed before considering the appeal.

This is an astounding decision. At the post-trial hearing, counsel for the Texas Department of Family and Protective Services (TDFPS) told the trial court what the evidence had been at trial. The parent's appellate attorney, who did not try the case, was unable to respond with any particularity. Although the appellate attorney had spoken with the attorney who represented the parent at trial, the appellate attorney had no opportunity to review the trial evidence - by reviewing the reporter's record - because the Beaumont Court's majority decided it didn't need the reporter's record to conclude that the appeal was frivolous.

Thus, the Court's majority decided the appeal of a termination case based on the recollection of the attorney for TDFPS of what the evidence at trial showed.

In dissent, Justice Gaultney put the matter bluntly: "An appellate court cannot determine whether a factual sufficiency issue is frivolous without reviewing the evidence." Citing a United States Supreme Court opinion, Justice Gaultney further inquired how an appellate attorney could "adequately challenge a frivolous finding on a factual sufficiency issue without access to a reporter’s record."

We hope that the appellate attorney files a petition for review with the Texas Supreme Court. Cutting corners when it comes to due process undermines confidence in the judicial system.

There Must Be Sufficient Evidence to Support Divorce

jverner@vernerbrumley.com (Jimmy Verner) — Wed, 24 Oct 2007 11:51:48 -0600

When spouses agree to a divorce, a divorce decree is prepared, and the divorce is "proved up." Technically, a prove-up is a trial. One or both of the spouses testifies about the grounds for divorce, custody and visitation for the children and the division of the community estate.

Prove-ups also are necessary in default cases. A default case is one where the other spouse is served with citation (or waives service) but does not file pleadings with the court, make any agreements with the filing spouse, or show up for the prove-up.

In both types of cases, a busy court docket and the lack of any objection to the divorce can result in a curtailed prove-up. But all divorce decree must be supported by sufficient evidence. It can be a mistake to shorten a prove-up because then a spouse can appeal on the ground that the evidence is insufficient to support the decree.

We've written about this issue before, in Newsletter entries for January 8 and February 26, 2004. The El Paso Court of Appeals has highlighted the problem again in the recent case of Giron v. Gonzalez.

By agreed temporary orders, Ms. Giron had temporary custody of the children. Mr. Gonzalez paid her child support. But Ms. Giron failed to appear at the divorce hearing. Mr. Gonzalez obtained a divorce by default against Ms. Giron, alleging no-fault grounds, adultery and cruelty. The trial court granted him sole custody of the children and suspended Ms. Giron's visitation with the children. Finally, the trial court forgave past-due child support owed by Mr. Gonzalez.

On appeal, the El Paso Court found that Mr. Gonzalez did not introduce enough evidence into the record to support any finding but no-fault divorce. To demonstrate its point, the Court quoted the entire prove-up which is copied in the extended entry.
Q. Would you state your name for the record.

A. My name is Jesus Ricardo Gonzalez, Jr.

Q. You are married to Selene Giron, correct?

A. Yes.

Q. Now, you are aware of how she spells her name, correct?

A. Yes.

Q. And what is the proper spelling?

A. S-E-L-E-N-E.

Q. And you and her were married, correct?

A. Yes.

Q. At the time that you filed the petition for divorce, had you lived in the State of Texas for six months?

A. Yes.

Q. And El Paso County 90 days?

A. Yes.

Q. You've alleged your marriage to Selene Giron has become insupportable because there's discord and conflict of personalities between you and her that destroys the marriage relationship?

A. Yes.

Q. Is there any reasonable expectation that you are going to reconcile?

A. No.

Q. Of this marriage -- there are two children born of this marriage, correct?

A. Yes.

Q. What are their names and ages?

A. [T.A.G.], she's five years old, and [L.M.G.], she's three years old.

Q. And you're asking the Court to appoint you sole managing conservator of these children?

A. Yes.

Q. Your wife knows where the children are at?

A. Yes, she knows.

Q. And they're in your possession?

A. Yes.

Q. Has she made any contact -- any efforts to contact the children?

A. She calls.

Q. And does she talk to the kids?

A. Yes, I let her speak to kids [sic].

Q. Have you attended Helping Children Cope With Divorce?

A. Yes.

Q. And do you know whether your wife has attended?

A. No, I do not know.

Q. You are asking the Court to suspend any visitation until such time as she completes the Cope program?

A. Yes.

Q. The provisions of -- the proposed decree has provisions for child support?

A. Yes.

Q. Correct?

A. Yes.

Q. And it has provisions for visitation?

A. Uh-huh.

Q. Health insurance -- are the children covered by health insurance?

A. Well, I pay for it on the child support.

Q. But do they have health insurance?

A. No -- at this time, I'm not certain because they were living with their mother in Ohio, so I really don't know.

Q. In terms of property, was there any property accumulated?

A. No.

Q. And each one is going to pay whatever debts you have in your name.

A. Yes.

Q. Other than these two children, do you know whether she was pregnant, expecting a child at this time?

A. Really, I don't know.

Q. But as far as you're concerned, she wasn't pregnant with any of your children?

A. Oh, no.

Q. And no other child was adopted?

A. No.

Q. Today you're asking the Court to approve -- to grant your petition for divorce?

A. Yes.

The Court: And as I understand it, you-all are going to nonsuit the cause of action against the third-party respondent, Maria Apodaca?

[Plaintiff's counsel]: Right.

The Court: Sir, how long have the children been living with you?

Mr. Gonzalez: For two weeks.

The Court: Anything else at this time?

[Plaintiff's counsel]: No, Your Honor.

The Court: I do recommend to the referring court this divorce be granted effective today's date.

Good luck to you, sir.

Russian Brides: Abusers Need Not Apply

jverner@vernerbrumley.com (Jimmy Verner) — Wed, 17 Oct 2007 13:08:07 -0600

On January 5, 2006, President Bush signed the International Marriage Broker Act of 2005 ("IMBRA"), found at Title VIII, Subtitle D of Public Law No. 109-162 which itself reauthorized the Violence Against Women Act.

IMBRA imposes certain requirements on Internet dating services that primarily focus on matching American men with foreign women. Before allowing an American to communicate with a foreign woman, an Internet dating service must conduct a criminal background check on the man, a sex-offender check on him and require him to complete a questionnaire detailing his previous arrests, convictions, marriages, divorces, children and all states of residence since he turned eighteen.

As one might imagine, IMBRA has been unpopular with American men who claim that it unfairly presumes they will abuse their future foreign spouses.

Why did Congress pass this law? A court that ruled on IMBRA's constitutionality explained:

The rates of domestic violence against immigrant women are much higher than those of the U.S. population as a whole and have in common with women brokered through international marriage brokers a number of factors, including the dependency of the immigrant woman on the U.S. citizen for her legal status. An estimated 70% of abusive U.S. citizen spouses, including those who consummate relationships through [International Marriage Brokers], withhold the filing of the proper paperwork necessary to validate the legal status of their immigrant female partners to cause them to fall out of legal status and to hold the threat of jail or deportation over the woman. Estimates by the National Institute on Justice are that over 73 percent of domestic violence cases go unreported.

An international marriage broker called European Connections & Tours, Inc., sued to have IMBRA declared unconstitutional. European Connections contended that IMBRA posed an impermissible prior restraint on European Connections' free speech rights. A federal district court in Georgia upheld IMBRA's requirements.

Who Gets the Children When the Custodial Parent Dies?

jverner@vernerbrumley.com (Jimmy Verner) — Thu, 11 Oct 2007 13:27:25 -0600

The courts have made it clear that parents have a fundamental right to custody of their children. For this reason, grandparents sometimes are denied visitation with their grandchildren when their child - the children's mother or father - dies. But what happens when the parents are divorced and the parent who had custody of the children dies?

The San Antonio Court of Appeals ruled that the surviving parent has the right to custody of the children when the custodial parent dies - unless it is shown that leaving custody with the surviving parent would cause a serious and immediate question concerning the children's welfare.

This ruling came about when a custodial mother died. The maternal grandparents took custody of the children while the father, who lived out of state, traveled to Texas. The maternal grandparents filed suit to obtain legal custody of their grandchildren. The father filed a petition for writ of habeas corpus to obtain custody of his children.

The habeas corpus statute requires that children be returned to the person who has the right to custody of them unless it can be shown that there is "a serious immediate question concerning the welfare of the child." The grandparents argued that the children should have remained "with the people who can provide them the most comfort: their grandparents and their nanny." But the San Antonio Court ordered the children returned to their father. It held that "merely removing a child from a familiar environment does not rise to the level of a serious and immediate question concerning a child's welfare in the habeas corpus context."

A Close Reading of the Extended Possession Statute

jverner@vernerbrumley.com (Jimmy Verner) — Tue, 09 Oct 2007 12:22:41 -0600

Texas' Standard Possession Order sets out when the noncustodial parent has visitation with ("possession of") the children. By default, the noncustodial parent has visitation with the children on Thursday evenings during the school term between 6:00 p.m. and 8:00 p.m., and on the first, third and (if there is one) fifth weekends throughout the year from 6:00 p.m. Friday to 6:00 p.m. Sunday.

But a noncustodial parent may request alternative times for visitation to occur on Thursdays and on weekends. According to Texas Family Code section 153.312(a), the noncustodial parent may elect that weekend visitation begin when the child's school is dismissed on Friday. The noncustodial parent may elect - unless not in the child's best interest - that Thursday visitation begin when school is dismissed and end on Friday when school commences.

What are the results of the alternative visitation times? Thursdays become overnight visits, and when a Thursday precedes weekend visitation, as a practical matter visitation begins Thursday when school lets out and ends on Sunday at 6:00 p.m. Thus, a noncustodial parent may have extended weekend visitation.

But this Family Code section, and another one like it - Texas Family Code section 153.317 - require the noncustodial parent to make these elections "before or at the time of" the original court order setting out visitation, or "before or at the time of" any modification order. A recent Fort Worth Court of Appeals case faced the issue whether a noncustodial parent could ask for these elections by themselves, after a modification order recently had been signed. The Court held that this parent had lost his opportunity to make these elections because he did not make them before or at the time the court granted the modification order.

Accordingly, a noncustodial parent who wants to elect these alternative visitation times must make these elections "before or at the time of" the divorce, a paternity order or a modification action, or the elections will be considered waived.

Post-Mortem Child Support

jverner@vernerbrumley.com (Jimmy Verner) — Fri, 28 Sep 2007 17:49:57 -0600

For a long time, Texas law said that unpaid child support terminated on the death of the noncustodial parent. This year's Texas legislature dramatically changed this law by establishing a system for post-mortem child support.

Senate Bill 617 deleted the clause stating that a noncustodial parent's child support obligation terminates on that parent's death. The Bill added Texas Family Code section 154.016. This section allows a court to require a noncustodial parent to purchase and maintain a life insurance policy or annuity to pay the unpaid child support in the event that the noncustodial parent dies while child support is still payable.

The Bill also added Texas Family Code section 154.015. This section states that "the remaining unpaid balance of the child support obligation becomes payable on the date the obligor." But how is the balance determined? Section 154.015 directs the court to discount future child support to present value but then also to consider benefits to the child upon the obligor's death, such as life insurance. The court then decides whether the child support obligation has been satisfied. To the extent not satisfied, the child support obligation becomes a claim against the obligor's estate.

Taken together, these legislative changes operate to protect the child from a loss of child support occasioned by the untimely death of a parent. Texas Family Code section 154.015 applies only if the noncustodial parent died on or after September 1, 2007. The other parts of the statute apply to an order for child support issued at any time, even before the Act passed.

Collaborative Law Basic Training

jverner@vernerbrumley.com (Jimmy Verner) — Wed, 12 Sep 2007 09:50:29 -0600

Last training for 2007:

Collaborative Law: Two Day Basic Training

by Janet P. Brumley

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

Dates: October 18 & 19, 2007 (Begins promptly at 9:00 a.m. and ends at 5:00 p.m. each day)

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

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

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

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

There Must Be a QDRO to Divide Retirement

jverner@vernerbrumley.com (Jimmy Verner) — Fri, 07 Sep 2007 11:05:35 -0600

A federal statute called the Employee Retirement Income Security Act (ERISA) governs most retirement plans. To divide a retirement plan upon divorce, a court must sign a domestic relations order. Once the Plan Administrator of the retirement plan approves the domestic relations order, it becomes a Qualified Domestic Relations Order (QDRO). In the absence of a QDRO, a court cannot divide retirement benefits, even if the divorce decree provides otherwise.

Kennedy v. Plan Administrator is a case in point. Mr. Kennedy was a DuPont employee who participated in DuPont's retirement plan.   After Mr. Kennedy married, he designated his wife as the beneficiary of his retirement plan in the event that he died before she did. Later, the couple divorced. In the divorce decree, Ms. Kennedy agreed that she would be divested of "all right, title, interest, and claim in and to . . . the proceeds therefrom, and any other rights related to any . . . retirement plan, pension plan, or like benefit program existing by reason of [Mr. Kennedy's] employment." On its face, this language divested Ms. Kennedy of any interest in Mr. Kennedy's DuPont retirement plan.

But no QDRO was signed. Mr. Kennedy retired from DuPont. Later, he died.   The retirement plan paid the balance of Mr. Kennedy's retirement - approximately $400,000 - to the former Ms. Kennedy because, it said, the waiver in the divorce decree did not comply with ERISA.

Mr. Kennedy's estate sued Mr. Kennedy's ex-wife to recover this $400,000. The trial court ruled for the estate, but the estate lost on appeal to the United States Court of Appeals for the Fifth Circuit.   Quoting a United States Supreme Court case, the court held that Congress had enacted strict and detailed rules governing how beneficiaries of pensions can be changed. Mr. Kennedy had failed to follow those rules, so his ex-wife received his retirement after he died.

Attorney's Fees Award an Abuse of Discretion

jverner@vernerbrumley.com (Jimmy Verner) — Thu, 06 Sep 2007 16:54:00 -0600

In an unusual ruling, the Texas Supreme Court reversed an award of $47,178.50 in attorney's fees against a grandmother who unsuccessfully sought custody of her granddaughter. In In re: Moore, the Court held that although the grandmother ultimately had been unsuccessful in gaining custody of her granddaughter, she had "at all times subjected herself and [the child] to the jurisdiction of the trial courts, sought their decisions, and followed their rulings."

Shortly after the child's birth in December 2004, the grandmother petitioned the district court for custody of her grandchild. The trial court ordered that the grandmother have temporary custody. In May 2005, the child's mother asked the court of appeals to order the grandmother's suit dismissed because the grandmother had no standing to bring the suit under any provision of the Texas Family Code. The court of appeals granted the mother's request in June 2005, and the suit was dismissed.

But one of the bases for standing is that a person has had "actual care, control, and possession of the child for at least six months." More than six months had passed since the grandmother obtained temporary custody of her grandchild in December 2004, so the grandmother filed a new petition for custody in which she set out the new basis for standing.

Again the child's mother asked the court of appeals to order the lawsuit dismissed. The court of appeals ordered dismissal and that the grandmother pay the mother's attorney's fees as a sanction because of the grandmother's "intransigence and disregard for the previous judgment of this Court."

The Texas Supreme Court disagreed with that ruling. The Court noted that the second petition for custody was based on a different ground for standing than the first petition so that the grandmother had not disregarded the court of appeals judgment by filing the second petition. The Texas Supreme Court held that the court of appeals had abused its discretion when it ordered payment of these attorney's fees. It ordered the court of appeals to vacate that award.

Grandparents' Rights Extended to Other Family Members

jverner@vernerbrumley.com (Jimmy Verner) — Tue, 04 Sep 2007 13:47:52 -0600

In Texas, there have been three ways for a grandparent to seek custody or visitation with a grandchild. Grandparents could file an original petition for custody, they could intervene in a pending lawsuit, or they could sue to request visitation. Under Texas' unusual terminology (managing conservatorship, possessory conservatorship and possession of or access to a child), the rights conferred by each procedure differ. For background, see Grandparents' Rights in Texas and Grandparent Access in Texas.

In its 2007 session, the Texas legislature expanded the class of persons who could obtain custody of a child. Under Texas Family Code section 102.004(a), the right to seek custody of a child has been extended to adults related to the child "within the third degree of consanguinity." Also, Texas Family Code section 102.006(c) now permits most of these persons to seek custody of a child when the Texas Department of Family and Protective Services has terminated the parental rights of the child's parents, provided suit is filed within ninety days of termination.

What does "consanguinity" mean, and which relatives are within the third degree of consanguinity? The anti-nepotism provisions of the Texas Government Code answer these questions. "Consanguinity" means related by blood. In addition to a child's parents, relatives within the third degree of consanguinity are a child's brother, sister, grandparent, great-grandparent, and aunts and uncles by blood rather than by marriage. The only group of these relatives that cannot seek custody of a child after termination is great-grandparents.

These changes are welcome. The previous law ruled out responsible, caring relatives who could have stepped in to rescue a child from a poor environment. Further, termination (at least by TDFPS) does not preclude a relative from seeking custody of a child.

Texas Family Code section 102.004(a) applies to suits filed on or after September 1, 2007; Texas Family Code section 102.006(a) became effective June 15, 2007.

An Appellate Catch-22

jverner@vernerbrumley.com (Jimmy Verner) — Sun, 02 Sep 2007 11:53:53 -0600

Wikipedia explains that "Catch-22" is common idiomatic usage meaning "a no-win situation" or "a double bind." Although the San Antonio Court of Appeals did not use that term, it recognized the concept in a termination case called In re: R.M.

Termination appeals are tricky. First of all, one must appeal within twenty days rather than the usual thirty days because termination appeals are accelerated appeals. For the same reason, a motion for new trial or the like will not extend the appellate deadline as in the ordinary appeal.

In termination cases brought by the Texas Department of Family and Protective Services, there's a further requirement. Per Texas Family Code section 263.405(b), an appellant must, within fifteen days after the termination order is signed, file a statement of points on which the party intends to appeal. If no statement is filed, then no issues are preserved for appeal.

One issue that can be raised in a termination case is ineffective assistance of counsel. In In re: R.M., the parent tried to raise that issue on appeal, but because the (ineffective) counsel did not include ineffective assistance of counsel in a statement of points to be raised on appeal, the issue was not preserved for review by the Court.

The Court recognized the result as "harsh" and joined other courts in calling for the legislature to change the statute. Quoting the Dallas Court of Appeals, the Court characterized section 263.405(b) as "a trap for the unwary." But instead of ridding the state of this trap, the legislature added a second one. It amended section 263.405(b) to contract the deadline for filing motions for new trials to fifteen days in TDPRS cases.

In other words, yet another Catch-22.

El Paso Court: No Fault-Based Property Division?

jverner@vernerbrumley.com (Jimmy Verner) — Tue, 28 Aug 2007 10:00:17 -0600

In a puzzling opinion, Chafino v. Chafino, the El Paso Court of Appeals appears to have limited the extent to which a court may consider fault in the breakup of a marriage in dividing the parties' community estate.

Ms. Chafino sued her husband for no-fault divorce ("insupportability") as well as for divorce on the grounds of adultery and cruelty. At trial, Mr. Chafino denied adultery, but Ms. Chafino's private investigator videotaped Mr. Chafino entering a room at a local Motel 6 with a woman not his wife. Three hours and twenty minutes passed before the couple emerged. Mr. Chafino's paramour was subpoenaed to court where she admitted the affair. She testified that Mr. Chafino had not informed her that he was married.

The trial court awarded Ms. Chafino 70% of the community estate, but Ms. Chafino appealed, arguing unsuccessfully that the trial court should have awarded her even more of the community estate given Mr. Chafino's misconduct. At this point the El Paso Court said: "In a fault-based divorce, the court may also, in making a disproportionate division, consider the conduct of the errant spouse."

The Court's opinion does not say whether the trial court granted the Chafino divorce on a fault ground or on insupportability, but nearly all divorces in Texas are granted based on insupportability even when a fault-based ground is proved at trial. The Court does suggest, by its choice of language, that a spouse must plead and prove a fault-based ground for divorce if the trial court is to take account of fault in the property division.

If this is what the Court meant to say, then its holding departs from the many Texas cases that hold that fault in the breakup of the marriage may be considered in dividing the community estate even when no fault-based ground for divorce is pled. Nevertheless, the Beaumont Court of Appeals, in Phillips v. Phillips, did hold that fault cannot be used as a factor in dividing the community estate when a "no-fault" divorce is sought.

What do we learn from these cases? If the opposing party is at fault, then the divorce petition should allege both fault and no-fault grounds for divorce. Fault in the breakup of the marriage should be specifically pled as a ground for property division. The trial court should be encouraged to grant the divorce based on fault grounds or at least make findings of fault on the part of the other spouse. Otherwise, the trial court might be foreclosed from considering fault in the property division.

Child Support Changes September 1

jverner@vernerbrumley.com (Jimmy Verner) — Mon, 27 Aug 2007 11:59:01 -0600

For cases filed after September 1, 2007, child support will go up, depending on one's income level. In House Bill 448, the Texas legislature made three changes to child support:

1. Although child support percentages remain the same, the "net resources" ceiling will increase from $6,000 to $7,500. This means that the percentages will be applied up to $7,500 in net resources instead of just to the first $6,000 of net resources.

The child support percentages are:

1 child	20% of net resources
2 children	25% of net resources
3 children	30% of net resources
4 children	35% of net resources
5 children	40% of net resources
6+ children	Not less than the amount for 5 children

2. The second change is that the net resources ceiling ($7,500) is to be adjusted every six years to reflect inflation, according to the Consumer Price Index.

These changes are part of amended Texas Family Code section 154.125. The third change - requiring pro rata calculation of dependent health insurance - is reflected in Texas Family Code sections 154.182 and 154.183:

3. The Juvenile Justice & Family Issues Committee Report describes this third major change:

Provides that in calculating expenses for health insurance coverage, if the obligor has other minor dependents covered under the same health coverage the court shall divide the total cost to the obligor of the coverage by the total number of dependents, including the child that is the subject of the order.

None of this applies if a case is pending prior to September 1, 2007. Only if the case is filed on or after that date do these changes apply.

Sam Spade and Snooping for Evidence

jverner@vernerbrumley.com (Jimmy Verner) — Fri, 24 Aug 2007 12:23:10 -0600

Back in the days before no-fault divorce, it was important to "get the goods" on the philandering spouse. Images of Sam Spade bursting into a room at the Notell Motel, flashbulb exploding, come to mind.

www.humphreybogart.com

But those days are no more - or are they? A spouse's conduct can affect property division and what rights that spouse will have with respect to the children. Moreover, investigating a spouse can yield other important information unrelated to sexual misconduct - drug or alcohol abuse, criminal activity, gambling and the like. Locating a spouse at a specific point in time also can provide an alibi if that spouse is accused, for example, of assaulting the other spouse at that time.

Although the days of Sam Spade are no more, other sources of information provide opportunities to "track" a spouse in different ways. These ways - some obvious, some not so obvious - include:

Credit card statements: These statements show where a person was, often show what sorts of things were purchased, and can allow estimates of how many people were there (as in restaurant receipts).

Florists: It is amazing that men will use the same florist to send flowers to both their wives and their girlfriends.

Cellphone records: Although a cellphone record cannot pinpoint a person's location, it can yield a wealth of information about who is calling and being called.

Tolltag records: These records allow pinpointing of a person's location at a specific time - assuming, of course, that the car is bring driven by that person.

Have you ever looked at a photo of your house taken from a satellite? Perhaps some day we will be able to track people by photographs from space. For now, other methods must suffice.

Incarceration Not Allowed for Alimony Default

jverner@vernerbrumley.com (Jimmy Verner) — Thu, 23 Aug 2007 10:44:34 -0600

Article I, § 18 of the Texas Constitution is unequivocal: "No person shall ever be imprisoned for debt." However, a person can be imprisoned for failure to pay child support because child support is not considered a "debt" under the law. In In re: Green, 221 S.W.3d 645 (Tex. 2007) (orig. proceeding) (per curiam), the Texas Supreme Court was faced with the issue whether contractual alimony is considered a "debt."

The Court previously had held that alimony is a debt and so could not be enforced by imprisonment upon a finding of contempt. Ex parte Hall, 854 S.W.2d 656 (Tex. 1993). But after the Court decided Hall, the legislature passed the maintenance statute, which permits a court to order spousal maintenance for up to three years if the receiving spouse is disabled, cares for a disabled child, or lacks sufficient earning ability to care for himself or herself.

The question for the Court became whether the obligation to pay any "maintenance" could be enforced by contempt resulting in imprisonment, or whether imprisonment could be a remedy only when a court ordered maintenance under the maintenance statute.

The Texas Supreme Court opted for the latter construction. Contractual alimony, even if ordered by a court, cannot be enforced by contempt resulting in imprisonment if not paid. But maintenance, if ordered in compliance with the maintenance statute, can be enforced by contempt resulting in imprisonment.

Precision Required to Divide Retirement

jverner@vernerbrumley.com (Jimmy Verner) — Thu, 23 Aug 2007 10:16:43 -0600

Dividing retirement benefits is an area of the law that requires using precise language and following rules exactly. The Texas Supreme Court again made this clear in Holmes v. Kent, 221 S.W.3d 622 (Tex. 2007) (per curiam).

Holmes follows an all-too-familiar pattern. The former wife, Ms. McWhorter, was a schoolteacher. Her retirement benefits were through the Teacher Retirement System of Texas ("TRS"). When Ms. McWhorter retired, she designated her husband, Mr. Holmes, to receive an annuity should she predecease him.

Ms. McWhorter and Mr. Holmes later divorced. Prior to the divorce, Ms. McWhorter signed a document retracting the designation of Mr. Holmes to receive the annuity and appointing her son and his wife (the Kents) to receive the annuity instead. The divorce decree contained the usual language awarding Ms. McWhorter all her retirement benefits and divesting Mr. Holmes of any right to them. Ms. McWhorter also changed her will to pass her entire estate to her son.

When TRS received these documents, it notified Ms. McWhorter that the designation was ineffective because only one person, not two, could be awarded an annuity. Further, it told Ms. McWhorter that the language in the divorce decree did not meet TRS requirements and suggested language that would meet those requirements. However, Ms. McWhorter supplied no further documentation, and a year later, she died.

The ensuing litigation pitted the Kents against Mr. Holmes, who claimed that the annuity belonged to him because Ms. McWhorter never had changed her designation with TRS. The Texas Supreme Court agreed, noting TRS' specific requirements for changing an annuity designation and Ms. McWhorter's failure to follow those requirements.

Changing Custody Under Temporary Orders

jverner@vernerbrumley.com (Jimmy Verner) — Thu, 23 Aug 2007 09:20:17 -0600

Texas Family Code § 156.006 sets forth the circumstances under which a trial court may temporarily change custody of a child while a motion to modify is pending. One of the circumstances exists when "the order is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development." On this finding the trial court may "render a temporary order that has the effect of changing the designation of the person who has the exclusive right to designate the primary residence of the child."

So when does a temporary order have the "effect" of changing custody of a child? The San Antonio Court of Appeals considered this issue in In re: Sanchez, 2007 Tex. App. LEXIS 2603 (Tex. App. - San Antonio Apr. 4, 2007, orig. proceeding).

In Sanchez, the mother and father lived in San Antonio, as did the mother's parents. The mother left the child with her parents during the week while she attended vocational school in Houston. The mother was arrested following an unspecified "altercation." The father moved the trial court for temporary orders granting him custody of the child. The trial court ordered that the child stay with the father during the week in San Antonio rather than with the mother's parents.

In the court of appeals, the father argued that the trial court's order did not have the "effect" of changing custody. The court of appeals disagreed, noting that under the prior order, the mother had greater possession and access to the child than the father and the unrestricted right "to establish the child's primary residence anywhere." In summary, the court of appeals identified three factors underlying its decision:

A substantial reduction in the mother's overall possession time;
Restrictions placed on the mother's possession rights; and
The indefinite duration of the temporary orders.

Together, these facts operated to deprive the mother "of any discretion inherent in her right to designate [the child's] principal residence."

When May the Noncustodial Parent Claim Tax Exemptions?

jverner@vernerbrumley.com (Jimmy Verner) — Wed, 01 Aug 2007 17:32:23 -0600

The Internal Revenue Code currently allows a deduction of $3,300 per dependent on federal income tax returns. These deductions are called "exemptions." According to IRC § 152(c)(3), dependents include your children, so long as they have not reached age 19 by the end of that tax year. If a child is a full-time student who has not reached age 24 by the end of the tax year, the child can also be claimed as a dependent.

What happens on divorce or separation? Many who pay child support believe that paying child support entitles them to claim a child as a dependent for tax purposes. This widely-held misconception simply is not true. The key fact to claiming a child as a dependent is whether the parent is the custodial parent. Ordinarily, custodial parents are the ones who are allowed to claim children as dependents, even when the noncustodial parent pays substantial amounts of child support.

IRC § 152(e)(1) sets out the general rule, which is that a child can be claimed as a dependent by the custodial parent. IRC § 152(e)(3)(A) says that "custodial parent" means "the parent with whom a child shared the same principal place of abode for the greater portion of the calendar year."

According to IRC § 152(e)(2)(A), there are two ways in which a noncustodial parent can claim a child as a dependent:

1. The custodial parent signs a Form 8332 ("Release of Claim to Exemption for Child of Divorced or Separated Parents") which the noncustodial parent attaches to his tax return; or

2. The divorce decree, separate maintenance or written separation agreement states that the noncustodial parent shall be entitled to claim a child as a dependent.

What happens if both parents claim the same dependent? The IRS has published what it calls the "Tie-Breaker Rule." Under this rule, the parent with whom the child lived for the longer period of time during the year is awarded the exemption. if the child lived with each parent the same amount of time during the year, then the parent with the higher adjusted gross income is awarded the exemption.