Spouses have a fiduciary duty toward each other with regard to the community estate and commit fraud on the community if they breach a legal or equitable duty in violation of the fiduciary relationship.  Fraud on the community often occurs when assets are transferred to a third party, but can also occur when it is unaccounted for.

If a court determines a spouse committed fraud, it must determine the amount the community estate was depleted and the total value it would have had absent the fraud.  The trial court then divides the reconstituted estate in a just and right manner, which may include awarding the other spouse a disproportionate share of the community estate, a money judgment, or both.  Tex. Fam. Code § 7.009.  A husband recently appealed the trial court’s finding of fraud, judgments, and property division in his Texas divorce.

The Marriage

According to the appeals court’s opinion, the husband owned a home when the parties married in 2002.

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If the parties in a Texas custody case reach a Mediated Settlement Agreement (“MSA”), the court must enter judgment on the MSA.  The MSA is binding if it meets the three requirements set out in Tex. Fam. Code § 153.0071(d).  First, it must prominently state that it is not subject to revocation. It must also be signed by the parties.  Finally, it must also be signed by any party’s attorney who is present at execution.  The court may, however, decline to enter judgment on an MSA if it finds that a party was the victim of family violence which impaired their ability to make decisions and that the agreement is not in the best interest of the child.  Tex. Fam. Code § 153.0071(e-1). Unless this exception applies, the trial court generally does not have the discretion to deviate from the MSA and a party is entitled to judgment on the MSA.  A court’s order may include terms that are necessary to implement the MSA, but it may not substantially alter the MSA. A father recently challenged a divorce decree that did not compart with the parties’ MSA with regards to where exchanges were to occur.

Mediated Settlement Agreement

The parents had two children together during their marriage. They separated in 2020 and signed an MSA in October 2021.  Pursuant to the MSA, the parents would be joint managing conservators and the mother would have the right to determine the children’s primary residence.  The MSA further gave the father a standard possession order which would be an expanded standard possession order if he lived within 50 miles of the children.  It also provided that the exchange location would be at a particular McDonald’s in Huntsville with a pickup time of 8 p.m. and a drop-off time of 5 p.m. as long as the father and children lived in the current locations, with provisions for changing the location if the parents lived in the same county.

At the hearing, the mother’ attorney claimed that the MSA was intended to state that the parties would only meet in Huntsville once a month instead of for all the exchanges. The father’s attorney argued, however, that the provision stated what the father wanted with regard to exchanges.

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A Texas divorce decree provision that was agreed upon by the parties is construed according to contract principles.  In interpreting the contract, the court considers the entire agreement.  Words are given their plain meaning unless there is an indication the parties intended something else.  A contract is not ambiguous if it can be interpreted with a definite legal meaning.  It is ambiguous if it is subject to more than one reasonable interpretation.  Generally, a court may only consider outside evidence to interpret an ambiguous contract.  A husband recently challenged a trial court’s denial of his petition for enforcement of the property division in his divorce decree.

The parties’ 2017 divorce decree included agreed property-division provisions that awarded the wife a 2.6 acre lot “as her sole and separate property.” The decree divested the husband of all right, title, interest and claim to the lot.  It also included a conditional provision that the wife “begin the process of building” a home on the lot, with the property reverting back to the husband if she failed to comply.  The decree did not include a time by which the wife had to comply nor did it define what was meant by “begin” or “the process of building.” The wife was prohibited from selling the lot for commercial purposes and was required to give the husband a first right of purchase option.

The wife did not complete building a house on the lot and the husband filed a petition for enforcement.  He alleged that the wife had not begun “the process of building a permanent, fixed home structure” on the lot. He asked the court to order her to execute a general warranty deed.

The trial court denied the petition after a hearing and the husband appealed. The husband argued on appeal that the decree was ambiguous and that the trial court erred in not clarifying it and enforcing the clarified decree.

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The relief granted by a court generally must conform to the pleadings of the parties, unless the parties consent to try an issue that was not included in the pleadings.  In a recent Texas custody case, a father appealed a court order that he argued not only did not conform to the pleadings, but was also contrary to the court’s findings and not supported by evidence.

The parents lived together for the first two years of the child’s life, but did not get married.  The child lived with the mother after they separated.

The father petitioned for appointment as joint managing conservator with the exclusive right to designate the child’s primary residence.  He also requested a geographic restriction.  Pursuant to a mediated settlement agreement (“MSA”), the court issued temporary orders appointing both parents joint managing conservators with the mother having the exclusive right to designate the child’s primary residence in Fannin and contiguous counties.  The temporary orders also gave each parent the right to consent to medical treatment and education, subject to the other parent’s consent.  The parents shared visitation under the temporary orders, alternating weeks with the child.

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The court in a Texas divorce must make a just and right division of the marital estate.  The estate does not have to be equally divided if there is a reasonable basis in the record for an unequal division.  A former husband recently challenged, for the second time, the property division in his divorce.

The First Appeal

In his first appeal, the husband argued the trial court erred in its property division by including the value of a condominium that he claimed belonged to his father.  The appeals court concluded the condominium belonged to the husband, wife, and the husband’s father and that the trial court had erred in including its total value in the community estate.  The appeals court determined including only the two spouses’ interest in the valuation of the community estate would materially affect the property division, it remanded to the trial court for a just and right division.

The trial court signed an order on remand that stated its original community property division was just and right.  Furthermore, the trial court awarded the wife appellate attorney’s fees.

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Texas custody orders commonly include geographic restrictions limiting a parent’s ability to relocate the children outside a specified area.  Regardless of whether there is a geographic restriction, a parent may seek to prevent the other parent from relocating with the children, often through modification of the custody order to either modify or add a geographic restriction or to change the parent with the exclusive right to designate the children’s primary residence.  A mother recently challenged a modification giving the father the right to establish the children’s primary residence after she provided him notice of her intent to move to another county.

According to the appeals court’s opinion, the parties were appointed joint managing conservators with equal possession in the agreed final divorce decree.  The mother was awarded the exclusive right to establish the primary residence for their two children, with a geographic restriction.

Pursuant to the decree, the mother could move the children to Harris or Dallas County if she provided the father six months’ notice of her intent to relocate and if the father successfully “secure[d] a transfer in employment” to that county.  She notified him in 2020 that she intended to move to Harris County.

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In some circumstances, a court may order supervised visitation in a Texas custody case if necessary to protect the child’s health and safety.  Supervised visitation allows the parent and child to maintain their relationship, while protecting he child’s safety.  A father recently appealed a modification order requiring him to comply with certain conditions, including supervised visitation.

In the parents’ final divorce decree, they were both appointed joint managing conservators of the children.  The mother was awarded the exclusive right to designate the residence of the children within a specified county.  The decree required the father to maintain a Soberlink subscription, attend Alcoholics Anonymous, and have supervised visitation.

The trial court modified the parent-child relationship after finding the father was in contempt of the decree in January 2021. The modification order required the father’s visitation to be supervised in accordance with the conditions set out in the order.  He was required to have an “adult assistant/babysitter present” who stayed within line of sight and hearing of the father and children any time he had possession.  The assistant/babysitter was required to stay within line of sight and hearing of the father and children.  The parties were to mutually agree upon the assistant/babysitter, or the court would designate one.  The court stated its ruling resulted from the contempt finding.

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Trial courts are permitted to award Texas spousal maintenance in only limited circumstances.  If the spouse meets the eligibility requirements for maintenance, the court must consider a number of factors to determine the nature, amount, and duration.  Tex. Fam. Code § 8.052. Spousal maintenance is limited to the lesser of $5,000.00 or 20% of the spouse’s average monthly gross income. Certain items are excluded from “gross income,” including service-connected Veterans Affairs disability payments, supplemental security income (“SSI”), social security benefits, or disability benefits. Tex. Fam. Code § 8.055.  A husband recently challenged an order requiring him to pay spousal maintenance.

Wife Seeks Spousal Maintenance

According to the appeals court’s opinion, the parties got married in 2006 and the wife filed for divorce in 2019.  The wife sought spousal maintenance pursuant to Chapter 8 of the Texas Family Code and based on “contractual alimony.” She testified she was unable to work due to medical issues.  She said she lived with her daughter and did not have any income.

The wife testified the husband received $3,809.02 monthly from the Department of Veterans Affairs (“VA”) and $816 per month in social security.  She also testified that he also earned income by performing in a band.  She said he was paid under the table and was unable to estimate how much he earned.

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A trial court in a Texas divorce case has discretion in how the trial is conducted, but that discretion is not unlimited.  In a recent case, the appeals court determined the trial court abused its discretion by imposing time restrictions that allowed the husband more time to present the case than it allowed the wife and by refusing the wife’s request to present an offer of proof.

According to the appeals court’s opinion, the divorce decree awarded the wife the marital residence; the entire community interest in a business; three of the business’s bank accounts, with the husband receiving half of the funds in them; and the household furniture and other personal property in her possession or control.  The husband was awarded 50% of the equity in the house; certain assets from the business; the furniture and other personal property in his possession or control; and 50% of the business’s accounts receivable.

Enforcement Hearing

The husband filed a motion asking the court to enforce the property division by contempt.

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Pursuant to Texas Fam. Code § 8.051, the court may award Texas spousal maintenance to a spouse who lacks sufficient resources to provide for their own minimum reasonable needs if the other spouse was convicted of or received deferred adjudication for a criminal offense that constituted an act of family violence against the spouse or the spouse’s child and the offense occurred within two years before the divorce case was filed or while it was pending.  Additionally, the court may award maintenance to a spouse who lacks sufficient resources to provide for their own minimum needs if they: are unable to earn sufficient income to provide for their minimum reasonable needs due to an incapacitating disability; lack the ability to earn sufficient income after being married to the other spouse for at least 10 years; or are the custodian of the parties’ child with a disability who requires substantial care and supervision that prevents the custodial parent from earning sufficient income.  A husband recently appealed a spousal maintenance award, arguing there was insufficient evidence that the wife was eligible for maintenance.

Wife Seeks Spousal Maintenance

The husband petitioned for divorce after seven years of marriage, alleging insupportability.  He requested the court to appoint the parties joint managing conservators of their child.

The wife also alleged the marriage was insupportable, but also alleged cruel treatment and “a history or pattern of committing family violence” by the husband.  She alleged she would not have adequate resources to meet her minimum reasonable needs and sought spousal maintenance.  She claimed she was eligible to receive spousal maintenance as a result of “domestic violence.”

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