Francesca Blackard, Author at Texas Divorce Attorney Blog

Texas Appeals Court Affirms Custody Modification Despite Mother’s Decision Not to Relocate

Published on: November 27, 2023 | by Francesca Blackard

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.

Texas Appeals Court Affirms Supervised Visitation and Other Requirements

Published on: November 14, 2023 | by Francesca Blackard

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.

Texas Appeals Court Reverses Spousal Maintenance Award

Published on: November 6, 2023 | by Francesca Blackard

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.

Texas Enforcement Order Reversed Due to Due Process Issues at Hearing

Published on: October 13, 2023 | by Francesca Blackard

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.

Texas Spousal Maintenance

Published on: September 25, 2023 | by Francesca Blackard

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.”

Characterization of Personal Injury Recovery in Texas Divorce

Published on: September 4, 2023 | by Francesca Blackard

The characterization of funds received for personal injuries can be a complex issue in a Texas divorce. Texas family law presumes that property possessed by a spouse during or on dissolution of the marriage is community property. When a spouse claims certain property is separate, that spouse must prove by clear and convincing evidence that the property is separate. Tex. Fam. Code § 3.003. Pursuant to Tex. Fam. Code 3.001, recovery for personal injuries sustained during the marriage is separate property. There is an exception, however, for recovery for lost earning capacity during the marriage. Because a spouse claiming separate property has the burden of proof, that spouse must show by clear and convincing evidence what part of a personal injury settlement is separate property. Recently, a husband appealed the trial court’s ruling which characterized his personal injury recovery as community property.

Personal Injury Settlement

According to the appeals court, the husband and wife married in 1994 and lived separately at various times during the marriage. In December 2014, husband was injured as the result of an automobile accident in the scope of his employment. The parties were separated when the accident occurred, but subsequently reconciled.

The husband settled for the other driver’s policy limits of $30,000. He also received net proceeds of $710,724.25 from a settlement with his employer’s under-insured motorist coverage. Thereafter, his attorneys transferred those funds into the parties’ joint checking account on October 8, 2019. The parties then separated that month and the wife filed a divorce petition on November 1.

Texas Appeals Court Upholds Business Property Valuation in Divorce Case

Published on: August 28, 2023 | by Francesca Blackard

Businesses can be difficult to accurately value in a Texas divorce. A wife recently challenged a property division involving two businesses, arguing the court had insufficient evidence to make the just and right division.

When the husband filed for divorce, each party pleaded the marriage was insupportable. The wife also pleaded the husband had committed adultery.

According to the appeals court’s opinion, the significant assets were a business operated by the wife, an interest in a pool-installation business operated by the husband, the houses each party lived in, two rental properties, a house in Mexico, an interest in two lots where the pool installation business was located, several vehicles, and several bank accounts and a CD.

Texas Appeals Court Reverses Summary Judgment in Custody Modification Case

Published on: August 6, 2023 | by Francesca Blackard

Generally, when a parent seeks modification of a Texas custody or visitation order, they must show that they modification would be in the child’s best interest and that there has been a material and substantial change in circumstances since the earlier of the prior order’s rendition or the date the mediated or collaborative law settlement agreement upon which the prior order was based was signed. Tex. Fam. Code 156.101. Whether there have been material and substantial changes is a significant issue in many modification cases. In a recent case, a father challenged an order granting a no-evidence summary judgment in favor of the mother and disposing of his claims for modification.

Pursuant to the parents’ mediated settlement agreement and agreed order, neither had the exclusive right to designate the primary residence of the child, but instead each parent had the right to establish the primary residence during their possession periods within 15 miles of the child’s school. The mother, however, was permitted to establish the primary residence during her possession at her home until she moved. Possession alternated weekly during the school year and every two weeks during the summer break.

Father Seeks Modification

In January 2021, the father moved to modify the order, alleging material and substantial changes in circumstances. He requested the exclusive right to designate the child’s primary residence and to make a number of decisions, including to enroll the child in team sports. He also asked that the mother be enjoined from enrolling the child in extracurricular activities that would occur during his possession. He also asked for the right of first refusal and an expansion of the geographic restriction to two counties.

Texas Court Awards Husband Frozen Embryos in Divorce

Published on: July 26, 2023 | by Francesca Blackard

Fertility treatments and assisted reproductive techniques can be a miracle for many families. They may also, however, lead to complicated family law issues. A former wife recently appealed a judgment awarding frozen embryos to her former husband in the divorce.

According to the appeals court’s opinion, the parties utilized IVF treatment and still had three embryos in cryogenic storage at the time of the divorce.

The parties signed a “Consent Form Cryopreservation of Embryos” (“Agreement”) that addressed the storage of the embryos and made them subject to the disposition of the husband if the parties divorced.

Texas Appeals Court Upholds Divorce Decree Following Arbitration Award

Published on: May 23, 2023 | by Francesca Blackard

iStock-1287431987-300x200 Parties to a Texas divorce may choose to pursue alternative dispute resolution to avoid litigation. They may resolve part or all of their disputes through mediation. A mediated settlement agreement (“MSA”) is binging on both parties if it prominently states that it is not subject to revocation, is signed by both parties, and is signed by the party’s attorney, if present. Tex. Fam. Code Ann. § 6.602. In some cases, an MSA may include an arbitration provision, requiring the parties to arbitrate disputes arising from the MSA. A wife recently appealed the divorce decree, arguing it did not comply with the parties’ MSA and that the judgment based on the arbitrator’s award should be overturned.

Mediation and Arbitration

The husband and wife entered into a mediated settlement agreement (“MSA”), agreeing to use a specific realtor to sell their properties. According to the appeals court’s opinion, the husband obtained a new realter after the wife informed him the chosen realtor “declined” to sell their properties. That realtor found errors in the deed and recommended referred them to real estate attorneys.

The parties did not agree on which realtor to use or if they should have the documents corrected by an attorney. Arbitration had been scheduled, with the arbitrator being the same person who had served as the parties’ mediator. The wife obtained new counsel, who objected to the arbitrator due to concerns about impartiality. He also expressed an intention to move for a new trial or set aside the MSA. He alleged the husband’s attorney failed to disclose a working relationship with the mediator before the mediation occurred. However, there were emails showing the husband’s attorney had disclosed to the wife’s previous attorney that she previously had been an intern with the mediator and the wife’s attorney had no objection to the mediator. Additionally, she disclosed the same information to the wife’s second counsel by phone, and the mediator stated before the mediation started that the husband’s attorney had been an intern, and there were no objections.