Texas Divorce Attorney Blog

Texas Court Cannot Consider Extrinsic Evidence in Collateral Attack on Custody Jurisdiction

Published on: February 25, 2024 | by Francesca Blackard

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified in Chapter 152 of the Texas Family Code addresses how to determine jurisdiction in custody matters involving more than one state. Generally, a Texas trial court that made a custody determination consistent with § 152.201 or 152.203 retains continuing jurisdiction until a court makes certain determinations regarding a lack of significant connection to the state or residence. Tex. Fam. Code § 152.202.

In a recent case, a mother appealed following a modification, arguing the trial court had not acquired custody jurisdiction in the original divorce case because Colorado had subject-matter jurisdiction over the children pursuant to the UCCJEA.

Procedural History

According to the appeals court’s opinion, the trial court entered an agreed final divorce decree in 2017 that named the parents joint managing conservators of their two children. The mother was awarded the exclusive right to designate the children’s primary residence until they turned twelve, with no geographic limitations.

Texas Court Denies Ex-Wife Postjudgment Interest on Accounts Awarded in Divorce

Published on: February 19, 2024 | by Kelly McClure

Appeals of a Texas divorce can be lengthy and may sometimes result in a significant delay in a party receiving the assets they were awarded in the decree. In some cases, courts may award postjudgment interest on a money judgment. In a recent case, a Texas appeals court considered whether an award of a brokerage account in a divorce property division authorized postjudgment interest.

Case History

According to the appeals court’s opinion, the parties got married in the early 1990s and divorced in 2018. The decree awarded the wife two investment accounts, together valued at $548,177.25. The decree also awarded her the equivalent value of $1,062,242.20. The accounts were invested and therefore fluctuated in value. The decree provided that the accounts were to be divided as “more particularly defined in a Qualified Domestic Relations Order signed by the Court.” The decree did not state the amounts of cash or securities held in the accounts, but did include “interest, dividends, gains, or losses” on the awards.

The husband appealed, but the appeals court affirmed the property division and the Texas Supreme Court denied review. The appeal was not resolved until April 19, 2021, and the wife was denied access to the accounts while the appeal was pending. She requested interest on their value, but the trial court concluded the awards were not “money judgments” and denied the request for interest.

Texas Appeals Court Rejects Challenge to Jury Charge in Divorce Case

Published on: February 14, 2024 | by Kelly McClure

In a jury trial, the court must submit to the jury the instructions and definitions needed for it to render a verdict. The court cannot comment directly on the weight of the evidence, but an incidental comment on the weight of the evidence may be acceptable. Tex. R. Civ. P. 277. A husband recently appealed his divorce decree, arguing the trial court erred in failing to give a requested jury instruction and improperly commenting on the weight of the evidence.

The Trial

According to the appeals court, the husband petitioned for divorce in August 2019, seeking a disproportionate share of the marital estate and alleging the wife committed fraud on the marriage. He asked the court to confirm the marital residence was part separate property and set aside a 2019 gift warranty deed conveying it to the wife. He alleged the deed was “done by mistake, undue influence, and under duress.”

The wife disputed the husband’s claims of mistake or fraud. She also sought a disproportionate share of the property and requested exclusive possession and use of the residence.

Fraud on the Community in Texas Divorce

Published on: February 10, 2024 | by Francesca Blackard

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.

Texas Court Made Improper Substantive Change to Property Division with Order Striking Dollar Amounts

Published on: February 9, 2024 | by Kelly McClure

A trial court in a Texas divorce retains subject matter jurisdiction to enforce a decree or to clarify ambiguity in the decree. Texas strongly favors finality of judgment, so the court may not make substantive changes to the property division in a divorce decree once it has become final. The court does not have the authority to “amend, modify, alter, or change” the final property division despite errors in characterizing the property or applying the law. The court may, however, issue orders to clarify an ambiguous decree or to enforce the decree. A court interprets a Texas divorce decree according to the plain language of the decree. The court must interpret the decree as a whole and give effect to all provisions. A former wife recently challenged a court order purporting to clarify the final divorce decree, arguing it substantively changed the property division.

Divorce Decree and Subsequent Order

The trial court filed with the clerk and sent the parties a letter rendering the property division following the bench trial. The letter awarded to the wife as separate property 50% of three specified accounts and 50% of any stocks, options, or retirement accounts that were not listed in the letter but had vested as of a specified date. The court directed the husband’s counsel to draft a decree comporting with the letter rendition.

The husband’s attorney added details that were not expressly included in the letter. He specified the date when the balances would be calculated for the property division and included a dollar amount for each account. The parties’ attorneys approved the draft divorce decree as to form. The trial court signed the decree as drafted by the husband’s attorney. The decree became final without either party appealing.

Texas Appeals Court Affirms Custody Modification Contrary to Child’s Preference

Published on: February 4, 2024 | by Kelly McClure

In a Texas nonjury custody proceeding, upon the request of a party or certain other interested individuals, the court must interview a child who is at least 12 years old or may interview a child under 12 in chambers to determine their wishes regarding conservatorship or the person who will have the exclusive right to determine their primary residence. Tex. Fam. Code § 153.009(a). The interview is intended to help the court make determinations regarding conservatorship and possession, but the court still has discretion to determine the child’s best interest. Tex. Fam. Code § 153.009(c). Case law has held that the court retains its broad discretion and can either consider the information from the interview or even ignore it. In re A.C. A father recently appealed a modification order that was not consistent with the child’s preference.

The parents were appointed joint managing conservators of their then two-year-old child in their 2009 divorce, with the father having the exclusive right to designate the child’s primary residence. A modification order in 2013 set forth the mother’s possession schedule, dependent on where she lived.

Modification Proceeding

The mother petitioned for modification in 2021, seeking the right to designate the child’s primary residence without a geographic restriction. She also asked that the father be limited to supervised visitation.

Texas Divorce Decree Must Generally Comply with Mediated Settlement Agreement

Published on: January 31, 2024 | by Francesca Blackard

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.

Texas Appeals Court Affirms Modification Making Mother Sole Managing Conservator

Published on: January 29, 2024 | by Kelly McClure

A parent seeking modification of a Texas custody order must prove a material and substantial change in circumstances has occurred and that the modification would be in the child’s best interest. Tex. Fam. Code § 156.101. A father recently appealed an order naming the mother sole managing conservator of their three children after the parents had previously shared joint managing conservatorship.

The parents’ agreed divorce decree named them both joint managing conservators of their three children and gave the mother the exclusive right to designate their primary residence.

According to the appeals court’s opinion, the father refused to give their two daughters back to the mother after his holiday visitation. He alleged it was unsafe for the girls to go back to the mother’s home with the son because the son had assaulted one of the daughters.

Texas Appeals Court Concludes “Build Provision” in Divorce Decree Not Ambiguous

Published on: January 7, 2024 | by Francesca Blackard

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.

Texas Parent Seeking Modification of Custody Must Meet Burden of Proof When Other Party Defaults

Published on: December 30, 2023 | by Kelly McClure

A parent seeking modification of a Texas conservatorship order must show by a preponderance of the evidence that there has been a material and substantial change in circumstances and that the modification would be in the child’s best interest. A Texas appeals court recently held that the parent must meet this burden even if the other party defaults.

According to the appeals court’s opinion, the child was born in October 2019. The trial court signed an agreed order in February 2020 establishing paternity, naming both parents joint managing conservators, and awarding the mother the right to designate the child’s primary residence as well as other exclusive rights. The father had a modified possession schedule that started with supervised visitation and transitioned to unsupervised possession, and then a standard possession order after a specified number of visits.

Modification Proceeding

The father petitioned for modification, seeking a standard possession order without supervision. The mother did not appear at the hearings, and the court granted the requested order.