Texas Divorce Attorney Blog

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 Court Denies Retroactive Termination of Child Support to Child’s 18th Birthday

Published on: October 30, 2023 | by Kelly McClure

A court may retroactively modify a Texas child support order in some circumstances, but it generally may only do so as to child support obligations that accrue after the earlier of the date of service of citation or an appearance in the modification suit. Tex. Fam. Code 156.401. A father recently challenged a modification terminating his child support obligation, arguing it should have applied retroactively to the date of his son’s eighteenth birthday.

When the son was fourteen, he enrolled in the American School, which is a private, distance-learning school. Students complete their course by correspondence and computer-based work. Students take two courses at a time and must complete a course before being provided another. Courses earn one-half to one unit, and students must earn eighteen units to graduate high school.

The son’s brother sadly died in April 2017. The mother moved out of the marital home in June and the parents filed for divorce in July. The son remained in the home with his father. With all of this going on, the son fell behind and performed no work for his courses for a period of nine to ten months.

Texas Appeals Court Vacates Appointment of Receiver as Improper Modification of Property Division

Published on: October 27, 2023 | by Kelly McClure

A trial court may not amend, modify, alter or change the substantive property division in a divorce decree after expiration of its plenary power. The court retains jurisdiction, however, to enforce or clarify the property division in the divorce decree. A former husband recently appealed a trial court’s appointment of a receiver for the marital residence, arguing it constituted an improper modification of the property division set forth in the divorce decree.

Divorce Proceedings

The parties got married in 2009 and separated in October 2020, according to the appeals court’s opinion. The wife petitioned for divorce in November 2020, and the husband filed a counterpetition. In its written ruling, the trial court indicated the marital home would be sold with the proceeds equally divided. The ruling stated the husband was allowed to stay in the house until the sale.

No Violation of Due Process Based on Emails with the Court after Texas Divorce Trial

Published on: October 20, 2023 | by Kelly McClure

Both the Fourteenth Amendment to the U.S. Constitution and the Texas Constitution prohibit the state from depriving a person of a liberty interest without due process of law. Case law has established that parental rights are fundamental liberty interests. Due process generally requires that a person be given a meaningful opportunity to be heard. A mother recently appealed her divorce decree, arguing she was deprived of her due process when the court accepted evidence after trial but before entering the final decree.

According to the appeals court, the child was born in March 2020 and the father filed for divorce the following August. In its ruling, the trial court named the parties joint managing conservators and awarded the father the exclusive right to designate the child’s primary residence within two counties. The final decree divided the marital estate, awarding the father $104,738.93 and the mother $69,825.95 from the sale of the home.

Due Process Claims

The mother appealed, arguing the trial court violated her due process rights by accepting certain evidence after the trial.

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 Court May Clarify Ambiguous Property Division

Published on: October 6, 2023 | by Kelly McClure

Once its plenary power has expired, a trial court cannot change the substantive property division stated in a final Texas divorce decree. It does, however, retain the power to clarify or enforce that property division. A Qualified Domestic Relations Order (“QDRO”) is a post-divorce enforcement order and therefore cannot change the property division. A QDRO can, however, specify how the property division can be carried out, without altering the substantive property division. If the QDRO substantively alters the property division, then it is void and may be amended to comport with the division in the decree. A wife recently challenged a clarification order addressing the division of the husband’s 401(k).

According to the appeals court’s opinion, the parties executed a mediated settlement agreement (“MSA”) that incorporated a spreadsheet dividing the marital estate. That spreadsheet indicated the parties would each receive half of $92,916.50 from the 401(k).

The final decree incorporated the MSA by reference and ordered the parties “to do all things necessary to effectuate” it. The decree awarded the husband the entire balance of the 401(k) “as reflected on [the spreadsheet]” except for the part awarded to the wife by the decree.

Court Has Broad Discretion in Determining Texas Custody

Published on: September 29, 2023 | by Kelly McClure

The court’s primary consideration in determining Texas custody is the best interest of the child. Tex. Fam. Code § 153.002. There is a rebuttable presumption that the parents being named joint managing conservators is in the child’s best interest. Tex. Fam. Code § 153.131. When a court names parents joint managing conservators, it must also designate which of them has the exclusive right to determine the child’s primary residence. Custody matters are highly fact-based, and the court generally has broad discretion in determining the child’s best interest and deciding who will have the exclusive right to determine the child’s primary residence. A father recently challenged the custody, child support, and property division in his divorce.

Custody

The parties separated after fourteen years of marriage. They had two children together. The trial court named both parents joint managing conservators with the mother having the exclusive rights to designate the children’s primary residence, receive child support, and make educational decisions.

According to the appeals court, the record showed that one of the children said she would “rather stay with mom.” The mother testified she had been the parent who took care of the children when they were sick, took them to medical appointments, prepared food, helped with homework, and put them to bed. She testified she thought it was in the children’s best interest to live with her. She alleged the father drank too much around the children.

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.”

Texas Fit Parent Presumption Not Applicable in Certain Modification Proceedings

Published on: September 20, 2023 | by Kelly McClure

Texas family law has a rebuttable presumption that it is in the child’s best interest for the parents to be appointed joint managing conservators. Additionally, generally a parent must be named sole managing conservator or both parents named joint managing conservators unless there is a finding such appointment would not be in the child’s best interest because it would significantly impair the health or emotional development of the child. Tex. Fam. Code 153.131.

A maternal great-grandmother recently appealed a modification appointing the father sole managing conservator.

According to the appeals court’s opinion, the parents’ divorce decree in 2016 had named the mother sole managing conservator and the father possessory conservator. A subsequent order appointed both parents temporary joint managing conservators, but gave the great-grandmother sole possession. A subsequent order in 2019 named the mother and great-grandmother joint managing conservators with the great-grandmother having the exclusive right to designate the child’s primary residence. The order stated the father had failed to appear at trial and defaulted. He was appointed possessory conservator.