Texas Divorce Attorney Blog

Father’s Motion for New Trial Denied in Texas

Published on: December 26, 2017 | by Kelly McClure

In a Texas child support decision, a father’s attorney told the trial court the couple had reached an agreement about everything but the father’s child support obligation. His attorney told the court what the terms of their agreement were. These included that the mother would decide the kids’ primary residence, and the father would have standard possession with certain modifications. After deciding the amount of the child support payment, the lower court announced it approved their agreement.

The lower court entered a divorce decree, including the terms that had been announced on the record. The decree had a place for the father to sign indicating consent, but he didn’t sign. He asked for a new trial without an attorney, and when that motion was denied, he appealed without an attorney. He presented five issues.

He argued that the mother had instituted a malicious criminal prosecution against him that adversely affected his negotiations during divorce. He claimed there was newly discovered evidence in the form of his cell phone, which had been in the district attorney’s custody previously as proof in an ongoing criminal investigation.

Abusive Spouse Appeals Texas Child Custody Order

Published on: December 19, 2017 | by Francesca Blackard

In a recent Texas appellate decision, a father appealed a divorce decree naming the mother the sole managing conservator of their two kids. The mother had filed for divorce in 2016. When the matter came to trial, the father was serving a 15-year prison sentence for aggravated assault with a deadly weapon and was waiting to go on trial for other issues.

By the time of the trial, their kids were nine years old. At trial, the mother testified that she’d separated from him because of abuse over a period of years. For example, he’d choked her son from an earlier marriage and once thrown her to the ground with a gun to her head and threatened to kill her. The kids were just three and had seen the abuse.

She testified that the kids had seen family violence a lot. Texts were introduced into evidence that also included threats from the father to the mother. An abusive letter from him was introduced. After he was convicted, the mother took the kids to the jail to visit him twice so that they could see he was fine. After the visit, the kids were emotionally affected, and she decided it wasn’t in their best interests to keep visiting him. The kids’ behavior improved after they stopped talking to the father, who the mother believed spoke to them inappropriately, in a way that they could not process.

Default Judgment in a Texas Divorce

Published on: December 9, 2017 | by McClure Law Group

In a recent Texas divorce decision, a woman appealed from a no-answer default divorce judgment that concluded her marriage. The couple had married in 2002 and had two kids. In 2013, the father petitioned for divorce and asked for a disproportionate percentage of the marital estate. He wanted to be appointed the sole managing conservator of the kids with the mother being ordered to pay him child support and obtain a life insurance policy on herself, naming him the sole beneficiary.

A return of service was filed that showed the mother was personally served. However, the mother didn’t answer or appear. The record was minimal until the father got a hearing to obtain a default judgment. Only he appeared. He testified as to what he believed had happened in connection with the separation. He claimed the mother had moved to another state, and she hadn’t seen the kids since moving but called the kids on the phone. He testified he had no insurance for the kids. He didn’t offer further evidence by testimony or through documentary proof.

Afterwards, the court signed a divorce decree that divided the marital property and appointed the father sole managing conservator for both kids. It ordered the mother to pay child support and awarded her retroactive child support. Additionally, retroactive medical support was ordered, and the mother was required to buy a life insurance policy on herself in which the father would be named sole beneficiary.

Termination of Parental Rights in Texas for Placing a Child in an Endangering Environment

Published on: December 2, 2017 | by Kelly McClure

In a recent Texas child custody case, the Texas Department of Family and Protective Services sued to terminate a mother’s parental rights to her daughter. After the jury trial, her parental rights were terminated.

The lower court found that the mother had placed or permitted her child to stay in surroundings that threatened the child’s wellbeing. It also found she’d put the child with people who were involved in activities that were endangering the child. It also found that she’d failed to obey a service plan that set forth actions she had to complete in order to have her child returned, and terminating her rights was in the child’s best interest under Texas Family Code section 161.001(b)(1)(D), (E), and (O).

The mother had two kids, a son and a daughter from different fathers. The son was around 11 years old at the time of trial, while the daughter was 16 months old. While the mother was pregnant with her daughter, the Department got a report that claimed there was domestic violence in her home.

Termination of Parental Rights Due to Child Injury in Texas

Published on: November 22, 2017 | by Francesca Blackard

In a recent Texas child custody case, a mother sought reversal of a judgment that terminated her parental rights to her two kids. The parents were the biological parents of two small kids, one a four-year-old autistic boy and the other a 19-month-old girl. They lived in an apartment, and the father served as the breadwinner, while the mother managed the household and took care of the kids.

The mother suffered from rheumatoid arthritis, and this was one reason she didn’t work outside the home. She was hospitalized for treatment in 2015 and then took medications that made her feel out of it. She needed help from the father when she was on medication.

In December 2015, the father moved out, which was the start of a marital separation. When he left, she stayed in the apartment with their kids. She didn’t have significant resources and had to manage them alone. Her son from a prior relationship visited the family that year. He was 11 and helped the mother.

Modification of Parent-Child Relationship Post-Divorce in Texas

Published on: November 16, 2017 | by Francesca Blackard

In a Texas child custody decision, the appellate court considered child custody and a petition to modify the parent-child relationship. The couple had married in 2010 and had their first child the next year. They separated and got back together multiple times, but they finally separated a last time in 2012, after police were called to stop a domestic fight.

The wife sought and received a two-year protective order against the husband that stopped him from going within 200 yards of her home, her workplace, or the child’s school, except when it was necessary for visitation. The divorce was finalized in 2013. The wife was named the child’s sole managing conservator, and the father was named possessory conservator with visitation rights.

The wife filed a motion for enforcement and a petition to modify a year later. She claimed her ex had violated the divorce decree by not paying child support, not attending an orientation at the neutral exchange location, and not going to therapy. She asked the court to hold her ex-husband in contempt and confine him. The ex-husband sued to reduce his child support obligation. She then asked for another protective order because the ex-husband had violated the original protective order by harassing her with texts in which he labeled her with derogatory names. A new protective order was granted.

Stepmother Petitions to Modify Parent-Child Relationship in Texas

Published on: November 8, 2017 | by Kelly McClure

A Texas child custody case arose after a mother asked the court to grant her plea to the jurisdiction and request for dismissal of a petition to modify the parent-child relationship, which was filed by her children’s stepmother.

The mother and father in the case had divorced in 2011. The court appointed them joint managing conservators of their three kids. The kids lived with the mother, who had the right to choose their primary residence. They spent one night a week and every other weekend with their father. They had dinner with him on a different night once a week.

Two years later, the father was diagnosed with cancer, and the parents modified their child custody order, reducing the father’s child support and life insurance obligations, and adding an overnight on the night the kids ate dinner with him. The former couple agreed that if either parent became incapacitated or died, the kids would continue to have reasonable contact with their extended family on the other side.

Wife Unable to Overcome Community Property Presumption in Texas

Published on: November 2, 2017 | by Kelly McClure

In a recent Texas property division decision, a woman appealed from a final divorce decree. A couple had been married about 30 years when the husband petitioned for divorce. The wife was incarcerated. At a divorce hearing, she appeared without a lawyer and by telephone because of her incarceration. The lower court gave her 15 days to file exhibits and permitted the husband another 15 days to object. The wife sent copies of her exhibits and also sent a settlement offer to the husband’s attorney. There were no objections to the copy she filed with the court, or any of her exhibits submitted to the court.

Her divorce was granted, and the community real property and other assets were ordered to be sold with the proceeds split between the husband and the wife equally. The wife appealed, complaining of mistakes about how the property was divided.

The appellate court explained that the court can divide the community estate during a divorce under Texas Family Code section 7.001. It cannot divide separate property. The appellate court that reviews property distribution is supposed to look at whether there was enough evidence upon which the lower court could exercise discretion, and whether the lower court erred in applying its discretion.

Erroneous Calculation of Texas Child Support Award

Published on: October 23, 2017 | by McClure Law Group

In a recent Texas appellate decision, a woman appealed the amount of the lower court’s award of monthly child support. She argued that it had been erroneously calculated. The case arose when a couple married in 1992 and had two kids. The mother sued for divorce. The court named her and the father as joint managing conservators with standard visitation. The father was ordered to pay $1,460.91 per month in child support, as well as provide health insurance for the kids. This amount was to be paid until their oldest kid either turned 18 or graduated from high school, and then it would be reduced to $1,168.73. The father was also ordered to provide health insurance for both children.

The mother asked for factual findings. The court found that the father had testified he made $174,000.00 in 2013. The court found that the presumptive amount established by the Guidelines was to be applied to his first $8,550.00 of net resources. Any amount beyond that required the court to look at the parties’ income and the child’s proven needs. The lower court calculated the amount based on the Guidelines for both kids.

The mother appealed, arguing that the lower court had conflated the father’s net monthly income with his gross monthly wages to decide child support. The appellate court found that the only issue was whether the lower court had calculated the amount of child support correctly. It noted that the lower court had broad discretion to determine child support, and it would review its decision under an abuse of discretion standard. There is an abuse of discretion if the lower court’s decision is arbitrary, unreasonable, or made without referring to guiding principles.

Partitioning a Marital Home After an Ex-Spouse’s Death

Published on: October 16, 2017 | by Francesca Blackard

In a recent Texas divorce case, a couple was divorced in 2006. The wife initiated divorce proceedings, and the couple went to mediation. They agreed on a divorce decree and split a house and lot 50-50. The order included a procedure for selling the property, which was that the property was to be listed with a realtor. The realtor would select a price that was at least $77,000. The sale price would be reduced below $77,000 only by written agreement. If there was an offer that met the $77,000 threshold, both parties still had to accept it.

The husband had the right of first refusal of a bona fide offer by paying the woman half of the offer, minus the mortgage amount and 6% realtor fee. Either of the spouses could ask the court to appoint a receiver. The agreement also stated that if the husband failed to pay his wife half of the equity in the house within 30 days of an offer being made, the house would be sold for the offer made, with the couple splitting the funds remaining equally after the costs of the sale were paid.

When the ex-husband died in 2016, the ex-wife sued to enforce the divorce decree. She alleged that the husband had died, and the executrix of his estate had deeded the property to herself as an individual. The independent executrix of the ex-husband’s estate responded. She argued that the ex-wife wasn’t entitled to the relief she sought because the trial court didn’t have jurisdiction, and the claim was barred totally or partially by the statute of limitations or laches.