Texas Divorce Attorney Blog

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.

Protective Order as a Result of Family Violence During Texas Divorce

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

A recent Texas divorce appeal arose after a wife filed for a protective order against her husband. She asked for the protective order after her husband and her father had a physical fight at a pet cemetery when the group was trying to bury a dead family dog. Divorce proceedings had commenced by then.

At the graveyard were the husband and wife, their children, the wife’s father, and his wife. While the husband and father were digging with their shovels, the father’s shovel touched the husband’s scalp. He apologized to the husband and said it was an accident. However, the father didn’t believe the apology, and a fight broke out. The father was hit and kicked by his son-in-law, who later claimed he acted in self-defense. The trial judge determined that the husband had perpetrated family violence and would likely do so again. The wife was awarded a protective order and attorney’s fees.

The husband argued that there wasn’t enough legal or factual evidence to support the order and appealed. He argued it should be reversed. The appellate court explained it would need to decide whether the evidence submitted would allow a reasonable fact finder to get to the same conclusion. If it would, the evidence was enough to support the finding. In looking at whether the evidence was factually sufficient, it didn’t need to defer to the evidence that supported the decision. Instead, it had to consider all of the evidence in a neutral light and decide whether the finding cut so far against the preponderance of evidence as to be manifestly unjust or wrong.

Deviation from Standard Possession Order in Texas

Published on: October 2, 2017 | by Kelly McClure

It is crucial to retain an experienced Texas child custody attorney and obtain a clear record at the lower court level. In a recent Texas appellate decision, a mother appealed from a court’s decision in a lawsuit to modify the parent-child relationship. She argued that she and the father shouldn’t have been named joint managing conservators with her access being supervised. She also argued that the access the trial court gave was below the minimum access established by the Family Code’s standard possession order. She further argued that evidence wasn’t identified.

The case arose when a child’s parents divorced in 2011. The court appointed the parents as joint managing conservators. The mother had the right to decide the primary residence of the child, while the father simply had the right to visit. Three years later, the father petitioned for a modification, wanting the exclusive right to decide the child’s primary residence. He asked the court to deny the mother access or that her visits be supervised on the grounds that she physically abused the child, smoked and drank too much around the child, and moved around the city and had pulled the child out of school multiple times. The father also claimed the child was terrified of the mother’s new husband.

The lower court granted the father’s request. The mother appealed. She didn’t file a reporter’s record or follow the proper procedure, but she presumed the proof submitted supported the order. The appellate court explained that the child’s best interest is the lower court’s main consideration when deciding conservatorship under Tex. Fam. Code Ann. § 153.002. The lower court can modify possession or access only when it’s in the child’s best interests, and the child’s circumstances have materially and substantially changed.

Family Violence Exception and Texas Mediated Settlement Agreements

Published on: October 1, 2017 | by Kelly McClure

In a recent Texas child support case, a mother appealed after the trial court enforced a mediated settlement agreement. She argued it was an error to enforce it because: (1) it included a child support provision that violated public policy, (2) the mother took back her consent before it was approved, and (3) she wasn’t allowed to give evidence to bolster her family violence exception argument.

The case arose several years after a divorce. The parents mediated the matter and signed an irrevocable mediated settlement agreement, in which they agreed to different terms related to child support. The mediated settlement agreement included a provision under which there would be a limited standstill period, during which nobody would ask for child support increases.

The couple had signed the agreement and filed it. The agreement stated that it was meant to be a full and final settlement and that the parents had voluntarily signed it.

Texas Child Support Modification Deviates from Statutory Guidelines

Published on: September 30, 2017 | by Kelly McClure

In a recent Texas appellate case, the lower court’s SAPCR order granting a child support modification for the mother was appealed by the father. The father argued the trial court shouldn’t have set the periodic child support obligation to be more than the statutory child support guidelines provided and found a material and substantial change in circumstances affecting either the parents or the kids that would warrant a modification.

The mother and father got divorced in 2013 after coming to a mediated settlement agreement. They were named joint managing conservators of their kids. The father was allowed to have possession for certain periods, and he had to pay the mother monthly child support until they reached 18 years old. There were two kids.

The father sought relief regarding one of the kids when she turned 18. However, he didn’t pursue it at the time of trial. The mother counter-petitioned, asking to modify the parent-child relationship and asking for child support that exceeded the statutory guideline for the other child.

Gift Given Before Texas Marriage

Published on: September 29, 2017 | by Kelly McClure

In a recent Texas property division decision, an ex-husband tried to reverse a property distribution order issued as part of a divorce. The couple married in 2012, after the husband had bought a tractor and multiple attachments from a dealership. The husband had signed a five-year note to finance a portion of the purchase price of the equipment. The couple separated in 2014 when the wife sued him for divorce.

They both claimed that they owned certain items of property before marrying and that these should be considered separate property. The husband took issue with the court’s treatment of the tractor he’d bought, as well as the characterization of his bonus, received in May 2014 as community property. He argued that he earned the bonus based on a project that started before his marriage.

At trial, the wife gave the court an inventory of community property and her separate property. She listed the tractor as an asset over which she and her husband had a dispute. She said that the husband gave her the tractor as a gift before they married. Documents showed he’d bought the tractor close to a year before marriage, and he made all of the monthly payments since the sale.

Temporary Spousal Maintenance in Texas

Published on: September 25, 2017 | by Kelly McClure

In a recent Texas spousal maintenance case, a husband appealed from a final divorce decree. He claimed the court made a mistake by awarding the wife $1,500 in spousal maintenance, awarding temporary spousal support of $2,500 each month, ordering him to pay $20,000 in delinquent temporary spousal support payments, failing to issue appropriate factual and legal findings, and failing to award him property he believed was solely his separate property.

In 2014, the parties agreed in court that the husband would pay the wife $2,500 each month before the divorce as temporary alimony. The wife asked for the entry of an order reflecting that. However, the husband filed a proposed rule 11 agreement, claiming an error in calculating his income. He asked for a modification of the agreement.

Another hearing was held related to the temporary orders. There, the husband’s attorney told the court that there had been an error in the first agreement. The wife’s attorney said he understood that the husband’s income was around $5,000. The husband’s attorney claimed he’d withdrawn money from his 401K, and the monthly income of about $1,400 wouldn’t be available.