Appeal

Challenging a Texas Acknowledgment of Paternity

Published on: June 20, 2022 | by Kelly McClure

iStock-1033856542-300x200 A person may rescind a Texas acknowledgement of paternity no later than 60 days after its effective date, or earlier if a court proceeding on an issue relating to the child is initiated. Once this time passes, the party may challenge the acknowledgement only on the basis of fraud, duress, or material mistake of fact. Tex. Fam. Code § 160.307. Under current law, a proceeding challenging the acknowledgment may be commenced any time before an order affecting the child is issued. Tex. Fam. Code § 160.308. That statute was amended in 2011, however. Suits challenging acknowledgements signed before September 1, 2011 must be filed within four years of the date the acknowledgement was filed with the state.

In a recent case, a man, identified in the appeals court’s opinion by the pseudonym “William,” attempted to challenge an Acknowledgement of Paternity he had signed and filed in 2005. William petitioned the trial court to set aside the acknowledgment in September 2019 “on the basis of fraud, duress, or material mistake of fact.” He did not, however, make specific allegations. The mother argued the petition was time-barred.

Only William testified at the trial. The mother did not appear or participate. The trial court found the petition was untimely and denied it.

Sibling Standing in Texas Custody Case

Published on: May 26, 2022 | by Kelly McClure

iStock-1271310078-300x200 Under Texas family law, certain close relatives of a child may seek managing conservatorship if they can sufficiently show the child’s current circumstances would significantly impair the child physically or emotionally. Tex. Fam. Code Ann. § 102.004(a)(1). A sister recently sought custody of her siblings, asserting standing under § 102.004(a)(1).

Children’s Sister Seeks Custody After Mother’s Death

According to the appeals court’s opinion, the adult sister filed suit seeking to be named the sole managing conservator of her minor siblings a few weeks after her mother’s death. She claimed she had standing to bring the suit because she was their sister and had “a close and substantial relationship with the children.”

The father asked the court to dismiss the case for lack of standing. The sister amended her suit to claim standing pursuant to Tex. Fam. Code § 102.004(a)(1). The sister attached to her brief a copy of her mother’s will, which named the sister and her husband as the children’s guardians. The father attached a letter to his own brief which showed the Texas Department of Family and Protective Services (“Department”) had ruled out allegations of abuse against him.

Life Insurance and Texas Divorce

Published on: May 8, 2022 | by Kelly McClure

2018_10_agreement-300x165 People commonly obtain life-insurance policies and name their spouse as the beneficiary. They do not always remember to update the beneficiary designation when they get divorced. Under Texas law, designation of a spouse as beneficiary before a divorce will only remain effective after the divorce in certain circumstances. Generally, either the court or the insured must designate the former spouse as beneficiary, or the former spouse must be designated to receive the proceeds in trust for a child or dependent’s benefit. In a recent case, an ex-wife challenged a court awarding a life-insurance policy on the ex-husband to the ex-husband many years after the original divorce.

Insurance Policy Not Divided in Divorce

During the marriage, the parties obtained a life insurance policy on the husband with the wife named as beneficiary. The policy was not addressed in the divorce decree in 2009. The husband subsequently filed a bill of review, and the parties agreed to be co-owners of the policy. They agreed the wife would receive half of the proceeds and the rest would go into a trust for their children. The court ordered the parties to split the policy into two, but the insurance company was unable to do so.

The husband then filed for declaratory judgment, seeking to be named the sole owner of the policy. He also asked for a temporary restraining order against both the wife and the insurer. Alternatively, he sought to divide undivided property. The wife’s counter-petition also sought a declaratory judgment that the policy was her separate property and to divide undivided assets.

Texas Final Divorce Decree Constituted Consent Judgment after Revocation of MSA

Published on: April 3, 2022 | by Kelly McClure

“A scroll of a Divorce Decree, tied with a black ribbon on a mahogany desk, with a dead white rose buttonhole from the Wedding Day, with a black pen. Copy space..”

A Texas Mediated Settlement Agreement (“MSA”) must generally include language that it is not subject to revocation, be signed by each party, and be signed by the party’s attorney who is present at the time of execution. Tex. Fam. Code § 6.602(b). If the MSA meets these requirements, it is binding and the court must render a divorce decree adopting it. The judgment must be compliant with the agreement and must not substantively alter it. The parties may revise or repudiate the agreement before the divorce is rendered, unless the agreement is otherwise binding under another law. Tex. Fam. Code § 7.006.

In a recent case, a former wife appealed a divorce decree, arguing the court erred in rendering judgment on a settlement after she revoked her consent. The parties had reached an agreement at mediation and signed an MSA, but only the husband’s attorney’s signature was on the document.

Wife Revokes Consent to MSA

The wife filed a revocation of consent and an objection to the entry of a final divorce decree. She argued the agreement was not valid without her counsel’s signature and was therefore revocable.

Texas Divorce Abated Upon Husband’s Death

Published on: March 20, 2022 | by Kelly McClure

iStock-1270267953-300x200 When a party in a Texas civil lawsuit dies, the case may proceed if the cause of action survives the death of the party. Tex.R.Civ.P. 150. Generally, when the defendant in Texas civil lawsuit dies, the plaintiff may petition for a “scire facias” to require the administrator, executor, or heir to defend the lawsuit. Tex. R. Civ. P. 152. Pursuant to case law, however, Texas divorce cases are not subject to this rule because they are personal actions that do not survive the death of a party if judgment has not yet been rendered. Generally, heirs do not take over a divorce case prior to final judgment. Instead the divorce case abates when a party dies. This means the court will dismiss the case.

Husband Dies During Divorce Suit

A wife recently challenged a trial court’s determination that her divorce petition abated upon her husband’s death. The parties had married for about seven years when they divorced in 2000. In 2018, they got married again. The parties did not have any children together, but the husband had children from a previous marriage. The wife petitioned for divorce in May of 2020. The husband filed an answer, but passed away the following January. The wife sought to have the husband’s children defend the divorce on the husband’s behalf as his heirs.

The trial court found it did not have subject-matter jurisdiction to proceed, because a divorce petition, as a personal action, abates upon the death of either party. A judgment rendered by a court without subject-matter jurisdiction is void.

Death of a Party During a Texas Divorce Case

Published on: January 25, 2022 | by Francesca Blackard

“A scroll of a Divorce Decree, tied with a black ribbon on a mahogany desk, with a dead white rose buttonhole from the Wedding Day, with a black pen. Copy space..”

A Texas marriage can end through either death or a court’s decree. If a party dies before judgment is rendered in a divorce case, the divorce case abates. In a recent case, a husband challenged a divorce when the decree was signed after the death of the wife.

The wife filed for divorce in October 2018, alleging insupportability, abandonment, and cruel treatment. In his counterpetition, the husband alleged insupportability, cruel treatment, and adultery.

Final Trial

At the trial on September 17, 2019, the court informed the attorneys that it needed time to make its rulings regarding the property. The court said it would email the parties with the decision. The proceedings resumed after a break on the record and the court pronounced the parties divorced and said the entry of the final decree would be ministerial.

Texas Appeals Court Denies New Trial and Affirms Disproportionate Division in Default Divorce

Published on: January 5, 2022 | by Kelly McClure

iStock-545456068-300x184 A court may proceed with a Texas divorce case even if a party does not appear for the trial. In some cases, a party who fails to respond to divorce papers or appear at trial may be entitled to a new trial, but they must meet certain requirements. In a recent case, a husband appealed the denial of a new trial and challenged the property division in a default divorce.

According to the appeals court’s opinion, the parties lived in the husband’s home in Texas after their marriage in Nigeria. The husband bought a home in New Hampshire and moved there in 2017. The wife petitioned for divorce in 2018.

The trial court issued a temporary restraining order prohibiting the husband from interfering with the wife’s health insurance, but he informed the insurer they were divorced while the divorce was pending. The wife’s coverage was cancelled. The wife had to pay $7,500 for medical expenses that the insurer had approved before cancellation. The trial court also prohibited the husband from terminating utility services, but the wife alleged he had them disconnected repeatedly.

Child Interviews and Extracurricular-Activity Expenses in Texas Custody Case

Published on: December 5, 2021 | by Francesca Blackard

5thingsdivorcecourt_header-300x163 Tex. Fam. Code § 153.009(a) requires the court in a Texas custody case to interview a child who is at least 12 years old to determine their wishes regarding custody, “on the application of a party. . . “ A father recently challenged a court’s failure to interview the children in a custody case.

The mother petitioned to increase child support for the parties’ three teenage children and require the father to pay their extracurricular expenses. The father asked to be named the primary managing conservator with the exclusive right to designate the children’s primary residence.

The parties stipulated that $2,760 was the amount the father should pay under the Texas Family Code’s “guidelines.” The trial court ordered the father to pay not only $2,760 monthly, but also half of the children’s extracurricular expenses. The trial court also denied his request to have the exclusive right to designate the children’s primary residence. Continue Reading ›

Texas Appeals Court Enforces Property Distribution Years After Default Divorce

Published on: November 23, 2021 | by Francesca Blackard

images Failing to respond to a Texas divorce petition can result in a default judgment with an unfavorable property division. What happens, though, if the spouse who received the default judgment fails to take action to enforce the property division for several years? A Texas appeals court recently considered a case involving that issue.

Wife Obtains Default Judgment

The husband bought a home before he met the wife. They refinanced it jointly twice during the marriage. The wife subsequently filed for divorce and obtained a default divorce decree in February 2011. The decree listed the home as community property and stated that the wife owned it alone as separate property and that the court divested “any interest, title, and claim the Husband may have to [it].” The court further ordered the husband to sign any deeds necessary to transfer the property to her. There was a remaining principal of $43,399.14 according to the bank statement for the next month.

The husband testified he had not been served and only found out about the divorce case and default divorce later that year. The wife moved out about four months after the divorce. She stated the husband did not want her to live there and tried to “kick [her] out in a very aggressive way. . .” She claimed “[t]here was a lot of violence. . .” The husband testified the wife would yell at him that the house was hers and she was going to take it from him. He then went to court to see the divorce decree and learned it awarded the house to the wife. He said he could not afford an attorney at the time.

Texas Divorce Court Must Compel Arbitration of Dispute Regarding Buyout Provision of Company Agreement

Published on: November 3, 2021 | by Kelly McClure

iStock-1287431987 A family business can complicate the property division in a Texas divorce. A recent case considered whether a husband could compel arbitration to enforce a buyout provision in a company agreement during the divorce proceeding.

The parties formed a limited-liability company together during the marriage, with each owning a 50% membership interest. The husband subsequently petitioned for divorce and the wife filed a counterpetition. Both attached the standing order required by the Travis County District Clerk to protect the parties and preserve their property while the case is pending. The standing order applies to all divorce suits filed in Travis County (and many other counties have similar standing orders, such as Dallas, Collin, Denton, Rockwall, and Tarrant Counties) and prohibits parties from taking certain actions that would harm or reduce the value of the property and from selling or otherwise alienating property belonging to either party.

Wife Seeks to Compel Arbitration on Business Disputes

The husband sought injunctive relief and temporary orders to address disputes relating to operation of the business. The wife asked for those disputes to be resolved according to the company agreement, which required any court proceeding brought by one owner against the other be submitted to mediation first and then to binding arbitration if not resolved. The parties were required to go to mediation and arbitration and the arbitrator entered an award regarding management and control of the business. The wife moved to enforce the arbitration award and the court entered temporary orders in accordance with that award.