Case Law Update from Jon R. Boyd
If you have read my page about “The Other Law”, you know by now that being aware of cases decided by the Texas appellate courts is critical to a correct understanding of legal issues. From time to time, I will update this page and give you a few of the more important recent rulings on various topics. These are some of the recent cases in Family Law taken from the Newsletter of the Family Law Section of the State Bar of Texas, of which I am a member, and other cases I have found and successfully used in my own cases:
The texas supreme court held that texas retains custody jurisdiction, even after the custodial parent has moved them out of the state for more than six months if the non-custodial parent still resides in texas and has a significant connection with the children or substantial evidence exists in this state to help determine custody. In this case, the children had been residing outside texas for over four years, yet texas still retained jurisdiction.04-7-9. In Re Forlenza, 140 S.W. 3d 373 (Tex. 2004)
The texas supreme court resolved a split in the various courts of appeal re: when and under what circumstances child support may be based on an obligor’s earning potential if the obligor is voluntarily underemployed. Some appellate courts had held proof of actual intent to evade cs was required, and others had ruled otherwise. The supreme court held that the obligee is not required to prove obligor’s intent to evade child support to show voluntary underemployment. The court further held, however, that if an obligor ceases working as much overtime to spend more time with the children, that is an acceptable reason for not working as much and does not equate to voluntary underemployment.11-4-15. Iliff v Iliff, 339 S.W.3d 74 (Tex. 2011)
Although father had already made a lump sum child support payment for his child pursuant to the parties agreement when the parties later conceded that there had been a material and substantial change in circumstances the trial court had the authority to modify the parties prior agreement.14-2-25. Luckman v. Zamora, 01-13-00001-CV, 2014 WL 554630 (Tex. App.—Houston [1st Dist.] 2014, no pet. h.) (mem. op.) (2/11/14)
Material change in circumstances may include (1) remarriage by a party, (2) poisoning of the child’s mind by a party, (3) change in the home surroundings, (4) mistreatment of the child by a parent or step-parent, and (5) a parent’s becoming an improper person to exercise custody.14-2-24. In Re S.N.Z., ___ S.W.3d ___, 2014 WL 295257 (Tex. App.—Dallas 2014, no pet. h.) (1/28/14)
Evidence supports injunction prohibiting parties from allowing child in presence of an unrelated person of opposite sex. Admission of expert evidence not determined by administrative code.14-2-23. In Re S.A.H., ___ S.W.3d ___, 2014 WL 294547 (Tex. App.—Houston [14th Dist.] 2014, no pet. h.) (1/28/14)
Texas family code does not authorize an award of attorney’s fees as additional child support in non-enforcement modification suits.14-2-19. Tucker v. Thomas, ___ S.W.3d ___, 2013 WL 6509931 (Tex. 2013)(12/13/13)
The income of a parent’s spouse is not to be considered when calculating a parent’s child support obligation.14-2-17. In Re Bromberg , 03-13-00778-CV, 2014 WL 258998 (Tex. App.—Austin 2014, orig. proceeding) (mem. op.) (1/14/14)
A texas court may enforce an msa modifying a spousal support order issued by a court in another; contractual alimony is not subject to tfc chapter 8 termination provisions.14-2-11. In Re L.T.H., __S.W.3d__, 2013 WL 6665084 (Tex. App.—Dallas 2013, no. pet. h.) (12/18/13)
A company’s goodwill that exists separate and apart from a professional’s personal skills, ability, and reputation is divisible upon divorce.14-2-06. Hill v. Hill, 02-12-00332-CV, 2014 WL 92795 (Tex. App.—Fort Worth 2014, no pet. h.) (mem. op.) (1/9/14)
Time spent by a texas domiciliary outside texas while in the service of the armed forces is considered residence in texas.14-2-05. Vatcher v. Vatcher, 04-12-00821-CV, 2014 WL 60917 (Tex. App.—San Antonio 2014, no pet. h.) (mem. op.) (1/8/14)
Texas law now recognizes that an individual who has had a “sex change” is eligible to marry a person of the opposite sex.14-2-03. In Re Estate of Araguz, ___ S.W.3d ___, 2014 WL 576085 (Tex. App.—Corpus Christi 2014, no pet. h.) (2/13/14)
Trial court did not err in finding no common-law marriage existed because wife failed to provide direct evidence that the parties agreed to be married and husband controverted wife’s circumstantial evidence pertaining to an agreement.14-2-01. Burden v. Burden, __SW3d__, 06-13-00024-CV, 2013 WL 6858125 (Tex. App.—Texarkana, no. pet. h.) (12/31/13)
Facts: Husband and Wife formally married in 1998 and divorced in 2002. Several years after the divorce, Husband permitted Wife to move into his home because Wife needed a place to live. Afterward, Wife refused the Husband’s request that she leave the home. Eventually, Husband attempted to evict Wife. Wife resisted, claiming the parties’ had entered into a common-law marriage that vested her with an ownership interest in the house. Following a bench trial, the trial court found that no common-law marriage existed. Wife appealed.
Opinion: A common-law marriage exists in Texas if the parties (1) agreed to be married, (2) lived together in Texas as husband and wife after the agreement, and (3) represented to others that they were married. An agreement to be married cannot be inferred from the mere evidence of cohabitation and representations of marriage to others, but such evidence may be circumstantial evidence of an agreement to be married. Here, Wife did not testify that she and Husband agreed to be married after their divorce, but only that she considered them to be in a marriage relationship and that Husband told her there were no changes in their relationship after they divorced. Husband specifically denied ever agreeing to be married to Wife after the 2002 divorce. Because Husband controverted Wife’s circumstantial evidence pertaining to an agreement to be married and there was no direct evidence that the parties actually agreed to be married, the trial court did not err by finding no common-law marriage existed.
Henderson rule for 16 yr old children being allowed to name their own visitation is overturned by dallas court of appeals.
Memorandum Opinion in Dallas Court of Appeals, Case No. 05-10-01472-CV; 2012 Westlaw 3133785.