INTERESTING CASES: March 1, 2017

INTERESTING CASES: March 1, 2017

Sallee S. Smyth

1.In re J.M., 2017 Tex. App. LEXIS 1221 (Tex. App. – Dallas February 13, 2017) (mem. opinion) (Cause No. 05-15-001161-CV)

H and W divorced in 2009. Under the terms of their agreed decree, neither party was permitted to file a suit to modify terms of conservatorship, possession or child support for a period of three years absent evidence that there was an immediate and present danger to the child. W filed a suit to modify in 2010 seeking modification of all such child related terms. In a separate suit filed in civil court H asserted claims against W for breach of contract, defamation, invasion on seclusion, threat of bodily injury and intentional infliction of emotional distress. The breach of contract claim alleged that he had fully performed under the contract and that W had breached it by filing suit to modify within three years and no evidence supported circumstances justifying the filing exception. In his defamation suit he alleged that W was guilty of defamation per se for accusing him of sexual abuse of his niece, which was investigated by CPS and ruled out. The civil claims were consolidated with the SAPCR and all were tried to the court. The oldest child has attained majority by the time of trial. The trial court modified the decree relating to the younger child in part, denied relief in part and ordered each to pay their own fees. The court also denied H’s breach of contract and defamation claims. H appealed. The COA found that various admitted evidence established circumstances which presented possible immediate danger to the children at or near the time W filed her modification suit. This included admissions of physical violence occurring between H and his new spouse, some of which had been witnessed by the children. There was also evidence contained in a psychological evaluation that W had made an allegation to CPS regarding possible sexual abuse by H against his niece and further the older child had expressed concerns that H might also be abusing her younger sister because he made her sit on his lap and sleep with him in his bedroom. The COA determined that there was more than a scintilla of evidence which could support a finding that the filing exception within three years had been met and therefore no breach of contract occurred. Regarding the defamation claim, evidence from the CPS worker suggested that W was genuinely concerned for H’s niece in making the report and that under the Family Code, W was obligated to make the report under those circumstances. Further, H claimed defamation per se because the W’s allegations related to alleged sexual misconduct. However the COA notes that with regard to a private figure (such as H in this case) he had to establish that W knew the allegations were false when she made them and he offered no such evidence. Judgment affirmed.

2.In re W.T.H., 2017 Tex. App. LEXIS 1245(Tex. App. – San Antonio February 15, 2017) (mem. opinion) (Cause No. 04-16-12-00055-CV)

Two siblings, KJF and WTH, resided in Wisconsin with their mother (M) and WTH’s father (F) who were not married. At the time of WTH’s birth, M was married to another man however F admitted he was WTH’s father and the parties entered into a Stipulation and Judgment of Paternity which was signed by a Wisconsin court in 2013 and provided that custody of WTH was placed jointly with M and F. F died in January 2015 and M moved with both children to Karnes County, TX where they resided with Kevin, M’s father (MGF). M died in May. WTH went to live briefly with his maternal aunt in Wilson County, TX. KJF, who had special needs and required continuous care, remained with MGF. In June 2015 MGF filed a suit in Karnes County asking for grandparent access and/or custody of both children. There is no record of who received notice of this proceeding and on July 7, 2015 the TX trial court signed an order appointing MGF sole managing conservator of both children. In late June, before the TX order was signed, paternal grandmother (PGM) filed suit in Wisconsin for permanent guardianship of WTF. Both MGF and the maternal aunt filed answers in that proceeding and notified the Wisconsin court of the TX order. In September 2015 PGM filed a bill of review action in the TX trial court which was granted in October and thereafter the trial court severed the SAPCR action relating to KFJ (the older child) from the SAPCR regarding WTH. PGM then filed a plea to the jurisdiction asserting that the TX court has no subject matter jurisdiction over the custody proceeding regarding WTH because Wisconsin retained continuing jurisdiction by virtue of the 2013 agreed paternity and custody order and because WTH had not resided in TX for the requisite 6 month period at the time PGF filed his suit in June 2015. The trial court granted PGM’s plea and dismissed MGF’s suit for lack of jurisdiction. MGF appealed but did not present a reporters record. MGF argued that the 2013 Paternity Judgment was not a custody determination however the COA disagreed based on one sentence in the order which provided that “legal custody of the child was granted to the parties’ jointly.” As such, Wisconsin retained continuing jurisdiction until such time as it was determined that the child and the parents no longer resided in Wisconsin, a determination which the Wisconsin UCCJEA allows to be made by a court of another state but a determination which neither the TX or Wisconsin court had made at the time the July TX order was signed. Further the COA concluded that TX was not the child’s home state at the time MGF filed suit in June as the child had been in TX less than 5 months. Finally, MGF argued that Wisconsin was an inconvenient forum and that TX could retain jurisdiction and it was in the children’s best interest to keep them together and decide custody in TX. The COA found that the UCCJEA inconvenient forum statute could not be used by a TX court to argue that Wisconsin was an inappropriate jurisdiction because the TX statute only applies when TX otherwise has jurisdiction (which is did not here) and is trying to decide whether or not to decline exercise of that jurisdiction. Further the COA notes that although the MGF’s desire to keep the children together was commendable, best interest is not a factor to be considered when determining whether a court has subject matter jurisdiction under the UCCJEA. Judgment dismissing MGF’s suit regarding custody of WTH affirmed.

3.Weidenfeld v. Markgraf,2017 Tex. App. LEXIS 1426 (Tex. App. – San Antonio February 22, 2017)(mem. opinion) (Cause No. 04-16-00172-CV)

H and W were divorced by final decree in 2012. In that Decree the court ordered the payment of spousal maintenance upon a finding that W was unable to meet her minimum reasonable needs based upon an incapacitating physical disability. The Decree obligated H to pay maintenance of $400.00 per month to be reviewed in 3 years, or to terminate upon death of either party, remarriage of W or further court order. Three years after the decree as signed W brought a proceeding requesting continuation of spousal maintenance. H filed a motion to dismiss claiming W should have filed suit within 3 years of rendition (not entry) but the trial court denied this request. (H asserted a cross-point on appeal but the COA found that he was required to file an independent notice of appeal on this point and because he did not the error was waived.) After receiving testimony from both H and W, the trial court also denied W’s request for continuation of maintenance. W appealed. W asserted that because she continued to receive Social Security disability benefits the trial court had no jurisdiction to contradict findings by the federal government that she was disabled. The COA found that under the TX maintenance statutes, the trial court retains discretion to continue maintenance even when a spouse establishes that they are permanently disabled. As such, the receipt of SS disability does not establish an absolute right to maintenance. W further argued that the court disregarded her testimony that she was unable to work. In order to justify continuation of maintenance a party must establish their continued disability and must also prove that the disability prevents them from earning income to meet their reasonable needs. H testified that he had information W had worked some odd jobs and received cash income. W admitted that she did some pet sitting for her roommate and done some work for her boyfriend. W offered no evidence that she has tried to obtain any other employment but merely testified that based on her extensive medical conditions she could not imagine that anyone would give her a job or put up with her excuses for missing work because she was having a bad day. Under the circumstances the COA determined that the trial court had the discretion to determine that W failed to meet her burden for the continuation of spousal maintenance and that there was no abuse of discretion denying W’s request. Judgment affirmed.

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