May 2, 2014 by Aaron Tress

The Marital Estate: Community Debts

In Texas, “Community Debts” Do Not Exist

Property acquired during marriage is generally community property. However, debts acquired during the marriage are not community debts. In fact, “community debts” do not even exist in Texas. Tedder v. Gardner Aldrich, LLP, 421 S.W.3d 651, 654 (Tex. 2013), reh’g denied (Dec. 13, 2013). According to the Texas Supreme Court, the idea of a “community debt” is problematic because courts can mistakenly use it to assign liability to a spouse who did not incur the debt. Id. In Texas, spouses cannot be jointly liable for a debt under a community property theory. Id.

The Spouse Who Incurs The Debt Is Liable For The Debt

Rodgers v. Rodgers, 07-12-00282-CV (Tex. App.—Amarillo Apr. 17, 2014, no. pet. h.) illustrates this point.

When Kenneth and Mary were married, Kenneth took out a loan to buy tools. While their divorce was pending, however, Mary sold the tools but did not use the money to pay off the debt. In the Final Decree of Divorce, the trial court assigned the debt solely to Kenneth.

The Amarillo Appellate Court affirmed, reasoning that (1) the trial court had not made any findings of fact and conclusions of law, and (2) the trial court made its ruling in light of a myriad of other factors.

February 7, 2014 by Aaron Tress

Video Recording of Child’s Testimony

Entering the Child’s Testimony into Evidence

A lawyer has a couple options when entering a child’s testimony into evidence without calling the child to the witness stand. The lawyer may call the child’s counselor to the witness stand, or the lawyer may videotape the child. To learn more about admitting the testimony of the child’s counselors, see our prior post here.

Videotaping the Child: Requirement of Administering an Oath

The Amarillo Appellate Court recently affirmed a trial court’s decision to strike from evidence a child’s videotaped testimony. Nichol v. Nichol, 07-12-00035-CV, 2014 WL 199652 (Tex. App.—Amarillo Jan. 15, 2014, no. pet. h.). Although the trial court granted the father’s “Motion to Prerecord Testimony of the Child,” the same court ruled the videotape to be “inadmissible hearsay because no oath was administered and no preliminary questions were asked of the child which would indicate he understood his testimony was to be truthful.”

Section 104.003(a) of the Texas Family Code states that “the court may, on the motion of a party to the proceeding, order that the testimony of the child be taken outside the courtroom and be recorded for showing in the courtroom before the court, the finder of fact, and the parties to the proceeding.” Implicit in the word “testimony” is the requirement that an oath be taken. This is seen in Rule 603 of the Texas Rules of Evidence: “before testifying, every witness is required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.”

In the Nichol case, the father’s attorney questioned the child without first administering an oath or having a discussion “about the issue of truthfulness.” Because the child was not made aware of his duty to be truthful, the trial court did not err in excluding the videotaped testimony.

July 24, 2013 by Aaron Tress

Texas Supreme Court Rules for Termination of Parental Rights when Child’s Physical Health or Safety is at Substantial Risk

In the Interest of ECR, No. 12-0744 (Tex. June 14, 2013).

The Texas Supreme Court strikes a new balance between the parent’s fundamental liberty interest in the custody of her child and the child’s need for a safe and healthy environment.

Section 161.001(1)(O) of the Family Code allows a court to terminate a parent’s rights to her child if

the child has been in the State’s custody for at least nine months,
the State proves, by clear and convincing evidence, that the parent failed to comply with a court order that specified what she had to do to get her child back,
the child was removed from the parent under Family Code Chapter 262 for “abuse or neglect of the child.”

The issue in this case is whether “abuse or neglect” includes placing the child’s physical health or safety at substantial risk or whether abuse or neglect only includes actual harm done to the child. The Court ruled that the Texas legislature intended that abuse and negligent include risk of harm. The Court reasoned that a child’s risk of harm can be determined by the parent’s actual harm to other children.

The Facts

M.R. had a prior CPS case involving physical abuse of an older son, who was in the permanent managing conservatorship of foster parents. M.R. also pled guilty to bodily injury to another child, Y.C., a third-degree felony. While spending three days in jail for the incident involving Y.C., M.R. twice attempted suicide. After being released from jail, M.R. slept on the streets and left E.C.R. with her boyfriend at his home, who was not E.C.R.’s father, had an extensive criminal history, and had previously physically abused M.R. M.R. had a history of homelessness, and at the time of the hearing, she had not lived in a home for six months. She had also not been employed at any time since E.C.R. was taken into custody.

The case worker observed that unlike Y.C., E.C.R. had not been physically abused. Because E.C.R.’s paternity was unknown, the court appointed the Department temporary managing conservator and ordered M.R. to comply with the service plan. The court warned M.R. that her failure to do so could result in the termination of her parental rights.

M.R. completed some of the service plan requirements, but she had not satisfied the “big” ones. She failed obtain employment, undergo a psychiatric evaluation, participate in psychotherapy, and she had not lived in a home for six months. M.R. did not dispute her failure to comply with the provisions of the court order that specifically established the actions necessary for E.C.R. to be returned to her and that E.C.R. had been in the Department’s conservatorship for more than nine months. Instead, she argued that termination under subsection O was improper because E.C.R. was removed because of risk of abuse based on her conduct toward his sibling, but not for actual abuse or neglect.

The Law

Subsection O requires proof of abuse or neglect. Abuse and neglect both explicitly include risk: abuse includes not just actual physical injury, but a “genuine threat of substantial harm from physical injury”; neglect includes placing a child in or failing to remove a child from a situation that requires actions or judgment beyond his capabilities and that results in “a substantial risk of immediate harm to the child” or a situation in which the child would be exposed to “a substantial risk of sexual conduct harmful to the child.”

Chapter 262 focuses on risk rather than just actual abuse or neglect: “exposure of the child to loss or injury that jeopardizes the physical health or safety of the child without regard to whether there has been an actual prior injury to the child.” The Court reasoned that although chapter 261’s “abuse” and “neglect” definitions do not govern chapter 262, they inform chapter 262 meanings. See, e.g., Brown v. Darden, 50 S.W.2d 261, 263 (Tex. 1932) (“Whenever a legislature has used a word in a statute in one sense and with one meaning, and subsequently uses the same word in legislating on the same subject-matter, it will be understood as using it in the same sense, unless there be something in the context or the nature of things to indicate that it intended a different meaning thereby.”). So while subsection O requires removal under chapter 262 for abuse or neglect, those words are broad enough to include risk of harm.

July 18, 2013 by Aaron Tress

Amarillo Sets New Texas Precedent Regarding Division of Social Security Benefits in Divorce

In re Marriage of Everse, 07-11-00220-CV (Tex. App.—Amarillo June 18, 2013).

When dividing property in divorce, Texas courts distinguish between separate property and community property. A spouse keeps all of his separate property. Community property, on the other hand, is divided between the divorcing spouses.

In the Everse case, the Amarillo Appellate Court made two significant additions to the division of Social Security benefits in divorce.

First, invested Social Security benefits are a person’s separate property as long as the benefits are traceable. The Court sites an Idaho case with similar facts. Bowlden v. Bowlden, 794 P.2d 1145 (Idaho Ct. App. 1989), remanded, 794 P.2d 1140 (1990). “There, the husband began receiving monthly Social Security benefits during the marriage. The marital community had sufficient other income to support the couple so the benefits the husband received from Social Security were deposited in checking and savings accounts. At the time the parties were divorced, the husband claimed the money he received from Social Security was his separate property, while the wife maintained it was community in nature.” The Amarillo court adopted the reasoning of the Idaho court and other courts: the Supremacy Clause of the US Constitution causes federal statutes to supersede state family law with regard to Social Security benefits.

Second, foreign Social Security benefits are community property. The parties married in 1993, and Mr. Everse began receiving Dutch Social Security benefits in 1996. The Dutch Social Security benefits were a product of Mr. Everse’s work in the Netherlands from 1948 through 1960. The Court ruled that without something more than merely evidence that his foreign income was Dutch Social Security, the foreign income was community property.

Where does the Appellate Court leave us? The Appellate Court does not tell us what would be sufficient for foreign Social Security to be a person’s separate property.

June 21, 2013 by Aaron Tress

Grandparents’ Visitation Rights in Texas

Bill McNamara presented the following paper on April 22, 2009, before the South Plains Family Law Association.

“So & So Won’t Let Me See My Grandchild”

“Can You Help Me?”

I. Introduction

Under limited circumstances, there are ways we can still help Grandparents. This paper is an attempt to explain how we can still represent Grandparents in access cases in light of Troxel. If you are representing the parent, Troxel is still your sword.

This article is divided by questions you should ask and the facts Grandma gives you.

II. Grandma Calls and wants Access

Can you help? Answer: Maybe, Let me hear more!

A. First, and foremost: Determine if Grandma meets the “old” requirements. What I mean by this is whether one of the requirements under subparagraph (3) can be met:

the Grandparent’s child has been in Jail for at least the past 3 months
the Grandparent’s child has been found incompetent
the Grandparent’s child has died
the Grandparent’s child does not have court ordered access

Then you want to make sure that both parents have not had their rights terminated! See §153.434(1)(B). If both parents’ rights have been terminated, your Grandma is probably out of luck.

However, if both parents have had their rights terminated by CPS and Grandma has NOT been given access then you need to look at §102.003(a)(12) and §102.004! In a CPS case only, you have 90 days after the termination to still try and get Grandma in the door.

B. Second, ask Grandma questions about whether the parent is a fit parent or not. And ask Grandma questions to see if she would have standing under §102.003.

Sounds like a “Fit” parent and you don’t have any facts that could give you Standing under §102.003:

Result: Grandma still falls under §153.433 and she has to overcome the biggest hurdle.

Burden: Can you prove by a preponderance of the evidence that denial of possession of or access to the child (by Grandma) would significantly impair the child’s physical health or emotional well being?

Law: You better have an expert! In July of 2008 the Ft. Worth court of appeals stated, “The mere opinion of the grandparents themselves and an interested, nonexpert witness that the grandparents should be granted access does not overcome the statutory presumption.” In re J.P.C., 261 S.W.3d 334, 340 (Tex. App.—Fort Worth 2008, no pet.).

Facts: The grandchild probably hasn’t seen an expert before Grandma calls. If Grandma has had close, loving, and/or a significant relationship with her grandkids, then I say file the access suit!

My Spin: Petition the court for temporary orders and ask the Court to appoint an expert to address the issue, but DON’T ask for “Temporary Access.” Also, you may want to ask the Court to confer with the child.

None of the cases that I have included have addressed the issue whether the appointment of an expert in a Grandparent access case offends the rationale in Troxel. You could rely on Derzapf where the trial court appointed an expert during temporary orders to advise the court whether the grandparents should have access. In re Derzapf, 219 S.W.3d 327, 328 (Tex. 2007). However, in Derzapf the Supreme Court of Texas held that only biological or adoptive grandparents, not step-grandparents, had standing to seek access.

Note: If you represent the parents you should argue that appointing an expert and subjecting your client and the kids to counseling offends Troxel.

C. Now assume these are the facts:

Parent is a fit parent, but Grandma HAS standing under §102.003.

PLEAD FOR JMC & ACCESS

Now you need to find out if there is a prior court order. If so, file a modification and argue that the parental presumption and Troxel does not apply! See In the Interest of M.P.B., 257 S.W.3d 804 (Tex. App.—Dallas 2008, no pet.); In Re C.A.M.M., 243 S.W.3d 211 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). If you are representing the parent, however, rely on In re Kelso, 266 S.W.3d 586 (Tex. App.—Fort Worth 2008, no pet.).

If Grandma has standing under §102.003 she can file an original suit or a modification. If you are filing an original suit, then the parental presumption applies but you could still argue that Grandma has standing to be named a joint managing conservator. If Grandma has a “legitimate” threat of being named a JMC, then Grandma has more leverage to negotiate an access settlement.

Grandma would most likely have standing if the grandchild lived in her house for at least six months ending not more than 90 days preceding your filing. The six months doesn’t have to be continuous and uninterrupted. It just has to be the child’s principal residence.

D. Now assume the Parent is Unfit:

The child’s present circumstances would significantly impair the child’s physical health or emotional development

Your Grandma has standing under §102.004 to ask for custody, and in the alternative Grandma can plead for access. Again, this may lead the parties to negotiate a settlement regarding access.

III. Ancillary Issues

A. I was Home Towned!

I won’t name names, but I was in a county other than Lubbock, and I was representing the mother in a Grandparent access case.

At the first hearing I successfully argued that Grandma didn’t have standing under the statue. Then the father, who was in a court ordered rehab facility, filed an enforcement against my client (with the same attorney). He couldn’t leave the facility and couldn’t visit his child at the facility.

I thought no problem, right? Wrong. The judge ordered that the father could designate anyone he wanted to exercise his periods of possession, i.e. Grandma. I wasn’t prepared for this kind of judicial discretion.

If this happens to you, I think you should rely on In re Marriage of Campbell, 06-08-00088-CV, 2009 WL 483602 (Tex. App.—Texarkana Feb. 27, 2009, no pet.).

B. Can You Get out of a Pre-Troxel Grandparent Access Order?

Maybe – See In re C.P.J. The Texarkana court of appeals seems to say you may be able to get out of the agreement in light of Troxel.

No – See In re C.P.J., 129 S.W.3d 573 (Tex. App.—Dallas 2003, pet. denied). The Dallas court of appeals says you can’t get out of it even after Troxel.

No – See Spencer v. Vaughn, 03-05-00077-CV, 2008 WL 615443 (Tex. App.—Austin Mar. 6, 2008, pet. denied). The Austin court of appeals affirmed jury decision to modify grandparent access.

C. Specific Days & Times

Lastly, an Amarillo case says if Grandma does get access, then the trial court should give Grandma specific times and days in which to exercise her access. See In re Webster, 982 S.W.2d 526 (Tex. App.—Amarillo 1998, no pet.). Note: This opinion was issued before Troxel.

D. Step Parent Adoption doesn’t keep Grandma out

See Raines v. Sugg, 930 S.W.2d 912 (Tex. App.—Fort Worth 1996, no writ).

IV. Still Can’t Get There?

Sibling Access §153.551

Sibling has to be at least 18 §102.0045

Military Deployment §153.3161

Why do Grandparents with children in the military get more rights than other Grandparents? Equal protection argument?

V. Defending the Parent?

Rely on the following cases to defend your client’s constitutional rights!

In re Derzapf, 219 S.W.3d 327 (Tex. 2007)

In re Mays-Hooper, 189 S.W.3d 777 (Tex. 2006)

In re Chambless, 257 S.W.3d 698 (Tex. 2008)

In re J.P.C., 261 S.W.3d 334 (Tex. App.—Fort Worth 2008, no pet.)

In re D.R.D., 05-06-00666-CV, 2007 WL 2258455 (Tex. App.—Dallas Aug. 8, 2007, no pet.)

In re J.R.D., 05-06-01554-CV, 2007 WL 4415879 (Tex. App.—Dallas Dec. 19, 2007, no pet.)

In re Aubin, 29 S.W.3d 199 (Tex. App.—Beaumont 2000, no pet.)