Recent Posts in Family Law Category

A common-law or informal marriage can be established by showing the parties 
        
        (1) entered into an agreement to become husband and wife; 
        (2) cohabitated as husband and wife; and 
        (3) held each other out publicly as husband and wife.

TEX. FAM. CODE ANN. § 2.401(a)(2) (Vernon 1998).

However, there is a crucial prerequisite: both parties must possess the legal capacity to marry. Villegas v. Griffin Indus., 975 S.W.2d 745, 749-50 (Tex. App.--Corpus Christi 1998, pet. denied).

In order to constitute a valid informal marriage, it must be established that the parties:

        (1) entered into an expressed or implied agreement to become husband and wife, 
        (2) that such agreement was followed by cohabitation as man and wife, and 
        (3) that they held each other out professedly and publicly as husband and wife.

TEX. FAM. CODE ANN. § 1.91 (a)(2) (Vernon 1993).

There is, of course, one additional fundamental rule, that in order to establish a valid marriage, the parties must possess the legal capacity to marry and there must not be any legal impediment prohibiting the marriage contract. Franklin v. Smalldridge, 616 S.W.2d 655, 657 (Tex. Civ. App.--Corpus Christi 1981, no writ); Howard v. Howard, 459 S.W.2d 901, 904 (Tex. App.--Houston [1st Dist.] 1970, no writ); Esparza v. Esparza, 382 S.W.2d 162, 166 (Tex. Civ. App.--Corpus Christi 1964, no writ). Villegas v. Griffin Indus., 975 S.W.2d 745, 749-750 (Tex. App. Corpus Christi 1998)

On occasion a trial court may abuse its discretion with respect to rulings on family law cases so as to warrant an immediate review by a higher court. This process is called a writ of mandamus against the trial court judge making the incorrect ruling or abuse of discretion.

To be entitled to the extraordinary relief of a writ of mandamus, the relator must show that the trial court clearly abused its discretion and he has no adequate remedy by appeal. In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). In determining whether the trial court abused its discretion in the resolution of factual matters, the court of appeals may not substitute its judgment for that of the trial court and may not disturb the trial court's decision unless it is shown to be arbitrary and unreasonable. In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (orig. proceeding) (per curiam). Therefore, the relator must establish that the trial court could have reached only one decision. Walker, 827 S.W.2d at 840. An abuse of discretion does not exist if the trial court bases its decision on conflicting evidence and some evidence supports the trial court's decision. IKB Indus. (Nigeria) Ltd. v. Pro‑Line Corp., 938 S.W.2d 440, 445 (Tex. 1997); Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993).

Appellate courts do not generally overrule trial court rulings, especially when conflicting evidence are submitted by opposing parties. Such was the case in the recent ruling by the 14th Court of Appeals last February in the case of In Re John W. Small who asked the higher court to compel the presiding judge of County Court at Law No. 1 of Galveston County, to set aside her October 31, 2008 order finding relator in contempt for failing to pay court-ordered temporary spousal support to real party in interest, Murriah S. McMaster, and to to reverse her November 1, 2005 order awarding temporary spousal support to McMaster. Because the trial court did not abuse its discretion, writ of mandamus was denied.

Many times in family law cases, the question or issue arises as to the liability of a party to comply with terms of custody, visitation, and or child support. Civil contempt in Texas is the process by which a court exerts its judicial authority to compel obedience to some order of the court. See, Ex parte Padron, 565 S.W.2d at 924 (citing Ex parte Werblud, 536 S.W.2d 542, 545 (Tex. 1976) (orig. proceeding)).

Texas case law dictates that command language is essential to create an order enforceable by contempt. See Ex parte Gorena, 595 S.W.2d 841, 845 (Tex. 1979) (orig. proceeding); Ex parte Padron, 565 S.W.2d at 924; see also Ex parte Duncan, 62 S.W. 758, 760 (Tex. Crim. App. 1901) (orig. proceeding) (stating the order alleged to have been disobeyed “must be in the form of a command”).

So often, parties recite terms in final orders such as a Final Decree of Divorce. However, merely incorporating an agreement into the recitals of a divorce decree, without a mandate from the court, is not sufficient. See, e.g., In re Dupree, 118 S.W.3d at 916 (holding that a party cannot be held in contempt for failure to pay alimony when his agreement to pay was incorporated in the court’s divorce decree without command language); Ex parte Harris, 649 S.W.2d 389, 391 (Tex. App.—Corpus Christi 1983, orig. proceeding) (holding that an agreement to pay child support that is incorporated in the parties’ divorce decree is not enforceable by contempt because the decree did not order the parties to comply with the agreement).

In other words, there must be something more than just an agreement term in the final decree to be enforceable as a contempt charge. True, terms under an agreement such as a final divorce decree is enforceable and valid just as with any other valid written contract. But to enforce a terms as contempt for failure to comply there must be a specific command or "order" from the court to comply, otherwise the term cannot be enforceable under contempt if a court never ordered it in the first place. A contempt arises from an order from a court, thus the term "contempt of court".

In Ex parte Gorena, the court upheld a contempt order for failure to make agreed payments incorporated in a divorce decree. See Ex Parte Gorena, 595 S.W.2d at 843. There, the decree ordered that the payments be made. Id. ( “‘It is decreed that Respondent (Mr. Gorena) shall pay to Petitioner (Ms. Barber) . . . .’”). The key underlying factor is that whether a court ordered the term as set forth in the decree or final order.

Family law parties should request this key ingredient in any final order or final decree of divorce, or order for modification, custody, child support and or order for visitation. This ensures that the sought after terms can be legally enforced under contempt for non-compliance or failure to follow the court's order.

A common-law or informal marriage can be established by showing the parties

(1) entered into an agreement to become husband and wife;

(2) cohabitated as husband and wife; and

(3) held each other out publicly as husband and wife.

TEX. FAM. CODE ANN. § 2.401(a)(2) (Vernon 1998).

However, there is a crucial prerequisite: both parties must possess the legal capacity to marry. Villegas v. Griffin Indus., 975 S.W.2d 745, 749-50 (Tex. App.--Corpus Christi 1998, pet. denied).

In order to constitute a valid informal marriage, it must be established that the parties:

(1) entered into an expressed or implied agreement to become husband and wife,

(2) that such agreement was followed by cohabitation as man and wife, and

(3) that they held each other out professedly and publicly as husband and wife.

TEX. FAM. CODE ANN. § 1.91 (a)(2) (Vernon 1993).

There is, of course, one additional fundamental rule, that in order to establish a valid marriage, the parties must possess the legal capacity to marry and there must not be any legal impediment prohibiting the marriage contract. Franklin v. Smalldridge, 616 S.W.2d 655, 657 (Tex. Civ. App.--Corpus Christi 1981, no writ); Howard v. Howard, 459 S.W.2d 901, 904 (Tex. App.--Houston [1st Dist.] 1970, no writ); Esparza v. Esparza, 382 S.W.2d 162, 166 (Tex. Civ. App.--Corpus Christi 1964, no writ). Villegas v. Griffin Indus., 975 S.W.2d 745, 749-750 (Tex. App. Corpus Christi 1998)

In international family law cases, parents frequently run into jurisdictional issues as to which court, i.e., Texas or an international court has jurisdiction to hear a custody case. Whether in a divorce, modification or enforcement action, in Texas the court hearing the custody case must have subject matter jurisdiction.

Section 152.201 of the Texas Family Code, - INITIAL CHILD CUSTODY JURISDICTION.

(a) Except as otherwise provided in Section 152.204, a court of this state has jurisdiction to make an initial child custody determination only if:

(1) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

(2) a court of another state does not have jurisdiction under Subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 152.207 or 152.208, and:

(A) the child and the child's parents, or the child and at least one parent or a person acting

as a parent, have a significant connection with this state other than mere physical presence;

and

(B) substantial evidence is available in this state concerning the child's care, protection,

training, and personal relationships;

(3) all courts having jurisdiction under Subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 152.207 or 152.208; or

(4) no court of any other state would have jurisdiction under the criteria specified in

Subdivision (1), (2), or (3).

(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

In the case of ANA MARIA TARQUIS ALFONSO v. MICHAEL SKADDEN, the courts delt with the issue of whether the Texas court had subject matter jurisdiction in a divorce decree that was sought to be enforced four years after an alleged default.

The fact of the case are as follows:

Michael Skadden and Ana Maria Tarquis Alfonso were married in Houston in 1991. In March 1999, Tarquis filed for divorce in Spain, and one month later Skadden (a Houston lawyer affiliated with a Madrid firm) filed for divorce in Harris County, Texas. Each of the parties claimed they were not served in the other’s suit, although Skadden appeared by attorney in Spain and Tarquis was served by publication. When Tarquis failed to appear in Texas, the trial court granted default, divided the property, named both parents managing conservators of their only child, entered a standard possession order, and ordered Skadden to pay child support. By contrast, the Spanish court granted sole custody to Tarquis, denied visitation to Skadden on the basis he had no relationship with the child (Skadden admits he has not seen their child since 1998), and also ordered Skadden to pay child support.

Four years and three months after the Texas decree was signed, Skadden sought to enforce it. Tarquis answered and argued the 1999 judgment was void due to lack of personal jurisdiction because she had not been served, and lack of subject-matter jurisdiction because Texas was not the child’s home state. The district judge — who had heard the 1999 case as an associate judge and recommended the divorce decree — reviewed the 1999 file, heard evidence, and then denied enforcement, finding the absence of an appointed ad litem or statement of evidence rendered service by publication improper. See Tex. R. Civ. P. 244.

While Skadden argued he never had proper notice or a hearing in Spain, his recognition of those proceedings established that Spanish courts had not declined jurisdiction. The trial court refused to enforce the Harris County decree on the basis of lack of subject matter jurisdiction. On appeal, the Texas Supreme Court agreed with the trial court. Subject-matter jurisdiction cannot be waived, and can be raised at any time. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex. 2004). Because the trial court lacked subject-matter jurisdiction to enter the custody provisions in the 1999 divorce decree, it properly refused to enforce that portion of the decree.

In Texas, "Maintenance" means an award in a suit for dissolution of a marriage of periodic payments from the future income of one spouse for the support of the other spouse.

Generally speaking, a spouse in a divorce action or dissolution of marriage can only claim for spousal maintenance or Texas alimony if:

(1) the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Title 4 and the offense occurred:

(A) within two years before the date on which a suit for dissolution of the marriage is filed; or

(B) while the suit is pending; or

(2) the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse's minimum reasonable needs, as limited by Section 8.054, and the spouse seeking maintenance:

(A) is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability;

(B) is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home; or

(C) clearly lacks earning ability in the labor market adequate to provide support for the spouse's minimum reasonable needs, as limited by Section 8.054.

What factors does the court consider in awarding Texas alimony?

(1) the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse's ability to meet the spouse's needs independently;

(2) the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the availability of that education or training, and the feasibility of that education or training;

(3) the duration of the marriage;

(4) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;

(5) the ability of the spouse from whom maintenance is requested to meet that spouse's personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance;

(6) acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;

(7) the comparative financial resources of the spouses, including medical, retirement, insurance, or other benefits, and the separate property of each spouse;

(8) the contribution by one spouse to the education, training, or increased earning power of the other spouse;

(9) the property brought to the marriage by either spouse;

(10) the contribution of a spouse as homemaker;

(11) marital misconduct of the spouse seeking maintenance; and

(12) the efforts of the spouse seeking maintenance to pursue available employment counseling as provided by Chapter 304, Labor Code.

Contact an experience high net worth divorce attorney in Austin, Texas at (512) 338-0529.

http://www.lorenzanalegal.com/

http://www.austindivorcelawattorney.com/