Blake Griffin’s child support and reason #1,522 not to live in California

Reports surfaced today that pro-NBA player Blake Griffin has reached a settlement deal with his ex-girlfriend Brynn Cameron to pay child support of $258,000 PER MONTH for their two children. (See reports here from TotalProSports and here from TMZ.) The lawsuit, pending in California, alleges that Griffin ousted Cameron and the kids from his mansion in the California hills and made them homeless and penniless so he could carry on with reality star Kendall Jenner. Cameron, however, is savvy — she has another child with a pro-football player. She sued under California law for breach of an oral relationship contract, palimony and child support based upon her “station in life”. You see, California considers the “station in life” as a factor in setting the amount of money to be paid in a cohabitating break up. So, wealthy men should beware if you live in California.

Now, Griffin agreed to this order, so we can’t feel super sorry for him. But, I’m confident that he wouldn’t agree to something that was so far outside the realm of possibilities in court. If his lawyers thought a settlement like that would never happen in a million years in court, they wouldn’t let him agree to it. On the other hand, if there was a risk of a worse deal, then they would tell him to take it.

Move to Texas — we don’t have those kind of laws here. The lawsuit between Griffin and Cameron would never have happened in Texas. First of all, she sued him for breach of some oral contract between them for their relationship. That kind of suit is not allowed in Texas. Plus, we don’t have palimony in Texas. Palimony is where two unmarried people break up and one spouse has to pay the other monthly support post-break up, in the nature of alimony. (See Texas Family Code 8.061.) In Texas, either you’re married or you’re not. That’s it. (We also have very weak alimony laws even for married folks, contrasted to California, so consider that too in where you want to take up residence.) Texas child support laws are also more restrictive. Our standard child support guidelines are fixed to cap the amount of income that is relevant to setting child support (merely $8,550 per month in income is considered). The needs of the child (NOT luxuries, wants, or “station in life”) can be considered for extraordinary child support amounts above the guideline. Usually these types of needs include special disabilities that cause extra expenses. But, this is a rare circumstance. Private school education is the most commonly debated issued for over-guideline child support. But in Texas that is not a need, only a want or a luxury. Public school is just fine, says Texas, and private school is discretionary. If a wealthy parent wants to pay for private school, that is optional and not the business of the courts or the child support amounts. (Here’s an article from Forbes showing that California on average orders double the amount of child support over Texas’ awards.)

So Mr. Griffin, and others like you, I’d suggest looking at Texas for your main residence. We may not have the sun, sand, and beautiful weather like California does (yes, it is very hot here), but your bank account will thank you.

Significant Impairment Standard Applies When the Primary Conservator Seeks to Vacate a Geographic Restriction Within One Year

Subsection (a) of Texas Family Code section 156.102, entitled “Modification of Exclusive Right to Determine Primary Residence of Child Within One Year of Order,” provides:

“If a suit seeking to modify the designation of the person having the exclusive right to designate the primary residence of a child is filed not later than one year after the earlier of the date of the rendition of the order or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based, the person filing the suit shall execute and attach an affidavit as provided by Subsection (b).

Tex. Fam. Code Ann. §156.102(a). Subsection (b) requires that the affidavit contain, along with supporting allegations, at least one of the following allegations:

(1) that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development;

(2) that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or

(3) that the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the best interest of the child.

Tex. Fam. Code §156.102(b).

What if a primary conservator files suit within one year to vacate a geographic restriction? Must she file allege a significant impairment by affidavit per (b)(1) above? Or can she consent to the suit without meeting the elevated standard per (b)(2)?

The Fort Worth Court of Appeals conclusively addressed this argument and held that where a parent who has the exclusive right to designate the primary residence of the child within a defined geographic area seeks to vacate that geographic restriction within one year of the prior order, that parent must allege significant impairment under §156.102(b)(1). In re A.S.M., 172 S.W.3d 710, 713–14 (Tex. App. – 2005, no pet.).

In A.S.M., the Mother was appointed as the parent with the exclusive right to establish the child’s primary residence within Tarrant and continuous counties. Id. at 712. One month following the entry of the divorce decree, Mother sought to modify the order by vacating the geographic restriction. Id. She argued that she was excused from complying with 156.102(b)(1)’s significant impairment standard because she was the primary conservator filing suit under 156.102(b)(2). Id. Father sought dismissal of her cause of action and sanctions for frivolous filing. Id. The trial court agreed with Father, dismissed Mother’s suit for modification filed within one year of the prior order, and awarded sanctions against Mother. Id. at 713. Mother appealed.

The Fort Worth Court of appeals affirmed the trial court’s decision. The court looked to the public policy underlying Title V of the Texas Family Code in general and specifically the specific public policy underlying 156.102:

“The purpose of section 156.102 in particular is to “promote stability in the conservatorship of children by preventing the re-litigation of custodial issues within a short period of time after the custody order is entered.”

Id. at 715, citing In re R.C.S., 167 S.W.3d 145 (Tex. App. — Dallas 2005, pet. denied), cert. denied, 547 U.S. 1055 (2006). The court examined other cases interpreting §156.102 related to imposing a geographic restriction where none existed before, finding similarity between a case seeking to impose a geographic restriction and the case at bar seeking to vacate a geographic restriction:

“…[T]he Waco court has interpreted the provision broadly, to include not only a suit seeking to change the person with the exclusive right to determine a child’s primary residence, but also a suit seeking to change the scope, or terms, of the then-existing designation without changing the identity of the person. We believe that this interpretation of section 156.102(a) is consistent with the underlying purposes of the statute and the public policy applicable to suits affecting the parent-child relationship in general.”

Id., citing In re A.C.S., 157 S.W.3d 9, 17–19 (Tex. App.-Waco 2004, no pet.). The court rejected Mother’s contention that there is a difference between imposing a new geographic restriction and vacating an existing one:

“Appellant attempts to draw a distinction between a suit seeking to eliminate a restriction and a suit seeking to impose a restriction, but we do not believe there to be any meaningful distinction between the two. Granting relief in either situation has the potential to disrupt the status quo of the child’s living arrangements, a result that Texas public policy attempts to avoid except in cases in which the child’s physical or emotional health is in danger.”

Id. at 716, hn 6, citing Tex. Fam. Code. §153.001; R.C.S., 167 S.W.3d at 148; Burkhart v. Burkhart, 960 S.W.2d 321, 323 (Tex.App.-Houston [1st Dist.] 1997, pet. denied); Mobley v. Mobley, 684 S.W.2d 226, 229 (Tex.App.—Fort Worth 1985, writ dism’d).

The Fort Worth Court of Appeals conclusively held that a suit to modify and vacate a geographic restriction brought by the person having the right to determine the child’s primary residence falls within §156.102(a), requiring an affidavit and initial showing of significant impairment to proceed and subject to dismissal without such.

“Thus, we hold that a suit seeking to eliminate or modify the terms of a geographical restriction on a person having the exclusive right to determine a child’s primary residence is a “suit seeking to modify the designation of the person having the exclusive right to designate the primary residence of a child” for purposes of section 156.102(a).”

Id. at 716. Therefore, the Mother was required to file an affidavit alleging significant impairment with her petition/amended petition. Id. The trial court acted properly in dismissing Mother’s suit where no significant impairment was alleged to support vacating a geographic restriction.

Plus, attorney’s fees are mandatory where the modification is dismissed. Where a suit for modification is brought for the sole purpose of harassment, the trial court has authority to award attorney’s fees to the responding party. Tex. Fam. Code §156.005. Specifically, where a party fails to meet the initial pleading requirements of §156.102 showing a significant impairment which results in dismissal of the suit for modification, attorney’s fees are warranted. The Houston 14th Court of Appeals applied §156.005’s mandate to award of attorney’s fees to a dismissal for failure to file a §156.102 affidavit in a modification suit. Stashak v. Stashak, 2003 WL 21230406, at *3 (Tex. App. – Houston [14th Dist.] 2003, no pet.). Further, such attorney fee award must be taxed as court costs and subject to collection as such. Tex. Fam. Code §156.005.

Distinction between Military Deployment and Military Station

The Texas Family code provides special provisions regarding parenting time and access to children when the military parent is deployed.

Military deployment is not the same as a change of duty station (“PCS”). Deployment begins with the physical movement of individuals and units from their home installation to the designated theater of operations. One of the greatest distinctions between a duty station and a deployment, relevant to the questions pertaining to conservatorship, possession and access of a child the subject of a suit affecting the parent-child relationship, is the inability of friends and family to accompany the military member on a deployment. On the other hand, family members accompany the military member to a duty station, and the military member can maintain a relationship with his or her child. A deployment is a temporary location of service, where a duty station is intended to be a more permanent assignment.

This distinction was outlined by the Amarillo Court of Appeals. In re Marriage of Hess, 2009 WL 4824693 (Tex. App. – Amarillo 2009, no pet). There the military member father was stationed in North Carolina where he could have possession of and access to the child the subject of the suit. However, father claimed that it was a deployment under the Texas Family Code and the terms of the parties’ final divorce decree. The trial court rejected this argument, which was affirmed by the Amarillo Court, finding that father’s location in North Carolina was a duty station and not a deployment under the considerations of the Texas Family Code. Id.

Likewise, the Fort Worth Court of Appeals distinguished between a deployment and a duty station. In re Russell, 321 S.W.3d 846 (Tex. App. – Fort Worth, 2010, pet. denied). There, step-father was granted right of access to the child the subject of the suit following divorce from the child’ mother. After divorce, step-father relocated in the military to a duty station in California. He filed for modification of the order, seeking to substitute his parents for himself according to the Texas Family Code provisions regarding deployment of a military member. Following temporary orders hearing, the trial court granted step-father’s parents right to periods of possession of the child finding that father was “deployed” outside the state of Texas. Further dispute arose between mother and step-father’s parents over enforcement of the step-father’s parents’ right of possession, at which point the trial court removed mother as primary conservator of the child, awarded primary conservatorship to step-father’s parents and restricted mother’s access to the child. The trial court denied mother’s challenge to the step-father’s parents’ standing to intervene in the suit. Mother sough mandamus of the standing ruling. The Fort Worth Court of Appeals distinguished between a deployment and a duty station, holding that step-father was “stationed” in California but not “deployed”. Thus, his parents had no standing to intervene as if it were a deployment. Id.

A change of duty station (“PCS”) is different than a deployment such that special parenting provisions do not apply to a change of duty station.

WIN: Supreme Court of Texas rules no withholding or seizure of retirement assets for enforcement of non-statutory alimony

In February, Senior Shareholder Michelle May O’Neil presented oral argument to the Supreme Court of Texas in Dalton v. Dalton, a case out of the Nacogdoches trial court and the Tyler Court of Appeals. Today we learned that she WON that case — the Texas Supreme Court in a unanimous decision reversed the judgment and rendered judgment in favor of our client. Here’s the synopsis of the Court’s decision today:

In a unanimous decision today, the Supreme Court of Texas reversed the judgment of the Tyler Court of Appeals and the Nacogdoches trial court, holding that an out of state alimony agreement/judgment cannot be enforced as if it is a Texas order for spousal maintenance. First, the Court found that the order for wage withholding to enforce the unpaid out of state alimony agreement/order is not permitted under Texas law. The award did not constitute maintenance under Texas’ maintenance statute and there was no showing in the order that the wife qualified under Texas law for maintenance. “[U]nder Texas law, an order incorporating a voluntary support obligation that does not qualify as spousal maintenance creates a debt that is enforceable as a contract, not a court-ordered obligation that is enforceable as a judgment.” The only way that wage withholding would be a remedy is if the parties agree to it in the order. Further, the Court rejected the notion that such an order could be enforceable by judgment remedies up to the statutory limits of the Texas maintenance statute. It either qualifies as a Texas maintenance order at the time it was originally entered, or not. No partial remedies. (Justice Lehrman contends in her concurring opinion that a party could prove eligibility under Texas’ maintenance statute at the time of the enforcement hearing, but the rest of the justices reject her thought.)

When enforcing an out of state support order, the Texas court must give full faith and credit to the out of state order as a judgment, but Texas law controls the enforcement procedures and remedies. The Court rejects the idea that the full faith and credit clause requires Texas to also use the other state’s enforcement remedies, contrary to Texas law. “So the Texas trial court was required to accept the Oklahoma order as an adjudication of the parties’ respective rights and obligations, but Texas law governs the methods by which the Texas court could enforce those rights and obligations.” Since Texas law didn’t provide for wage withholding in these circumstances, the order was void.

The wife also sought enforcement of the out of state alimony agreement/judgment via garnishment of husband’s retirement benefits (called a QDRO). Wife argued that federal law governing retirement accounts (called ERISA) trumped Texas law allowing such garnishment. The Court disagreed, finding that “ERISA does not strip a state’s power to determine how it will govern divorce and support issues in its borders.” The power to issue a garnishment order must come from Texas law, not federal law. If no state law authorizes the garnishment order, then federal ERISA law doesn’t apply and the order is void. In a very sweeping statement, the Texas Supreme Court held that garnishment of retirement assets via QDRO is not a remedy for enforcement of out of state alimony award not issued under Texas maintenance statute, but then goes further to find that garnishment of retirement assets via QDRO is not a permissible remedy for collection of child support or maintenance arrearages at all. (The concurring opinion agrees with the result in this case, that garnishment of retirement assets is not permitted under these facts, but disagrees as to the broad brush of the opinion as it applies to other enforcement.)

The Supreme Court of Texas reversed and rendered judgment in this case, finding both orders VOID under Texas law.

On a side note that is important to me, and it is my blog, so I can take author-license, the Court cites to the Kee v. Kee court of appeals opinion as support for its ruling here. The Kee case was a case that I won several years ago in the Dallas Court of Appeals, finding that wage garnishment was not permitted for a Texas contractual alimony agreement/decree. By SCOTX citing to Kee in this opinion, it elevates Kee to a SCOTX approved decision even though it is only a court of appeals case. So, now Kee’s holding is the equivalent of a SCOTX decision —  that a Texas judgment for alimony that does not comply with Texas’ maintenance statute cannot be enforced through wage withholding remedies. Two wins in one!

Here’s the link to the Dalton opinion: http://www.txcourts.gov/media/1441947/170155.pdf

Here’s the link to the Dalton concurring opinion: http://www.txcourts.gov/media/1441948/170155c.pdf

Here’s the link to the video replay of the Dalton oral arguments from February: http://www.texasbarcle.com/CLE/SCPLAYER.ASP?sCaseNo=17-0155

 

 

 

 

Three’s a crowd: The latest Texas Supreme Court ruling and its effect on non-parent standing

Joe and Sue are down on their luck. Joe just lost his job and Sue has health issues. Along with their four-year-old child, Betsy, they move in with Joe’s parents, who are retired. For months, Joe interviews all over town while working odd-jobs to try to supplement his family income and pay for Sue’s medical bills. Due to Sue’s ailments, Grandma cooks for Betsy and Sue every day, while Grandpa takes Betsy to doctor’s appointments and day care. Six months go by and Joe finally lands the dream job he was hoping for. Joe and Sue start packing up their stuff to move with Betsy into their new home and all of the sudden, a stranger walks up and hands them some papers. Joe takes a look and his face turns ghostly white. His parents, sweet old Grandma and Grandpa, just filed suit to try to gain custody of Betsy. Guess what? The Texas Supreme Court just told the grandparents, “You may not win, but you can sure try.”

The Texas Supreme Court recently resolved a highly debated issue regarding non-parent standing when it determined that Texas Family Code Section 102.003(a)(9) does not require that a non-parent have exclusive control of the child. See In re H.S. ___ S.W.3d ____ (Tex. 2018).  Rather, the Court held that if the non-parent (1) shares a principal residence with the child, (2) provides for the child’s daily physical and psychological needs, and (3) exercises guidance, governance, and direction similar to that typically exercised on a day-to-day basis by parents with their children, that individual has standing to bring a lawsuit.

The Court specified that a non-parent may have standing regardless of whether the nonparent to has ultimate legal authority to control the child, nor does it require the parents to have wholly ceded or relinquished their own parental rights and responsibilities.

I do not agree. Two’s company, three is a crowd.

For starters, the majority focuses on defining “actual care, control, and possession,” claiming that the Legislature did not intend for the nonparent’s care and control to be exclusive. The majority reasons that this would add a requirement that was not there. However, that’s the entire point of having “control”- one person has the “power or authority to manage, direct, and oversee.” If multiple people are exercising control, that goes against the very essence of the definition.

Another issue is the parental presumption that parents are afforded, stating that the presumption that appointing the parents as managing conservators is in the child’s best interest unless the appointment would significantly impair the child’s physical health or emotional development. The majority accurately points out that this ruling does not affect that presumption, however there are two caveats to this.

First, the parent presumption does not apply in modification cases. See In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000). Secondly, as the dissent accurately points out, “although this presumption affords important protection to parents, it does not change the fact that once standing is established, the final decision about the child’s future will be made by a judge or jury, not the child’s parents.” Thus, this decision indirectly waters down the parental presumption by forcing parents to fight these outsiders.

In conclusion, this ruling will have immense consequences. It forces parents to defend cases against third parties they should not have to defend. In many situations, it is likely the third party- especially a grandparent- will have more financial resources, which unfortunately makes a difference in custody battles. If the courtroom wasn’t crowded before, it is now about to be.

When can a nonparent file suit for custody?

ATTENTION PARENTS!  The Texas Supreme Court recently delivered a split 5-4 opinion that is bound to raise eyebrows. The only issue presented is whether a nonparent, like a grandparent or step-parent, has standing under the Family Code to file a suit seeking custody of a child. But, the longstanding implications of this case might force parents to second-guess their decisions…especially when it comes to leaving their beloved babies with trustworthy individuals, like family, friends, or even nannies! This case is turning heads in the Texas family law community.

It’s important to note that this case is only about whether the nonparent has the right to file the suit. This case doesn’t address the standards for a nonparent to actually win the case at the conclusion. It is only about whether they have the right to bring the suit at all. Compare this difference to whether you have the right to open the door of the courthouse and walk inside versus whether you will win once you get there.

Based on the Court’s interpretation, the Family Code acknowledges that a limited group of nonparents—like grandparents or step-parents, who have operated in a parent-like role with regard to a child—may run to the courthouse and request preservation of that relationship over a parent’s objections.  In other words, nonparents who have operated in a parent-like role now have “standing,” or what is required for claims to be litigated and/or decided. For the first time, the courts have now acknowledged a doctrine of “in loco parentis” allowing someone who acts like a parent to have the right to override a parent’s constitutionally protected status.

The category of nonparents could be somewhat broad and include grandparents and step-parents as the obvious examples. This issue also has implications in same-sex relationships for the non-biological/non-adoptive parent of a same-sex couple. I’ve even seen this come up where a nanny tried to sue for custody by alleging the right to file suit under this heading.

Particularly, the Court held that under section 102.003(a)(9), a nonparent has “actual care, control, and possession of the child” if the nonparent operated in a parent-like role for at least six months by (1) sharing a principal residence with the child, (2) supporting the child’s regular physical and psychological needs, and (3) showing guidance, governance, and direction similar to that characteristically exerted on an everyday basis by parents with their offspring.  Interestingly, “the statute does not require the nonparent to have ultimate legal authority to control the child, nor does it require the parents to have wholly ceded or relinquished their own parent rights and responsibilities.”  Consider the facts of this case for further understanding:

Mother and Baby moved into Grandparents’ house.  Mother struggled with alcohol addiction and decided to temporarily seek help.  With Grandparents’ consent, Mother left Baby whilst she moved into a sober-living facility.  When Mother was away, Grandparents managed Baby’s day-to-day activities.  However, Mother only intended to be away for three months and routinely visited over the weekends to care for Baby.  Mother never intended to relinquish parental rights by letting Baby stay with Grandparents.  Nonetheless, Grandparents’ “actual care, control, and possession” of Baby for a period of six months gives them standing to modify a SAPCR order.  Raise any red flags?

A red flag was definitely raised for the dissent, filed by Justice Blacklock.  According to the dissent, the result of this case is that “parents who remain in control of their children’s lives can be forced into visitation and custody fights over their own children by any nonparent whose relationship with the child triggers the Court’s malleable ‘parent-like role’ standard.”  Indeed, once a case gets through those courthouse doors, a judge or several judges—not the parents—will inevitably determine whether or not to uphold the parents’ choices about their child’s future.  The dissent goes on to say that no one can fully stand in a parent’s shoes unless that parent steps out of those shoes and walks away first.

What do you think?  Based on the facts above, did Mom step out of her parental and walk away first?  We will soon find out, as the case was remanded to the trial court to determine the merits of the Grandparents’ petition.

 

This blog post was written by Saira Ukani, our summer law clerk intern out of University of Texas Law School. We appreciate her!

More on how to be a good witness

Last month’s article addressed 10 tips for being a good witness in a divorce hearing. Here are a few more tips for being a witness in court:

  1. Before you testify, picture the scene and try to refresh your memory.
  2. Neat appearance and proper dress are important. Don’t let your clothes distract from your message.
  3. Avoid distracting mannerisms. Stand upright, pay attention, and speak clearly. Avoid nervous habits, like leg shaking or playing with your hair.
  4. Don’t try to memorize what you are going to say.
  5. Be serious in the courtroom. Don’t make jokes or laugh if someone else does. Court is supposed to be a somber place with proper deference given to the seriousness of the issues.
  6. Speak clearly and loudly enough for the judge or jury to hear you.
  7. Listen carefully to the question. Don’t give snap answers. Understand the question before you answer.
  8. Explain your answer when appropriate. If you can’t answer with a “yes” or “no”, don’t feel forced to. Just say, that’s not a yes or no answer.
  9. Answer only the question asked. Don’t volunteer information. If someone asks you “are you wearing a watch?”, the right answer is “yes” or “no”. The wrong answer is “yes, and it is 10:30 am  on March 15, 2018.” See the difference?
  10. If your answer was not correctly stated or summarized, correct it immediately.
  11. Don’t give conclusions or opinions unless specifically asked. Stick to the facts. Let the Judge draw conclusions. Witnesses are in the fact-giving business. Judges are in the conclusion business.
  12. Use phrases that are accurate – “That is all I recall” versus “Nothing else happened”.
  13. Always be courteous, even if the lawyer questioning you isn’t.
  14. You are sworn to tell the truth. Tell it.
  15. If the judge interrupts you or a lawyer makes an objection, stop talking immediately. Wait for instructions from the judge.
  16. Give positive, definitive answers when possible. Avoid saying, “I think” or looking unsure about your responses.
  17. Try to not seem nervous.
  18. Do not lose your temper.
  19. If you don’t want to answer, avoid asking the judge “Do I have to answer that?”. It makes everyone’s ears perk up to listen and almost every time the answer will be yes.
  20. Don’t look to the lawyers for cues. You must answer what you know.
  21. Do not argue with the lawyer.
  22. Do not nod your head for “yes” or “no”. Speak clearly so your answer gets into the court reporter’s record.
  23. When walking to the stand, be confident – no smirk, smiles, or downcast look.
  24. If asked, “Have you spoken to anyone about this case?”, answer truthfully.
  25. Review these tips before you testify, so they are firmly implanted in your mind.

In conclusion, don’t feel like you have to be a perfect witness. Being a witness is stressful and everyone, including the Judge, knows it.

Hat tip to Cortney Harrison Bethmann and his article on AVVO 25 Tips for Being a Good Witness.

Beneficiary designation after divorce invalid — law upheld by US Supreme Court

The Supreme Court recently issued an opinion parsing out the practical concerns at play in a post-divorce life insurance case.  Specifically, in Sveen v. Melin, a former spouse designated as primary beneficiary in her ex-husband’s life-insurance policy urged the Court to dissect the constitutionality of a Minnesota statute that automatically revoked such designation upon divorce.  After review, the Supreme Court determined that revocation-upon-divorce statutes are indeed constitutional when applied retroactively.

To better understand the case at hand, consider the following facts: Mark Sveen married Kaye Melin in 1997 and designated her as the primary beneficiary of his life-insurance policy.  In 2002, Minnesota revised its code so that the designation of a spouse as a beneficiary would automatically be revoked upon divorce.  Mark and Kaye divorced in 2007, and much to the surprise of his children, he failed to update the beneficiary designation.  So, when Mark died in 2011, the insurance company was uncertain how to proceed: should it pay the proceeds to Mark’s ex-wife (Kaye), or alternatively, to Mark’s children?  Phrased differently, should the insurance company follow Mark’s original instruction, or alternatively, Minnesota’s new statute?  Given this predicament, the insurance company asked the Court for help.

In an 8-1 opinion, the Court held that the retroactive application of Minnesota’s revocation-upon-divorce statute does not violate the contracts clause of the Constitution.  According to the Court, the law in this case was meant to reflect the policyholder’s intent, thus supporting, rather than frustrating, the contractual scheme.  Reasonably so, Mark, amongst many others, would probably not want his life insurance proceeds to pass to his ex-wife.  Furthermore, the law in this case was unlikely to defeat the policyholder’s expectations, as the policyholder could not sensibly assume a beneficiary designation would remain in place post-divorce.  Moreover, the law in this case purely functioned as a default rule, which the policyholder could undo at any point in time by submitting a new beneficiary designation form.  According to the Court, the hassle, or lack thereof, of such negligible paperwork does not violate the contracts clause under its established precedent.

Like Minnesota, Texas has a similar statute under the Texas Family Code §9.301, which is why the Supreme Court’s decision is particularly relevant to us.  In Texas, a divorce invalidates any pre-divorce designation of the former spouse as a beneficiary of life insurance unless (1) the decree designates the insured’s former spouse as the beneficiary, (2) the insured re-designates the former spouse as the beneficiary after rendition of the decree, or (3) the former spouse is designated to receive the proceeds in trust for, on behalf of, or for the benefit of a child or a dependent of either former spouse.  It is important to keep in mind, however, that this state statute is preempted by ERISA!

 

This post comes from Saira Ukani, summer law clerk for O’Neil Wysocki. Saira is a law student at the University of Texas School of Law. She is interested in family law as a career after law school. We are happy to have her helping with our blog as well!

Can you track your spouse’s car or rummage through her smartphone?

Hat tip to Pierre Grosdiddier at Haynes and Boone for the article in the June Texas Bar Journal entitled Privacy Matters. He poses the question as to whether putting a tracking device on a car or rummaging through your spouse’s cellphone are “no-no’s”. Texas Penal Code 16.06 prohibits tracking a vehicle owned by another person. But what happens if a car is jointly owned community property? A Harris County district judge recently refused to apply Penal Code 16.06 to a situation where the car was jointly owned community property, finding no violation under the law for putting a tracking device on a car titled in both names because it is a jointly managed community asset. Of course, this begs the question, what happens if the car is in one spouse’s name but purchased during the marriage and therefore a special management community asset?

On the other hand, the Dallas Court of Appeals held that a spouse was entitled to privacy in his or her cellphone, even if the cellphone is presumptively community property. The Dallas Court relied on factors such as the similarity between a smartphone and a computer under the wiretap laws, the expectation of privacy by a spouse in the phone, the exclusivity of use of the phone by the spouse, and the password protecting of the phone. Thus, information obtained from the phone was illegal and could not be used in court.

Check out the video from the State Bar of Texas here: https://www.youtube.com/watch?v=TvcxJcrFg4A&feature=youtu.be 

And check out the article in the Texas Bar Journal here: https://editions.mydigitalpublication.com/publication/?i=499958#{%22issue_id%22:499958,%22page%22:14}

 

 

Anticipated change of circumstances does not support modification

Where a change of circumstances is anticipated by the parties prior to entry of an order, such change does not rise to a “material and substantial change of circumstances to support modification”. The First District Court of Appeals confirmed this in their recent holding in Smith v. Karanja. Smith v. Karanja, 2018 WL 761905 (Tex. App. – Houston [1st Dist.] 2018, no pet.). “If a circumstance was sufficiently contemplated at the time of an original agreement, its eventuality is not a changed circumstance, but instead an anticipated circumstance that cannot be evidence of a material or substantial change of circumstances.” Id. The Houston Court relied on the Warren case out of Austin in support.  Id. 

In Warren, the mother’s move was anticipated at the time of the original agreement because her and then-boyfriend, now husband, was military at the time of the agreement.   Warren v. Ulatoski, 2016 WL 426999 at *5 (Tex. App.-Austin 2016, no pet.)  Therefore, the event of the move actually occurring could not be a changed circumstance, but only an anticipated circumstance addressed by the original agreement. Id.  The Houston Court pointed to the fact that since mother’s husband was active-duty military and thus subject to relocation, the actual occurrence of relocation was contemplated by the parties at the time of the prior order.

In 2006, the Austin Court of Appeals determined that changes anticipated in the original divorce decree do not thereafter rise to the level of material and substantial changes. Zieifman v. Michels, 212 S.W.3d 582 (Tex. App. – Austin 2006). At the time of the divorce, the parties entered into a negotiated agreement that their children would attend certain schools. Id. They further agreed that if they were unable to agree on educational decisions, they would follow the recommendations of the teacher of the child at issue. Id. Thus, the agreement contemplated that the child would age, specified the schools agreed upon and even the alternatives, and provided a mechanism for dispute resolution should a disagreement arise. Id. Mother sought modification of the school restrictions to allow the child to attend a private school that was not part of the original agreement, but Father objected. Id. The Austin Court noted that the policy behind the requirement of a material and substantial change is encourage stability in conservatorship and prevent constant relitigation with respect to children, based on the doctrine of res judicata as to the child’s best interest at the time of the prior order. Id. at 595, citing In re M.N.G., 113 S.W.3d 27, 33 (Tex.App.-Fort Worth 2003, no pet.); Watts v. Watts, 563 S.W.2d 314, 316 (Tex.Civ.App.-Dallas 1978, writ ref’d n.r.e.).  Thus, the party seeking modification bears the burden of demonstrating a material and substantial change in circumstances since the original decree. Id., citing Bates, 81 S.W.3d at 423. The requirement of this showing “serves a valid purpose of significantly limiting the trial judge’s discretion and prevents the modification statute from being unconstitutionally broad.” Id., citing M.N.G., 113 S.W.3d at 34. Therefore, the Austin Court held that the parties agreed as to the schools the child would attend, anticipated that they might disagree about educational decisions in the future, and provided a mechanism for resolving such disagreements. Id. “At the time of their divorce, the parties chose to send their children to public schools unless they agreed otherwise. They also correctly anticipated that they might disagree about educational decisions concerning the children in the future and included an agreed mechanism in the decree for resolving any such disagreements.” Id. at 596. Therefore, the changes Mother sought were anticipated at the time of divorce, negotiated, and addressed. Such anticipated changes could not rise to the level of a material and substantial change sufficient to warrant modification of the prior order. Id.

 

LexBlog