Divorce Pleadings
A divorce suit is potentially five actions in one: (1) a suit for the dissolution of the marriage, (2) a suit to divide the property of the marriage, (3) a suit for spousal maintenance, (4) a suit affecting the parent-child relationship, and (5) a suit for any interspousal or third-party tort or contract actions. The suit for divorce, the suit to divide the property of the marriage, and the suit affecting the parent-child relationship must be joined and cannot be severed. In re B.T.G., 494 S.W.3d 839, 842–43 (Tex. App.—Dallas 2016, no pet.).
To enter a valid order in a suit for divorce, except for a status determination, the court must have both personal jurisdiction over the parties and subject-matter jurisdiction. “Personal jurisdiction” refers to the court’s power to render a valid and binding judgment against a party. See In re Marriage of J.B. & H.B., 326 S.W.3d 654, 663 (Tex. App.—Dallas 2010, pet. dism’d) (See sections 3.4 and 3.12 below for further discussion.) “Subject-matter jurisdiction” refers to the power of a court, under the constitution and laws, to determine the merits of an action between the parties and to render judgment. See Ysasaga v. Nationwide Mutual Insurance Co., 279 S.W.3d 858, 864 (Tex. App.— Dallas 2009, pet. denied). If the constitution or the laws deprive the court of the power to decide a matter, there is no subject-matter jurisdiction. In re Marriage of J.B. & H.B., 326 S.W.3d 654.
Death of a party abates a divorce action and its incidental inquiries of property rights and child custody. Whatley v. Bacon, 649 S.W.2d 297, 299 (Tex. 1983). The death of either party to the divorce action leaves the trial court without jurisdiction to issue any orders based on the underlying divorce action. See Garcia v. Daggett, 742 S.W.2d 808, 809–10 (Tex. App.—Houston [1st Dist.] 1987, orig. proceeding [leave denied]). If one of the parties to a divorce action dies before a divorce is rendered, the proper procedural disposition is dismissal of the divorce action. Pollard v. Pollard, 316 S.W.3d 246, 251 (Tex. App.—Dallas 2010, no pet.). Any claims against a third party in the divorce action must be dismissed with the divorce. See In re Footman, No. 03-15-00477-CV, 2015 WL 7164170, at *1 (Tex. App.—Austin Nov. 10, 2015, no pet.) (mem. op.). However, if the trial court has rendered an oral judgment held to be a final judgment, dispositive of the issues before the court, the court may proceed to enter the decree. Dunn v. Dunn, 439 S.W.2d 830, 834 (Tex. 1969).
The filing of a bankruptcy petition automatically stays the commencement or continuation of a suit for divorce, at least to the extent the proceeding seeks to divide the marital estate, even if a party or the court learns of the bankruptcy petition after acting in a divorce suit. The stay abates any judicial proceeding against the debtor, depriving state courts of jurisdiction over the debtor and his property until the stay is lifted or modified. Any action taken in violation of the stay is void, not merely voidable. A judgment or decree entered in violation of the stay is void for lack of jurisdiction and so constitutes fundamental error that can be raised for the first time on appeal, even sua sponte by the appellate court. Adeleye v. Driscal, 488 S.W.3d 498, 499 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
Federal law contains exceptions to the automatic stay rule that affect family law cases, which are described in section 8.64 in this manual.
The suit is to be styled “In the Matter of the Marriage of ______________ and ______________.” Tex. Fam. Code § 6.401(a). If there is a child, the caption continues with “and in the Interest of _________, (a) Child(ren).” Tex. Fam. Code § 102.008(a).
Citation is the same as in civil cases generally. See generally Tex. R. Civ. P. 99–107.
If a child is involved, the persons who are entitled to citation include—
1.any managing conservator;
2.any possessory conservator;
3.anyone having possession of or access to the child under an order;
4.anyone required by law or order to provide for the support of the child;
5.any guardian of the person of the child;
6.any guardian of the estate of the child;
7.each parent as to whom the parent-child relationship has not been terminated or process has not been waived under Family Code chapter 161;
8.any alleged father unless there is attached to the petition an affidavit of waiver of interest executed by the alleged father under Family Code chapter 161 or unless the petitioner has complied with the provisions of section 161.002(b)(2), (b)(3), or (b)(4);
9.a man who has filed a notice of intent to claim paternity as provided by Family Code chapter 160;
10.the Texas Department of Family and Protective Services, if the petition requests that the department be appointed managing conservator of the child;
11.the title IV-D agency, if the petition requests termination of the parent-child relationship and support rights have been assigned to the agency under Family Code chapter 231;
12.a prospective adoptive parent to whom standing has been conferred under Family Code section 102.0035; and
13.a person designated as the managing conservator in a revoked or unrevoked affidavit of relinquishment under Family Code chapter 161 or to whom consent to adoption has been given in writing under Family Code chapter 162.
Citation may be served on any other person who has or who may assert an interest in the child. Tex. Fam. Code § 102.009(b). In an interstate custody case, citation should be served on any person who has physical custody of the child. See Tex. Fam. Code § 152.205(a). If the petition seeks to establish, terminate, modify, or enforce any support right assigned to the title IV-D agency under Family Code chapter 231, notice shall be given to the title IV-D agency in a manner provided by rule 21a of the Texas Rules of Civil Procedure. Tex. Fam. Code § 102.009(d). An incarcerated litigant has the right to personal service, and service of process delivered to an officer of the state correctional facility who is not designated as the agent for service of civil process under Tex. Civ. Prac. & Rem. Code § 17.029 is improper. In re J.M.H., 414 S.W.3d 860 (Tex. App.—Houston [1st Dist.] 2013, no pet.).
Unless the citation or a court order otherwise directs, the citation must be served by (1) delivering to the defendant, in person, a copy of the citation (showing the delivery date) and of the petition or (2) mailing to the defendant by registered or certified mail, return receipt requested, a copy of the citation and of the petition. Tex. R. Civ. P. 106(a).
A trial court’s jurisdiction is dependent on citation issued and served in a manner provided for by law. Unless the record affirmatively shows an appearance by the defendant, proper service of citation on the defendant, or a written waiver of service at the time the default judgment is entered, the trial court does not have personal jurisdiction to render the default judgment against the defendant. For a default judgment to withstand direct attack, the record must establish strict compliance with the rules of civil procedure governing issuance, service, and return of citation. There are no presumptions in favor of valid issuance, service, or return of citation. If the record does not affirmatively show strict compliance with the rules, the attempted service of process is invalid, the trial court has no personal jurisdiction over the defendant, and the judgment is void. Virtually any deviation from the statutory requisites for service of process will destroy a default judgment. Creaven v. Creaven, 551 S.W.3d 865, 870 (Tex. App.—Houston [14th Dist.] 2018, no pet.); see McCoy v. McCoy, No. 02-17-00275-CV, 2018 WL 5993547 (Tex. App.—Fort Worth Nov. 15, 2018, no pet.) (mem. op.) (where original return of service did not show that process server was sheriff, constable, or court clerk and was not notarized, it did not comply with Tex. R. Civ. P. 107, and service was insufficient).
The return of service must meet the requirements of rule 107 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 107. Rule 107 requires that the “return, together with any document to which it is attached,” include several specific pieces of information, including a description of what was served, the date and time the process was received for service, and the person or entity served. Tex. R. Civ. P. 107(b)(3)–(5). There are no presumptions in favor of valid issuance, service, and return of citation in the face of a writ of error attack on a default judgment. Primate Construction, Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam). The return of service is prima facie evidence of how service was performed. Creaven, 551 S.W.3d at 871. A court should give a return of service a fair, reasonable, and natural construction as to its plain intent and meaning. Mandel v. Lewisville ISD, 445 S.W.3d 469, 475 (Tex. App.—Fort Worth 2014, pet. denied). As long as the record as a whole—including the petition, citation, and return—shows that the citation was served on the defendant, service of process will not be invalidated. Williams v. Williams, 150 S.W.3d 436, 444 (Tex. App.—Austin 2004, pet. denied); see also In re S.C., No. 02-15-00191-CV, 2015 WL 9435937, at *2 (Tex. App.—Fort Worth Dec. 23, 2015, no pet.) (mem. op.) (fair and reasonable construction of return of service combined with attached citation and certified mail return receipt containing wife’s undisputed signature is that wife was served with citation).
COMMENT: When the process server returns the citation, check the return of citation carefully to ensure it contains the required information and is correct; is verified or signed under penalty of perjury if signed by a person other than a sheriff, a constable, or the clerk of the court; and otherwise meets all the requirements of rule 107 of the Texas Rules of Civil Procedure.
Texas Rule of Civil Procedure 118 allows for liberal amendment of the return of service to show the true facts of service. Creaven, 551 S.W.3d at 873. At any time in its discretion and on such notice and on such terms as it deems just, the court may allow any process or proof of service to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued. Tex. R. Civ. P. 118.
Texas law prefers personal service over substituted service. When the plaintiff uses substituted service, Texas law places a burden on the plaintiff to prove that he served the defendant in the manner required by the applicable rule. Creaven, 551 S.W.3d at 870. On motion supported by a statement—sworn to before a notary or made under penalty of perjury—listing any location where the respondent can probably be found and stating specifically the facts showing that service has been attempted under rule 106(a)(1) or (a)(2) at the location named in the statement but has not been successful, the court may authorize service (1) by leaving a copy of the citation and the petition with anyone older than sixteen at the location specified in the statement or (2) in any other manner, including electronically by social media, email, or other technology, that the statement or other evidence shows will be reasonably effective to give the respondent notice of the suit. Tex. R. Civ. P. 106(b). An affidavit is sufficient under rule 106 if it provides evidence of probative value that the location stated in the affidavit is the defendant’s usual place of business or usual place of abode or other place where the respondent can probably be found. In re C.L.W., 485 S.W.3d 537, 541 (Tex. App.—San Antonio 2015, no pet.); see also Hutagaol v. Janaka, No. 01-20-00684-CV, 2022 WL 1144635 (Tex. App.—Houston [1st Dist.] Apr. 19, 2022, no pet.) (mem. op.) (reversing default judgment taken against wife after trial court authorized substituted service on her by delivering copies of suit to security guard outside wife’s parent’s gated community).
COMMENT: The amendment to rule 106 of the Texas Rules of Civil Procedure effective January 1, 2021, replaced the requirement of an affidavit with that of a statement sworn before a notary or made under penalty of perjury.
For a default judgment to be sustained based on substituted service, the burden is on the plaintiff to prove that the defendant was served in the manner required by the applicable statute. Service of process must be performed in strict compliance with the appropriate statutory provisions to support a default judgment. Strict compliance is especially important when substituted service under rule 106 is involved. In re C.L.W., 485 S.W.3d at 540–41. When a trial court orders substituted service under rule 106, the only authority for the substituted service is the order itself. As a result, any deviation from the trial court’s order necessitates a reversal of the default judgment based on service. Creaven, 551 S.W.3d at 870.
Caveat: When uncertain as to who the agent is for service of process for service on an incarcerated inmate, a rule 106 motion for alternative service may be appropriate.
Citation in a divorce suit may be by publication as in other civil cases, except that notice shall be published one time only. Tex. Fam. Code § 6.409(a). However, citation by publication is appropriate only after a diligent effort to locate the whereabouts of a party without success. Curley v. Curley, 511 S.W.3d. 131, 134 (Tex. App.—El Paso 2014, no pet.). The form of the notice is prescribed in the statute. See Tex. Fam. Code §§ 6.409(b), (c), 102.010(c). The citation must include the correct caption for the case, including reference to any minor children, if applicable. Curley, 511 S.W.3d. at 134. In personam jurisdiction can be acquired through service by publication unless the defendant resides outside Texas. In re A.B., 207 S.W.3d 434 (Tex. App.—Dallas 2006, no pet.). If there is no suit affecting the parent-child relationship, service by publication may be completed by posting the citation at the courthouse door for seven days in the county in which the suit is filed. Tex. Fam. Code § 6.409(d).
Rule 244 of the Texas Rules of Civil Procedure requires that a trial court appoint an attorney ad litem to represent defendants served with citation by publication who fail to file an answer or appear before the court. Cahill v. Lyda, 826 S.W.2d 932, 933 (Tex. 1992) (per curiam). In every such case a statement of the evidence, approved and signed by the judge, shall be filed with the papers of the cause as a part of the record thereof. Tex. R. Civ. P. 244. The purpose of the portion of rule 244 requiring the appointment of an attorney ad litem is to provide a nonappearing defendant effective representation. Isaac v. Westheimer Colony Ass’n, 933 S.W.2d 588, 591 (Tex. App.—Houston [1st Dist.] 1996, writ denied). Absent strict compliance with the essential requirements of rule 244, a trial court commits reversible error. Isaac, 933 S.W.2d at 591.
If the petitioner or the petitioner’s attorney of record makes an oath that no child presently under eighteen years of age was born or adopted by the spouses and that no appreciable amount of property was accumulated by the spouses during the marriage, the court may dispense with the appointment of an attorney ad litem. In a case in which citation was by publication, a statement of the evidence, approved and signed by the judge, shall be filed with the papers of the suit as a part of the record. Tex. Fam. Code § 6.409(e).
If citation by publication is authorized, the court may, on motion, prescribe a different method of substituted service if the court finds and recites in its order that the method so prescribed would be as likely as publication to give the defendant actual notice. Tex. R. Civ. P. 109a.
Waiver of Service: A party may waive service after the suit is filed by filing a waiver acknowledging receipt of a copy of the citation. The waiver must contain the party’s mailing address, and it must be sworn before a notary public who is not an attorney in the suit unless the party waiving is incarcerated. The Texas Rules of Civil Procedure do not apply to these waivers. The waiver may not be signed using a digitized signature. Tex. Fam. Code § 6.4035. See Beard v. Uriostegui, 426 S.W.3d 178, 182 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (letter to trial court constitutes pro se answer, not waiver of service).
Waiver of service of an original petition, however, does not also waive a respondent’s right to receive service of any amended petitions unless it expressly contains such a waiver. Garduza v. Castillo, No. 05-13-00377-CV, 2014 WL 2921650, at *2–3 (Tex. App.—Dallas June 25, 2014, no pet.) (mem. op.).
A Texas trial court may exercise jurisdiction only over those portions of the suit for which it has authority. See Tex. Fam. Code § 6.308. For example, a Texas court may render a decree of dissolution of the marriage of a Texas spouse without having personal jurisdiction over both spouses for purposes of property division. Tex. Fam. Code §§ 6.301–.304, 6.306–.307; Dawson-Austin v. Austin, 968 S.W.2d 319, 324–25 (Tex. 1998); Mason v. Mason, 321 S.W.3d 178 (Tex. App.—Houston [1st Dist] 2010, no pet.).
On the other hand, a spousal support order may be rendered against a nonresident obligor only if the court has personal jurisdiction over that party. Tex. Fam. Code § 8.051. Personal jurisdiction, unlike subject-matter jurisdiction, can be conferred by consent or waiver. Personal service is always necessary if a judgment in personam is to be rendered against a nonresident. In re A.B., 207 S.W.3d 434 (Tex. App.—Dallas 2006, no pet.); see Estin v. Estin, 334 U.S. 541 (1948). The impact of this restriction of the trial court’s jurisdiction is mitigated by the expansive long-arm statute contained in Tex. Fam. Code § 6.305.
A party must plead in its petition facts that are sufficient for the court to exercise personal jurisdiction over a nonresident respondent. The failure of a petition to include these jurisdictional facts will cause a default judgment against the respondent to be reversed for all the purposes for which personal jurisdiction is required. See Calvert v. Calvert, 801 S.W.2d 217, 219 (Tex. App.—Fort Worth 1990, no writ).
If the petitioner is a resident or domiciliary of Texas at the time a divorce suit is filed, the court may exercise personal jurisdiction over the respondent or the respondent’s personal representative although the respondent is not a resident of Texas if (1) Texas is the last marital residence of the petitioner and the respondent and the suit is filed before the second anniversary of the date on which marital residence ended or (2) there is any basis consistent with the constitutions of Texas and of the United States for the exercise of personal jurisdiction. Tex. Fam. Code § 6.305(a).
A court acquiring jurisdiction for a divorce under section 6.305(a) also acquires jurisdiction over the respondent in a suit affecting the parent-child relationship. Tex. Fam. Code § 6.305(b). Long-arm provisions for separate personal jurisdiction in suits affecting the parent-child relationship are discussed at section 3.49 below. See also section 3.50 concerning the Uniform Child Custody Jurisdiction and Enforcement Act.
Texas courts may exercise jurisdiction over a nonresident defendant if the Texas long-arm statute authorizes the exercise of jurisdiction and if the exercise of jurisdiction comports with due process. Goodenbour v. Goodenbour, 64 S.W.3d 69, 77 (Tex. App.—Austin 2001, pet. denied). In a suit for dissolution of a marriage, a Texas court may acquire jurisdiction over a nonresident spouse if Texas was the parties’ last marital residence (if the suit is filed within two years of the date on which marital residence ended) or if there is any basis consistent with the state and federal constitutions for exercise of personal jurisdiction. Tex. Fam. Code § 6.305(a).
The Family Code does not define the term last marital residence, and case law interpreting section 6.305(a)(1) is sparse. Goodenbour, 64 S.W.3d at 76. The last marital residence requires more than one spouse’s occasional visits with the partner and the children at the other spouse’s residence during marital separation. The last marital residence implies “a permanent place of abode by the spouses.” Cossey v. Cossey, 602 S.W.2d 591, 595 (Tex. App.—Waco 1980, no writ). Evidence that the couple had no intention of separating when the residence was acquired was one of three facts that the trial court found established the parties’ last marital residence, along with the fact that the husband had visited the wife in the Texas residence and had paid her money each month to pay the expenses of that residence. Aduli v. Aduli, 368 S.W.3d 805, 815 (Tex. App.—Houston [1st Dist.] 2012, no pet.). One court has held that marital cohabitation in Texas from November to February was sufficient to create a last marital residence, bringing the nonresident spouse within Texas long-arm jurisdiction. Scott v. Scott, 554 S.W.2d 274, 277 (Tex. App.—Houston [1st Dist.] 1977, no writ). See also Nieto v. Nieto, No. 04-11-00807-CV, 2013 WL 1850780 (Tex. App.—San Antonio May 1, 2013, pet. denied) (mem. op.) (affirming San Antonio as parties’ residence for at least six months prior to divorce based on parties’ owning marital residence and conducting business there).
In applying the term last marital residence, courts should acknowledge that more and more frequently one spouse may, by choice or necessity, work in a state or country apart from the family unit for a period of time. A work separation, in which spouses live apart to pursue professional opportunities, must be distinguished from a marital separation, in which spouses have decided to dissolve their marriage. Much as a military member may be on temporary assignment elsewhere, one spouse may, for a time, pursue a work assignment away from the other family members. The family decision to endure a work separation may include consideration of what schooling or other opportunities are best for the children. Because the family has made the decision to remain an intact unit, the fact that the spouses live apart does not mean that a marital residence no longer exists. As long as the parties choose to maintain a marriage, there will be a last marital residence somewhere. Goodenbour, 64 S.W.3d at 76–77.
Once the long-arm statute is satisfied, the court must next consider whether the exercise of personal jurisdiction over the respondent comports with federal due process. Goodenbour, 64 S.W.3d at 78. Federal due process protects a person’s liberty interest from being subject to binding judgments in a forum with which he has established no meaningful contacts, ties, or relations. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471–72 (1985) (citing International Shoe Co. v. Washington, 326 U.S. 310, 319 (1945)). Under the federal constitutional test of due process, a state may assert personal jurisdiction over a nonresident defendant only if the defendant has purposefully established minimum contacts with the forum state and the exercise of jurisdiction comports with traditional notions of fair play and substantial justice. Burger King, 471 U.S. at 476; see also TeleVentures, Inc. v. International Game Technology, 12 S.W.3d 900, 907 (Tex. App.—Austin 2000, pet. denied). Central to the issue of due process “is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Burger King, 471 U.S. at 474.
The minimum-contacts analysis has been refined into two types of jurisdiction: general and specific. General jurisdiction exists if the defendant’s contacts with the forum state are continuous and systematic, even if the cause of action does not arise from or relate to activities conducted within Texas. TeleVentures, 12 S.W.3d at 907. For general jurisdiction, the minimum-contacts analysis is more demanding, requiring a showing of substantial activities within the forum state. Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex. 1990). Therefore, the court must determine that there are either minimum contacts sufficient to confer specific jurisdiction or continuous and systematic contacts sufficient to confer general jurisdiction. Goodenbour, 64 S.W.3d at 78. To establish specific jurisdiction, the cause of action must arise out of or relate to the nonresident defendant’s contact with the forum state, and the conduct must have resulted from that defendant’s purposeful conduct, not the unilateral conduct of the plaintiff or others. TeleVentures, 12 S.W.3d at 907. Therefore, in analyzing minimum contacts for the purpose of determining Texas courts’ specific jurisdiction, the court must focus on the relationship among the defendant, the forum, and the litigation. Goodenbour, 64 S.W.3d at 79.
Under the minimum-contacts test for specific jurisdiction, the court must determine whether the defendant has had purposeful contacts with the forum state, thereby invoking the benefits and protections of its laws. This requirement ensures that a nonresident defendant will not be haled into a jurisdiction based solely on random or fortuitous contacts or the “unilateral activity of another party or a third person.” Goodenbour, 64 S.W.3d at 79 (citation omitted). As long as the contact creates a substantial connection with the forum state, even a single act can support jurisdiction, but a single act or occasional acts may be insufficient to establish jurisdiction if their nature and quality and the circumstances of their commission create only an attenuated connection with the forum. Burger King, 471 U.S. at 475 n.18. In determining whether a nonresident defendant’s contacts are random and fortuitous, the Texas Supreme Court has looked at whether the contacts are based on the unilateral acts of the plaintiff or whether the defendant participated in an act that resulted in a contact. Dawson-Austin, 968 S.W.2d at 326; CSR Ltd. v. Link, 925 S.W.2d 591, 595 (Tex. 1996). Ownership of real property in Texas is an important consideration in any minimum-contacts analysis. Goodenbour, 64 S.W.3d at 79; see also Shaffer v. Heitner, 433 U.S. 186, 208 (1977).
Once it is determined that the defendant had sufficient minimum contacts with Texas, the court should next turn to whether the exercise of jurisdiction in Texas is reasonable. To determine whether jurisdiction is reasonable, the court evaluates the following factors: (1) the burden on the defendant, (2) Texas’s interest in adjudicating the dispute, (3) the plaintiff’s interest in obtaining convenient and effective relief, (4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several states in furthering fundamental substantive social policies. Goodenbour, 64 S.W.3d at 80 (citing Burger King, 471 U.S. at 477).
Texas has exercised jurisdiction based on “minimum contacts” in a number of cases. Goodenbour, 64 S.W.3d at 69 (minimum contacts found—husband owned property in Texas, spent time in family home in Texas; residence in Texas listed on income tax return as family residence); Reynolds v. Reynolds, 2 S.W.3d 429, 431 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (Texas had personal jurisdiction over husband because he had previously resided in Texas, paid mortgage on jointly owned home in Texas, and paid car insurance on wife’s car located in Texas); see also In re Gonzalez, 993 S.W.2d 147, 151–54 (Tex. App.—San Antonio 1999, no pet.) (personal service effected on alleged father, Mexican citizen, when his plane touched down in Texas to refuel while en route to Colorado from Mexico—prior minimum contacts, conception of child in Texas, property owned in Texas, residence periodically in Texas).
However, when no minimum contacts have been found, Texas has held that the trial court has jurisdiction only to grant the divorce, not to divide the marital estate. Dawson-Austin, 968 S.W.2d at 326 (wife found to have no “minimum, purposeful contacts” with Texas—she never lived in Texas; her only contact had been to attend business convention nine or ten years earlier).
Either party may demand a jury trial in a suit for divorce. Tex. Fam. Code § 6.703. The jury demand must be timely made in writing and the jury fee paid. Tex. R. Civ. P. 216; In re Marriage of Crosby, 322 S.W.3d 354 (Tex. App.—El Paso 2010, no pet.). Although the findings of the jury are only advisory in some aspects of the case, it has been held to be reversible error to fail to submit all disputed fact issues to a jury when a jury is timely demanded unless no material issues of fact exist and an instructed verdict would have been justified. See Grossnickle v. Grossnickle, 865 S.W.2d 211, 212 (Tex. App.—Texarkana 1993, no writ). The court may not submit jury questions on the issues of support under Family Code chapter 154 or 159; a specific term or condition of possession or access; or conservator rights and duties, except for a determination of which joint managing conservator has the exclusive right to designate the primary residence of the child and determinations regarding geographic restrictions on primary residence. Tex. Fam. Code § 105.002(c)(2).
In a jury trial, division of the estate is properly determined by the court, not by the jury, although a jury’s determination of the character or value of property is binding on the court. Archambault v. Archambault, 763 S.W.2d 50, 51 (Tex. App.—Beaumont 1988, no writ).
COMMENT: Suggested jury questions, instructions, and definitions for use in family law cases are contained in the current edition of State Bar of Texas, Texas Pattern Jury Charges—Family and Probate. See also section 3.48 below for a discussion of issues that may be submitted in parent-child cases and whether they are binding or advisory.
§ 3.6Trial before Associate Judge
The judge of a court having jurisdiction of suits under Family Code title 1, 4, or 5 or chapter 45 may appoint a full-time or part-time associate judge to perform specified duties if the commissioners court for a county in which the court has jurisdiction authorizes employment of an associate judge. Tex. Fam. Code § 201.001(a). The provisions of Family Code section 201.001 do not apply to an associate judge for title IV-D cases appointed under section 201.101 or to an associate judge for child protective cases appointed under section 201.201. Tex. Fam. Code § 201.001(e). The judge may refer to the associate judge any aspect of a suit under title 1, 4, or 5 or chapter 45, including, unless a party objects in writing within ten days of receiving notice of the referral to the associate judge, a trial on the merits. Tex. Fam. Code § 201.005(a)–(c). A court reporter is not required during a hearing held by an associate judge. However, a court reporter is required to be provided if the associate judge presides over a jury trial or a contested final termination hearing. Tex. Fam. Code § 201.009(a). A party, the associate judge, or the referring court may provide for a reporter during the hearing if one is not otherwise provided. Tex. Fam. Code § 201.009(b).
COMMENT: The local rules in some counties refer all cases for final trial to the associate judge, on filing, requiring that the objection to the referral be made in the initial pleading or be waived.
Failure to timely object to referral to an associate judge does not deprive a party of the right to appeal to the referring court. See In re T.S., 191 S.W.3d 736, 740 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).
A party’s failure to request, or waiver of the right to request, a de novo hearing before the referring court does not deprive the party of the right to appeal or request other relief from the proper appellate court. Tex. Fam. Code § 201.016(a).
Pending a de novo hearing before the referring court, a proposed order or judgment of the associate judge is in full force and effect and is enforceable as an order or judgment of the referring court, except for an order providing for the appointment of a receiver. Except as provided by Texas Family Code section 201.007(c), if a request for a de novo hearing before the referring court is not timely filed, the proposed order or judgment of the associate judge becomes the order or judgment of the referring court only on the referring court’s signing the proposed order or judgment. An order by an associate judge for the temporary detention or incarceration of a witness or party shall be presented to the referring court on the day the witness or party is detained or incarcerated. If the referring court is not immediately available, the associate judge may order the release of the party or witness, with or without bond, pending a de novo hearing or may continue the person’s detention or incarceration for not more than seventy-two hours. Tex. Fam. Code § 201.013; see also Tex. Fam. Code § 201.007(c).
Associate judges appointed under Family Code chapter 201, subchapter A, have the judicial immunity of a district judge. Tex. Fam. Code § 201.017.
A petition in a divorce suit need not specify the underlying evidentiary facts if the petition alleges the grounds relied on substantially in the language of the statute. Allegations of grounds for relief, matters of defense, or facts relied on for a temporary order that are stated in short and plain terms are not subject to special exceptions because of form or sufficiency. The court shall strike an allegation of evidentiary fact from the pleadings on the motion of a party or on the court’s own motion. Tex. Fam. Code § 6.402. The Family Code does not address the pleading of ancillary litigation. Therefore, in suits involving tracing, reimbursement, corporate alter egos, enhancement of one estate by the other, wasting of marital assets, third-party claims, and like situations, the property rights asserted should be specifically pleaded.
If the parties are parents of a child not under the continuing jurisdiction of any other court under Family Code section 155.001, the divorce suit must include a suit affecting the parent-child relationship. Tex. Fam. Code § 6.406(b). The petition must state whether there are children born or adopted of the marriage who are under eighteen years of age or otherwise entitled to support under Family Code chapter 154. Tex. Fam. Code § 6.406(a). If the parties are the intended parents under a gestational agreement that is in effect and that establishes a parent-child relationship between the parties as intended parents and an unborn child on the birth of the child, the petition must state that the parties have entered into such a gestational agreement, whether the gestational mother is pregnant or a child who is the subject of the agreement has been born, and whether the agreement has been validated under Family Code section 160.756. Tex. Fam. Code § 6.406(a–1). The petition must include other information concerning the children that is described in Family Code section 102.008. See Tex. Fam. Code § 102.008. Unless each party resides in Texas, in a child custody proceeding, certain information must be presented to the court under oath in each party’s first pleading or by an attached affidavit, unless a party alleges in an affidavit or in a pleading under oath that the health, safety, or liberty of a party or child would be jeopardized. Tex. Fam. Code § 152.209(a), (e). See section 3.50 below concerning pleading requirements under the Uniform Child Custody Jurisdiction and Enforcement Act.
The first numbered paragraph of the petition must include an allegation of the intended discovery level. Tex. R. Civ. P. 190.1.
§ 3.8Protective Order Statement
A petition for divorce must state whether, in regard to a party to the suit or a child of a party to the suit, there is in effect a protective order under Family Code title 4, a protective order under subchapter A, chapter 7B, of the Code of Criminal Procedure, or an order for emergency protection under article 17.292 of the Code of Criminal Procedure. The petition also must state whether an application for any of these is pending. The petitioner must attach a copy of each such protective order in which a party to the suit or the child of a party to the suit was the applicant or victim of the conduct alleged in the application or order and the other party was the respondent or defendant of an action regarding the conduct alleged in the application or order without regard to the date of the order. If a copy of the order is not available at the time of filing, the petition must state that a copy will be filed with the court before any hearing. Tex. Fam. Code § 6.405.
Either party may file special exceptions directed at the other party’s pleadings. A special exception must not only point out the particular pleading excepted to but must also intelligibly and with particularity point out the defect, omission, obscurity, duplicity, generality, or other insufficiency. Tex. R. Civ. P. 91. The purpose of special exceptions is to furnish the adverse party a medium by which to force clarification of pleadings if they are not clear or sufficiently specific. Villarreal v. Martinez, 834 S.W.2d 450, 451 (Tex. App.—Corpus Christi–Edinburg 1992, no writ). Special exceptions should be filed, a hearing set, and a ruling obtained either that the petition is sufficient as it stands or that the language excepted to should be stricken. See Brooks v. Housing Authority of City of El Paso, 926 S.W.2d 316, 322 (Tex. App.—El Paso 1996, no writ).
If the trial court sustains special exceptions, it must give the pleader an opportunity to amend the pleading. If a party refuses to amend or the amended pleading fails to state a cause of action, summary judgment may be granted. Summary judgment may also be proper if a pleading deficiency is of the type that could not be cured by an amendment. Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998).
If there are no special exceptions filed to clarify a claim, a petitioner cannot later complain that a pleading is insufficient. See Steves Sash & Door Co. v. Ceco Corp., 751 S.W.2d 473, 476 (Tex. 1988). Failure to have special exceptions ruled on may be deemed a waiver of the defect in pleading. Tex. R. Civ. P. 90; see also Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 937 (Tex. 1992).
COMMENT: In divorce cases, special exceptions are appropriate if allegations such as fraud or alter ego are included in the pleadings or if the opposing party asserts specific property rights but does not clearly state what he will try to prove.
§ 3.10Notice of Nonsuit and Dismissal for Want of Prosecution
Nonsuit: Any time before the petitioner has introduced all his evidence other than rebuttal evidence, the petitioner may dismiss a case or take a nonsuit. Notice of the dismissal or nonsuit is to be served under rule 21a on any party who has answered or been served with process. Tex. R. Civ. P. 162. A nonsuit renders the merits of the nonsuited case moot. Villafani v. Trejo, 251 S.W.3d 466, 468–69 (Tex. 2008). While the date on which the trial court signs an order dismissing the suit is the starting point for determining when a trial court’s plenary power expires, a nonsuit is effective when it is filed. The trial court generally has no discretion to refuse to dismiss the suit, and its order doing so is ministerial. University of Texas Medical Branch at Galveston v. Estate of Blackmon, 195 S.W.3d 98, 100 (Tex. 2006) (per curiam). Costs are taxed against the dismissing party unless the court orders otherwise. Tex. R. Civ. P. 162.
The trial court, however, need not immediately dismiss the suit when notice of nonsuit is filed. Rule 162 states that the plaintiff's right to nonsuit “shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs taxed by the clerk,” and a dismissal “shall have no effect on any motion for sanctions, attorney’s fees or other costs, pending at the time of dismissal.” Tex. R. Civ. P. 162. Although plaintiffs have a right to nonsuit their claims and the trial court has no choice but to grant their nonsuit, plaintiffs do not have the absolute right to nonsuit someone else’s claims they are trying to avoid. Texas Mutual Insurance Co. v. Ledbetter, 251 S.W.3d 31, 37–38 (Tex. 2008). A claim for affirmative relief must allege a cause of action, independent of the plaintiff’s claim, on which the claimant could recover compensation or relief, even if the plaintiff abandons or is unable to establish his cause of action. University of Texas Medical Branch at Galveston, 195 S.W.3d at 101. A trial court’s power to decide a motion for sanctions pertaining to matters occurring before judgment is no different than its power to decide any other motion during its plenary jurisdiction. Thus, the time during which the trial court has authority to impose sanctions on such a motion is limited to when it retains plenary jurisdiction and is not limited by rule 162. Scott & White Memorial Hospital v. Schexnider, 940 S.W.2d 594, 596 (Tex. 1996) (per curiam). To that end, a trial court retains jurisdiction after a nonsuit and may delay signing an order of dismissal to address collateral matters, such as motions for sanctions, even when such motions are filed after the nonsuit. In re Bagheri, No. 05-18-00110-CV, 2018 WL 2126825, at *2 (Tex. App.—Dallas May 9, 2018, orig. proceeding) (mem. op.).
To qualify as a claim for affirmative relief, a defensive pleading must allege that the defendant has a cause of action, independent of the plaintiff’s claim, on which he could recover benefits, compensation, or relief, even though the plaintiff may abandon his cause of action or fail to establish it. If a defendant does nothing more than resist a plaintiff’s right to recover, the plaintiff has an absolute right to the nonsuit. General Land Office of Texas v. OXY U.S.A., Inc., 789 S.W.2d 569, 570 (Tex. 1990).
In an intervention for grandparent access under section 153.432 of the Texas Family Code, the appeals court found that the intervention is a request for independent affirmative relief and the intervenor becomes a party to the suit for all purposes. A nonsuit filed in the underlying suit does not prejudice the intervening party’s claim for affirmative relief. In re Schoelpple, No. 14-06-01038-CV, 2007 WL 431877 (Tex. App.—Houston [14th Dist.] Feb. 8, 2007, orig. proceeding) (mem. op.).
Want of Prosecution: A matter may be dismissed for want of prosecution. In reviewing a dismissal for want of prosecution the court applies an abuse of discretion standard. A trial judge may dismiss a case for want of prosecution under rule 165a of the Texas Rules of Civil Procedure for failure to appear or failure to comply with supreme court time standards. Abuse of discretion exists if a party has diligently attempted to respond to a trial court’s notice of dismissal and the court still dismisses the matter. A court’s not acting on an indigent inmate’s motion for appointment of counsel, for bench warrant, or to conduct the hearing by telephone conference or other means is an abuse of discretion. In re Marriage of Bolton, 256 S.W.3d 832 (Tex. App.—Dallas 2008, no pet.); Reese v. Reese, 256 S.W.3d 898 (Tex. App.—Dallas 2008, no pet.).
§ 3.11Respondent’s Pleadings Generally
In responding to or answering a divorce action, careful consideration should be given to jurisdictional matters. A special appearance is used to object to the exercise of in personam jurisdiction. Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998). The Uniform Child Custody Jurisdiction and Enforcement Act and the affirmative pleadings it requires, described at section 3.50 below, should be carefully reviewed before responding to any out-of-state jurisdictional actions.
The basic issue to be decided in filing a special appearance is whether, under the federal and state constitutions and applicable statutes and rules governing such proceedings, the court has in personam jurisdiction over the respondent.
The special appearance may be made by the respondent in person or by attorney. The basis for the special appearance is that “such party or property is not amenable to process issued by the courts of this State.” Tex. R. Civ. P. 120a(1). The special appearance must be made by a sworn motion filed before any other plea, including a motion to transfer venue, a pleading, an answer, a motion, or special exceptions to the petition. Tex. R. Civ. P. 120a(1). However, an unverified special appearance may be amended to cure the defect, even after the trial court has overruled it, as long as the amendment is filed before the defendant enters a general appearance. See Dawson-Austin v. Austin, 968 S.W.2d 319, 322–23 (Tex. 1998). Other pleadings may be contained in the same instrument or filed after the filing of a special appearance but not before. Tex. R. Civ. P. 120a(1). It is not necessary for the answer and other motions filed in the same instrument to contain “subject to” language. See Dawson-Austin, 968 S.W.2d at 323. Any motion to challenge the jurisdiction shall be heard and determined before a motion to transfer venue or any other plea or pleading may be heard. Tex. R. Civ. P. 120a(2). A defendant, however, does not waive his special appearance by using the discovery process to seek information pertaining to the merits of the case. Case v. Grammar, 31 S.W.3d 304, 311 (Tex. App.—San Antonio 2000, no pet.).
COMMENT: Every attempt should be made to negate all claims of jurisdiction of the court that are set out in the petitioner’s pleadings. For example, the special appearance should assert that the respondent is not a resident of the state of Texas and that the specific requirements of Family Code section 6.305 or 102.011 that were relied on by the petitioner are not satisfied. The special appearance should further assert that the assumption of jurisdiction over the respondent would offend the traditional notions of fair play and substantial justice and that the respondent has had insufficient contacts with Texas to warrant an assumption of jurisdiction.
The respondent has the burden of proof to show lack of amenability to long-arm process. Carbonit Houston, Inc. v. Exchange Bank, 628 S.W.2d 826, 829 (Tex. App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.). A hearing should be held on the special appearance and a ruling obtained on the special appearance. There is a conflict between courts of appeals on whether a failure to do so may be construed as a waiver of the jurisdictional challenge. Stegall & Stegall v. Cohn, 592 S.W.2d 427, 429–30 (Tex. App.—Fort Worth 1979, no writ) (failure to set hearing does not waive special appearance); Brown v. Brown, 520 S.W.2d 571, 575 (Tex. App.—Houston [14th Dist.] 1975, no writ) (under facts of case, defendant’s failure to set hearing on his special appearance and present facts construed as waiver of that special appearance).
The court shall determine the special appearance on the basis of the pleadings, any stipulations the parties make, any affidavits and attachments the parties file, discovery results, and any oral testimony. Any affidavits must be served at least seven days before the hearing, be made on personal knowledge, set forth specific facts that would be admissible in evidence, and show affirmatively that the affiant is competent to testify. If the opposing party shows by reasons stated in an affidavit that he cannot present by affidavit facts essential to justify his opposition, the court may order a continuance. Sanctions are to be imposed if affidavits are presented in violation of rule 13. Tex. R. Civ. P. 120a(3).
In a suit brought under the Family Code, an order overruling a special appearance is interlocutory and not appealable. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(7). Because section 51.014(a)(7) precludes interlocutory appeal, denial of a special appearance in a family law case is subject to mandamus review. Knight Corp. v. Knight, 367 S.W.3d 715, 723 (Tex. App.—Houston [14th Dist.] 2012, orig. proceeding); In re J.W.L., 291 S.W.3d 79, 83 (Tex. App.—Fort Worth 2009, orig. proceeding [mand. denied]). In non-family lawsuits, however—in which the order is appealable—a writ of mandamus will not issue for the trial court’s denial of a special appearance. Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex. 1994) (orig. proceeding); see also Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954, 955 (Tex. 1990) (orig. proceeding) (per curiam).
If the objection to jurisdiction is overruled, the respondent may thereafter appear generally for any purpose and present his defense to the case on the merits without waiver of the objection to jurisdiction. Tex. R. Civ. P. 120a(4). When a trial court rules on a special appearance, the losing party should request findings of fact. See Tex. R. Civ. P. 296; Goodenbour v. Goodenbour, 64 S.W.3d 69, 75 (Tex. App.—Austin 2001, pet. denied).
Forum non conveniens is an equitable doctrine exercised by the courts to resist the imposition of an inconvenient jurisdiction on a litigant, even if the court could exercise jurisdiction under the long-arm statute without a violation of due process. Sarieddine v. Moussa, 820 S.W.2d 837, 839 (Tex. App.—Dallas 1991, writ denied). Before a court may invoke the doctrine of forum non conveniens, however, the court must first find that it has jurisdiction over the defendant. Sarieddine, 820 S.W.2d at 840. A trial court may dismiss a case under the doctrine of forum non conveniens if it determines that, for the convenience of the litigants and witnesses and in the interest of justice, the action should be instituted in another forum that also has jurisdiction. Van Winkle-Hooker Co. v. Rice, 448 S.W.2d 824, 826 (Tex. App.—Dallas 1969, no writ). In determining whether to dismiss a case under the doctrine of forum non conveniens, a trial court must weigh a number of factors, including—
1.the private interest of the litigants;
2.the relative ease of access to the sources of proof needed;
3.the availability of compulsory process for the attendance of unwilling witnesses;
4.the costs of obtaining the attendance of willing witnesses; and
5.any other practical factors that make trial of a case easy, expeditious, and inexpensive.
Cole v. Lee, 435 S.W.2d 283, 285 (Tex. App.—Dallas 1968, writ dism’d) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507–08 (1947)).
There must be some evidence in the record that allows the trial court to balance the forum non conveniens factors and determine whether they weigh strongly in favor of trying the case in another forum. Unsubstantiated, conclusory allegations in a motion or in argument by counsel are insufficient. Lee v. Na, 198 S.W.3d 492, 495 (Tex. App.—Dallas 2006, no pet.).
If spouses separate and live in different counties for ninety days or more, either spouse may file suit for divorce in the county in which that spouse or the other spouse resides. See Tex. Fam. Code § 6.301. The court in which suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate courts. Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974). Any subsequent suit involving the same parties and the same controversy must be dismissed if a party to that suit calls the second court’s attention to the pendency of the prior suit by a plea in abatement. Curtis, 511 S.W.2d at 267. If the second court issues an order that actively interferes with the jurisdiction of the court with dominant jurisdiction, mandamus relief is available. In re Benavides, No. 04-14-00718-CV, 2014 WL 6979438 (Tex. App.—San Antonio Dec. 10, 2014, orig. proceeding) (mem. op.). As long as the forum is a proper one, it is the petitioner’s privilege to choose the forum. The respondent is simply not at liberty to decline to do battle in the forum chosen by the petitioner. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988).
Grounds: Pleas in abatement used in divorce cases are normally based on one of two grounds: (1) that neither the petitioner nor the respondent has met the residency and domicile requirements or (2) that prior proceedings are pending in another court, involving the same parties, as well as additional similar matters that may be appropriate. Abatement of a lawsuit due to the pendency of a prior suit is based on the principles of comity, convenience, and the necessity for orderly procedures in the trial of contested issues. The plea in abatement must be raised in a timely manner or it is waived. There are three exceptions to the general rule that the court in which a suit is first filed acquires dominant jurisdiction: (1) conduct that estops a party from asserting prior active jurisdiction, (2) lack of persons to be joined if feasible or the power to bring them before the court, and (3) lack of intent to prosecute the first lawsuit. Wyatt, 760 S.W.2d at 248.
Pleading: The plea in abatement should contain both pertinent facts and conclusions of law regarding the “dominant” jurisdiction of a particular court for a plea on that ground to be successful. The plea must give adequate notice to the petitioner about the exact facts as well as any conclusions of law relied on by the movant in the plea. The plea itself must state sufficient facts to indicate to the court why the pending action should be abated. The plea should also suggest the correct manner in which the petitioner should have proceeded to obtain a hearing on his cause of action. Bryce v. Corpus Christi Area Convention & Tourist Bureau, 569 S.W.2d 496, 499 (Tex. App.—Corpus Christi–Edinburg 1978, writ ref’d n.r.e.). A dominant jurisdiction complaint must be timely asserted and proven by a plea in abatement, or it is waived. Wyatt, 760 S.W.2d at 248.
The plea in abatement must be verified. Sparks v. Bolton, 335 S.W.2d 780, 785 (Tex. App.—Dallas 1960, no writ); see also Tex. R. Civ. P. 93(3).
Presentation of Plea and Evidence: The movant in the plea in abatement must present the plea to the court no later than the commencement of the trial or the plea is considered waived. The movant must present evidence to support the plea in abatement, and an affidavit or verified plea will not, by itself, support the plea. Continental Oil Co. v. P.P.G. Industries, 504 S.W.2d 616, 621–22 (Tex. App.—Houston [1st Dist.] 1973, writ ref’d n.r.e.).
If Plea Is Overruled: The Texas Supreme Court has held that, if the second court refuses to sustain a proper plea in abatement or attempts to interfere with the prior action, such refusal or interference may be challenged by mandamus or other appropriate writ to settle the conflict of jurisdiction. Curtis, 511 S.W.2d at 267; see also Dallas Fire Insurance Co. v. Davis, 893 S.W.2d 288, 291–92 (Tex. App.—Fort Worth 1995, orig. proceeding). The supreme court has also held that a trial court’s ruling on a plea in abatement is not subject to mandamus. See Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985) (orig. proceeding). The distinction made between these cases is that in Curtis, one of the courts had enjoined the other court from proceeding. Abor, 695 S.W.2d at 567. A general review of the case law indicates that under most fact situations a challenge of the trial court’s ruling by mandamus will not be proper.
Defenses: The three defenses to a plea in abatement are—
1.fraud and deceit based on conduct of a party that would stop him or her from asserting the “dominant” jurisdiction of a court in which the suit was first filed;
2.the defense of bad faith; and
3.that the court did not have “dominant” jurisdiction, because at the time of the filing of the first suit the requirements of Family Code section 6.301 were not met and the later court had actually acquired “dominant” jurisdiction by being the first court with jurisdiction under section 6.301.
See Johnson v. Avery, 414 S.W.2d 441, 443 (Tex. 1966); In re Marriage of Parr, 543 S.W.2d 433, 434 (Tex. App.—Corpus Christi–Edinburg 1976, no writ); see also Wyatt, 760 S.W.2d at 248.
Estoppel: A party who files a counterpetition seeking affirmative relief is estopped from asserting that the county in which he had first filed has dominant jurisdiction. Bonacci v. Bonacci, 420 S.W.3d 294 (Tex. App.—El Paso 2013, pet. denied), cert. denied, 135 S. Ct. 678 (2014).
The respondent shall file an answer to the proceedings. A general denial is sufficient to deny pleadings not required to be denied under oath. Tex. R. Civ. P. 92. The answer need not be made on oath or by verified petition. Tex. Fam. Code § 6.403.
Defense to Divorce Action: A request for divorce based on insupportability may be granted on the request of either party. Tex. Fam. Code § 6.001. It was the intent of the legislature to make a decree of divorce mandatory when a party to the marriage alleges insupportability and establishes the statutory elements, regardless of who is at fault. Phillips v. Phillips, 75 S.W.3d 564, 572 (Tex. App.—Beaumont 2002, no pet.). The defenses to a suit for divorce of recrimination and adultery are abolished. Tex. Fam. Code § 6.008(a). Condonation is a defense to a suit for divorce only if the court finds that there is a reasonable expectation of reconciliation. Tex. Fam. Code § 6.008(b). Condonation is an affirmative defense that must be specially pleaded. Ferguson v. Ferguson, 610 S.W.2d 559, 560 (Tex. App.—Beaumont 1980, no writ).
Denial of Paternity: A presumed father of a child may sign a denial of his paternity. The denial is valid only if (1) an acknowledgment of paternity signed or otherwise authenticated by another man is filed under section 160.305 of the Family Code; (2) the denial is in a record and is signed or otherwise authenticated under penalty of perjury; and (3) the presumed father has not previously acknowledged paternity of the child, unless the previous acknowledgment has been rescinded under section 160.307 or successfully challenged under section 160.308, or been adjudicated to be the father of the child. Tex. Fam. Code § 160.303. The issue of paternity is addressed in chapter 54 of this manual.
Affirmative Defense: An affirmative defense does not seek to defend by merely denying the opposing party’s claims, but rather seeks to establish an independent reason why the other party should not recover. Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 212 (Tex. 1996). A respondent or counterrespondent has the duty to plead and request jury instructions on an affirmative defense. Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473, 481 (Tex. 2001). Specific affirmative defenses are set out in rule 94 of the Texas Rules of Civil Procedure and include estoppel, fraud, laches, payment, release, res judicata, statute of frauds, statute of limitations, and waiver. See Tex. R. Civ. P. 94. In addition to these specific affirmative defenses, rule 94 also states that “a party shall set forth affirmatively . . . any other matter constituting an avoidance or affirmative defense.”
Verified Defense: Certain pleadings must be verified unless the truth of those matters appears of record. These verified pleadings are listed in rule 93 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 93. They include any other matter required by statute to be pleaded under oath. Tex. R. Civ. P. 93(16).
Compulsory Joinder: A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant or, in a proper case, an involuntary plaintiff. Tex. R. Civ. P. 39(a).
If such a person cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include the following: first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or to those already parties; second, the extent to which by protective provisions in the judgment, by the shaping of relief, or by other measures the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; and fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. Tex. R. Civ. P. 39(b).
A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in rule 39(a) who are not joined and the reasons why they are not joined. Tex. R. Civ. P. 39(c).
COMMENT: If a nonparty, such as a parent of a spouse, owns an interest in real or personal property in which the spouses have an interest, it may be necessary to join the nonparty to the divorce suit in order to divide the spouses’ interests. See Walsh v. Walsh, 255 S.W.2d 240, 243 (Tex. App.—Amarillo 1952, no writ).
Permissive Joinder: All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief and against one or more defendants according to their respective liabilities. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom he asserts no claim and who asserts no claim against him and may order separate trials or make other orders to prevent delay or prejudice. Tex. R. Civ. P. 40.
Compulsory Counterclaim: The compulsory counterclaim rule is designed to avoid piecemeal or duplicative litigation. Its purpose is to provide that a potential counterclaimant with a justiciable interest arising out of the same transaction or occurrence at issue in the opposing party’s claim bring the counterclaim in the same proceeding, or it will be deemed waived. The “compelling interest” underlying the compulsory counterclaim rule is solely in judicial economy; its purpose is to prevent multiple suits arising out of the same transactions or occurrences. Bard v. Charles R. Myers Insurance Agency, 839 S.W.2d 791, 796 (Tex. 1992).
A pleading shall state as a counterclaim any claim within the jurisdiction of the court not the subject of a pending action that at the time of filing the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Tex. R. Civ. P. 97(a). A claim meeting the requirements of rule 97(a) must be asserted in the initial action and cannot be asserted in later actions. Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 207 (Tex. 1999). A counterclaim is compulsory if, in addition to rule 97(a)’s other requirements, it was not the subject of a pending action when the original suit was commenced. In re J.B. Hunt Transport, Inc., 492 S.W.3d 287, 293 (Tex. 2016) (orig. proceeding). However, a judgment based on a settlement or compromise of a claim of one party to the transaction or occurrence before a disposition on the merits shall not operate as a bar to the continuation or assertion of the claims of any other party to the transaction or occurrence unless the latter has consented in writing that the judgment shall operate as a bar. Tex. R. Civ. P. 97(a).
Permissive Counterclaim: A pleading may state as a counterclaim any claim against an opposing party whether or not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim. Tex. R. Civ. P. 97(b).
A claim that either matured or was acquired by the pleader after filing his pleading may be presented as a counterclaim by amended pleading. Tex. R. Civ. P. 97(d).
Torts: The issue of torts is addressed in part V. below.
Stay for Military Service: A stay may be granted under certain circumstances to a party who is in military service or has separated from service within ninety days. See the discussion at section 19.4 in this manual.
§ 3.15Inmate’s Participation at Trial
Although an inmate does not have an absolute right to appear personally in court in civil proceedings, he cannot be denied access to the courts simply because he is incarcerated. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). The right of a prisoner to have access to the court entails not so much his personal presence as the opportunity to present evidence or contradict the evidence of the opposing party. In re R.C.R., 230 S.W.3d 423, 426 (Tex. App.—Fort Worth 2007, no pet.). When the trial judge determines an inmate should not be allowed to appear personally, the inmate should be allowed to proceed by affidavit, deposition, telephone, or other effective means. In re Marriage of Bolton, 256 S.W.3d 832 (Tex. App.—Dallas 2008, no pet.). A trial court abuses its discretion if it effectively bars the inmate from presenting his case. Gamboa v. Alecio, 604 S.W.3d 513, 516 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (trial court abused its discretion and “essentially closed the court’s doors to [inmate spouse]” in dismissing divorce action for want of prosecution when inmate spouse had requested to appear telephonically through affidavit, provided proper phone number, and provided proposed divorce decree); Armstrong v. Randle, 881 S.W.2d 53, 57 (Tex. App.—Texarkana 1994, writ denied). In order to attend trial, the inmate must request a bench warrant. Texas courts consider a number of factors when ruling on a motion for a bench warrant, including (1) the cost and inconvenience of transporting the inmate to the courtroom; (2) the security risk the inmate presents to the court and the public; (3) whether the inmate’s claims are substantial; (4) whether the matter’s resolution can reasonably be delayed until the inmate’s release; (5) whether the inmate can and will offer admissible, noncumulative testimony that cannot be effectively presented by deposition, telephone, or some other means; (6) whether the inmate’s presence is important in judging his demeanor and credibility; (7) whether the trial is to the court or a jury; and (8) the inmate’s probability of success on the merits. See In re Z.L.T., 124 S.W.3d 163; In re A.W., 302 S.W.3d 925, 929 (Tex. App.—Dallas 2010, no pet.).
A standing order is a court order or set of rules that automatically takes effect when a divorce action or suit affecting the parent-child relationship is filed. Most large counties, with the exception of Harris and Tarrant counties, have implemented standing orders to protect the parties and children and to prevent the dissipation of the marital estate while the divorce is pending. Most courts with standing orders require that a copy be attached to the original petition for divorce. A standing order is effective until the court enters an order that either changes the standing order or eliminates it. The entry of a divorce decree will ordinarily suspend operation of the standing order.
Temporary orders are discussed in chapter 4 of this manual.
[Sections 3.18 through 3.20 are reserved for expansion.]
The Family Code assigns the divorce-ground determination to the discretion of the trial court. Portillo v. Portillo, No. 02-14-00124-CV, 2016 WL 1601113, at *4 (Tex. App.—Fort Worth Apr. 21, 2016, no pet.) (mem. op.). The court may grant a divorce on any of three no-fault grounds: insupportability (Tex. Fam. Code § 6.001), the spouses’ living apart for three years (Tex. Fam. Code § 6.006), and the respondent’s confinement in a mental hospital for three years (Tex. Fam. Code § 6.007). When insupportability is relied on as a ground for divorce by the complaining spouse and that ground is established by the evidence, a divorce must be granted the complaining party, without regard as to whether either, both, or neither of the parties is responsible for or caused the insupportability. It is not incumbent on the plaintiff who brings the divorce action on the ground of insupportability to show any misconduct on the defendant’s part; it is incumbent on that spouse only to establish by the evidence that a state of insupportability exists regardless of whether it is anyone’s or no one’s fault. Phillips v. Phillips, 75 S.W.3d 564, 571 (Tex. App.—Beaumont 2002, no pet.).
Efforts to prevent a court from granting a divorce on religious grounds have not been successful. A trial court has subject-matter jurisdiction to dissolve a Christian marriage. Regardless of how a couple views their union—whether they see it primarily as religious or secular—the state governs all legal aspects of the union. Waite v. Waite, 150 S.W.3d 797, 802 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). The U.S. Supreme Court’s opinion in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), does not either directly or by implication recognize what would effectively be an affirmative constitutional right of one spouse to compel an unwilling other spouse to remain married, in derogation of both the other spouse’s liberty and state divorce laws. Lecuona v. Lecuona, No. 03-17-00138-CV, 2018 WL 2994587, at *1 (Tex. App.—Austin June 15, 2018, pet. denied) (mem. op.).
A divorce may be granted on any of these fault grounds: cruelty (Tex. Fam. Code § 6.002), adultery (Tex. Fam. Code § 6.003), the respondent’s conviction of a felony (Tex. Fam. Code § 6.004), and the respondent’s abandonment of the petitioner for one year (Tex. Fam. Code § 6.005).
Adultery means the “voluntary sexual intercourse of a married person with one not the spouse.” Adultery is not limited to actions committed before separation and may be established by circumstantial evidence. However, there must be clear and positive proof, and mere suggestion and innuendo are insufficient. In re Marriage of C.A.S. & D.P.S., 405 S.W.3d 373, 383 (Tex. App.—Dallas 2013, no pet.). Even if there is evidence of an extramarital affair, the court does not abuse its discretion by not instead finding, or by not additionally finding, adultery as a ground for the divorce. Portillo, 2016 WL 1601113, at *4.
Cruel treatment as a ground for divorce must render the couple’s living together insupportable, meaning incapable of being borne, unendurable, insufferable, or intolerable. Kemp v. Kemp, No. 11-11-00292-CV, 2013 WL 5891583, at *3 (Tex. App.—Eastland Oct. 31, 2013, no pet.) (mem. op.).
Even if fault has not been pleaded as a ground for divorce, factual or evidentiary matters that embrace issues that would support cruelty, adultery, or other fault-related issues may be introduced to support a request for a disproportionate division of property. See Murff v. Murff, 615 S.W.2d 696, 698–99 (Tex. 1981) (list of factors court may consider in making division); see also Young v. Young, 609 S.W.2d 758, 761–62 (Tex. 1980); In re Marriage of Brown, 187 S.W.3d 143, 146 (Tex. App.—Waco 2006, no pet.) (though divorce granted on no-fault ground, trial court should have discretion to consider proven fault in break-up of marriage when making just and right division of community estate). But see Phillips, 75 S.W.3d at 572 (when dissolution of marriage sought solely on ground of insupportability, evidence of “fault” becomes irrelevant as analytical construct and may not be considered by trial court in its “just and right” division of community estate).
See section 3.14 above on the respondent’s pleadings regarding defenses.
Residence requirements are met if either the petitioner or the respondent has been a domiciliary of Texas for the six months and a resident of the county of suit for the ninety days preceding the filing of the petition. Tex. Fam. Code § 6.301. Mere ownership of real property without physical presence or other significant connection to Texas will not satisfy the residency requirement. In re Marriage of Lai, 333 S.W.3d 645 (Tex. App.—Dallas 2009, no pet.). However, a petitioner does not lose the right to maintain a divorce suit in his county of residence if he has been temporarily absent from the county during the ninety-day period. Posey v. Posey, 561 S.W.2d 602, 605 (Tex. App.—Waco 1978, writ dism’d).
A domiciliary does not lose his domicile if he is absent from Texas for military service or other public service of the state or nation or while accompanying his spouse who is on such service. Tex. Fam. Code § 6.303. Although a military husband who had designated Texas as his residence and his family, who last resided in Bexar County, Texas, before his assignment to Germany, were stationed in Germany for a number of years at the time the husband filed for divorce in Bexar County, the husband was considered to be domiciled in Texas under section 6.303. Vatcher v. Vatcher, No. 04-12-00821-CV, 2014 WL 60917, at *2 (Tex. App.—San Antonio Jan. 8, 2014, no pet.) (mem. op.). One not previously a resident of Texas who is serving in the armed forces of the United States and has been stationed at one or more military installations in Texas for at least the last six months and at a military installation in a Texas county for at least the last ninety days, or who is accompanying his spouse during the spouse’s military service in those locations and for those periods, is considered to have been a domiciliary of Texas and a resident of the county for those periods for the purpose of bringing a divorce suit. Tex. Fam. Code § 6.304. However, a military husband did not become a domiciliary of Texas while he was temporarily stationed in San Antonio for military training but never returned to Texas despite wife’s claims that he changed his residence to Texas on military documents and that he intended to return to Texas once he retired. Mere intent to return is insufficient without an accompanying act to demonstrate that intent. In re Green, 385 S.W.3d 665, 670 (Tex. App.—San Antonio 2012, orig. proceeding).
If one spouse has been a domiciliary of Texas for at least the last six months, a spouse domiciled in another state or nation may file a suit for divorce in the Texas county in which the other spouse resides at the time the petition is filed. Tex. Fam. Code § 6.302.
Residence requirements are not jurisdictional. Wilson v. Wilson, 494 S.W.2d 609, 611 (Tex. App.—Houston [14th Dist.] 1973, writ dism’d); Allen v. Allen, 397 S.W.2d 99, 100 (Tex. App.—Amarillo 1965, no writ). A plea in abatement is the proper vehicle through which a failure to meet residency requirements should be attacked. Harrison v. Harrison, 543 S.W.2d 176, 177 (Tex. App.—Houston [14th Dist.] 1976, no writ); Lutes v. Lutes, 538 S.W.2d 256, 258 (Tex. App.—Houston [14th Dist.] 1976, no writ). On sustaining a plea in abatement on such grounds, the court should retain the case on the docket until the residency requirements are met rather than dismissing the case. Svensen v. Svensen, 629 S.W.2d 97, 98 (Tex. App.—Dallas 1981, no writ); Beavers v. Beavers, 545 S.W.2d 29, 30 (Tex. App.—Waco 1976, no writ). Judicial admission of residence and domicile in a divorce petition prevents a party from challenging the evidence as insufficient to show that residency requirements have been satisfied. McCaskill v. McCaskill, 761 S.W.2d 470, 473 (Tex. App.—Corpus Christi–Edinburg 1988, writ denied).
Although the residence requirement is not jurisdictional, the residency and domiciliary requirements must be met before the court is authorized to grant a divorce. Skubal v. Skubal, 584 S.W.2d 45, 46 (Tex. App.—San Antonio 1979, writ dism’d); Schreiner v. Schreiner, 502 S.W.2d 840, 843 (Tex. App.—San Antonio 1973, writ dism’d). The elements of the legal concept of domicile are (1) an actual residence and (2) the intent to make it the permanent home. Snyder v. Pitts, 241 S.W.2d 136, 139 (Tex. 1951) (orig. proceeding). To establish domicile there must be more than mere physical presence in a particular place; there must be an intention to establish a permanent home. Skubal, 584 S.W.2d at 46.
Although domicile and residence are frequently used as if they had the same meaning, they are not identical terms and are not synonymous. “Residence” may be defined as the act or fact of living in a given place for some time. It is the place where one actually lives. Usually, residence just means bodily presence as an inhabitant in a given place, whereas domicile usually requires bodily presence plus an intention to make the place one’s home. A person may have more than one residence at a time but only one domicile. Black’s Law Dictionary 1502 (10th ed. 2014); see also Stone v. Phillips, 171 S.W.2d 156, 159 (Tex. App.—Amarillo 1943), aff’d, 176 S.W.2d 932 (Tex. 1944). Residence requires that a person be living and physically present in a particular locality, but domicile requires that a person live in that locality with the intention of making it a fixed, permanent home. Nieto v. Nieto, No. 04-11-00807-CV, 2013 WL 1850780 (Tex. App.—San Antonio May 1, 2013, pet. denied) (mem. op.) (trial court did not abuse its discretion in finding that parties, both Mexican nationals on investment visas, resided in Bexar County, Texas, for at least six months before filing for divorce and owned the marital residence and conducted business in San Antonio, Texas). Domicile and residence are not convertible terms. Domicile is a larger term, of more extensive significance, whereas residence is of a more temporary character. Stone, 171 S.W.2d at 159.
With one exception, discussed in the next paragraph, the court may not grant a divorce before the sixtieth day after the date the suit is filed, but a decree entered in violation of this provision is not subject to collateral attack. Tex. Fam. Code § 6.702(a). A counterpetition shares the same waiting period as the petition. See Coast v. Coast, 135 S.W.2d 790, 793 (Tex. App.—El Paso 1939, no writ).
The waiting period is not required if the court finds that the respondent has been finally convicted of, or received deferred adjudication for, an offense involving family violence against the petitioner or a member of the petitioner’s household or if the petitioner has an active protective order or magistrate’s order for emergency protection based on a finding of family violence against the respondent because of family violence committed during the marriage. Tex. Fam. Code § 6.702(c).
Generally, neither party to a divorce may marry a third party before the thirty-first day after the date the divorce is decreed. Tex. Fam. Code § 6.801(a). Although a written decree is not signed until later, a divorce is fully effective for all purposes, except calculation of times for appeal, at the time the trial court makes a noninterlocutory oral pronouncement of judgment of divorce. Thus, the thirty-day waiting period during which divorced spouses are prohibited from entering into a new marriage runs from the date of noninterlocutory oral pronouncement. Herschberg v. Herschberg, 994 S.W.2d 273, 276 (Tex. App.—Corpus Christi–Edinburg 1999, pet. denied).
The court may waive the prohibition against remarriage for either or both spouses if a record of the proceedings is made and preserved or if findings of fact and conclusions of law are filed by the court. Tex. Fam. Code § 6.802. The former spouses may remarry each other at any time. Tex. Fam. Code § 6.801(b).
In a divorce decree, the court must change the name of a party specifically requesting the change to a name previously used by the party unless the court states in the decree a reason for denying the name change. The court may not deny the name change solely to keep last names of family members the same. A change of name does not release a person from liability incurred by the person under a previous name or defeat a right the person held under a previous name. Tex. Fam. Code § 6.706. To change a name in conjunction with a divorce to a name not previously used by the party, a party must follow the requirements and procedures set out in Family Code chapter 45. See section 61.3 in this manual.
A person whose name has been changed in a suit for divorce may apply for a change-of-name certificate from the clerk of the court as provided in Family Code section 45.106. Tex. Fam. Code §§ 6.706(d), 45.105(b); see also Tex. Fam. Code § 45.106. The certificate under section 45.106 constitutes proof of the change of name. Tex. Fam. Code § 45.106(d).
Texas courts may order spousal maintenance at the time of divorce only if the spouse seeking maintenance will lack sufficient property, including his separate property, on dissolution of the marriage to provide for his minimum reasonable needs and if certain other conditions are met. See section 23.9 in this manual for a discussion of spousal maintenance.
In Texas, to prove the existence of an informal marriage (more frequently called a common-law marriage), the proponent must establish by a preponderance of the evidence either (1) that a declaration of their marriage has been signed as provided by Family Code chapter 2, subchapter E, or (2) that the parties agreed to be married and thereafter lived together in Texas as spouses and represented to others in Texas that they were married. Bolash v. Heid, 733 S.W.2d 698, 699 (Tex. App.—San Antonio 1987, no writ); Tex. Fam. Code § 2.401(a). The existence of a common-law marriage is a fact question with the burden of proof on the person seeking to establish existence of the marriage by a preponderance of the evidence. See Weaver v. State, 855 S.W.2d 116, 120 (Tex. App.—Houston [14th Dist.] 1993, no pet.); Hightower v. State, 629 S.W.2d 920, 924 (Tex. Crim. App. 1981).
A common-law divorce is unknown to Texas law. The marriage arises out of the state of facts. Once the common-law status exists, it, like any other marriage, may be terminated only by death or a court decree. Once the marriage exists, the spouses’ subsequent denials of the marriage, if disbelieved, do not undo the marriage. Estate of Claveria v. Claveria, 615 S.W.2d 164, 167 (Tex. 1981).
An agreement to create a common-law marriage must be specific and mutual. Estate of Sinatra v. Sinatra, No. 13-14-00565-CV, 2016 WL 4040290, at *2 (Tex. App.—Corpus Christi–Edinburg July 28, 2016, pet. denied) (mem. op.). There must be evidence that the parties intended to have a present, immediate, and permanent marital relationship and that they did in fact agree to be spouses. In other words, the agreement to be married must be a present agreement and not a future agreement. Aguilar v. State, 715 S.W.2d 645, 648 (Tex. Crim. App. 1986) (en banc); see also Leal v. Moreno, 733 S.W.2d 322, 323 (Tex. App.—Corpus Christi–Edinburg 1987, no writ). Until all elements of the statute are met, there is no common-law or informal marriage. Bolash, 733 S.W.2d at 699; see also Flores v. Flores, 847 S.W.2d 648, 650 (Tex. App.—Waco 1993, writ denied) (per curiam).
An agreement to be informally married, like any ultimate fact, may be established by direct or circumstantial evidence. Evidence of holding out must be particularly convincing to be probative of an agreement to be married. Occasional informal references to another as their spouse will not prove an agreement to be married. Circumstantial evidence can entirely fail to overcome direct evidence from both members of the alleged marriage that there is no agreement to be married. Assoun v. Gustafson, 493 S.W.3d 156, 160 (Tex. App.—Dallas 2016, pet. denied). Raising a family together may be evidence of an agreement to be married. See Brooks v. Hancock, 256 S.W. 296, 297 (Tex. App.—Texarkana 1923, no writ). Establishment of joint charge accounts naming the parties as spouses may also be evidence that the parties agreed to be married. See Rosales v. Rosales, 377 S.W.2d 661, 664 (Tex. App.—Corpus Christi–Edinburg 1964, no writ). The filing of joint tax returns is also considered evidence that the parties were married. Day v. Day, 421 S.W.2d 703, 705 (Tex. App.—Austin 1967, no writ). Another widely accepted situation that constitutes legally sufficient evidence of an informal marriage is the joint acquisition of property or the signing of secured transactions between the litigants. See Rodriguez v. Avalos, 567 S.W.2d 85, 86–87 (Tex. App.—El Paso 1978, no writ).
Representations made to governmental entities regarding marital status do not estop a party from later claiming in an unrelated suit the existence or nonexistence of an informal marriage, but trial courts may properly consider such representations as evidence either supporting or refuting a claim of informal marriage. Leyendecker v. Uribe, No. 04-17-00163-CV, 2018 WL 442724, at *5 (Tex. App.—San Antonio Jan. 17, 2018, pet. denied) (mem. op.). Similarly, evidence of a joint tax return for only one year of an eleven-year relationship was insufficient to establish an informal marriage. In re N.A.F., No. 05-17-00470-CV, 2019 WL 516715, at *5 (Tex. App.—Dallas Feb. 11, 2019, no pet.) (mem. op.).
A finding of no informal marriage was affirmed when one party controverted the other’s circumstantial evidence pertaining to an agreement to be married and there was no direct evidence that the parties had actually agreed to be married. Burden v. Burden, 420 S.W.3d 305, 308–09 (Tex. App.—Texarkana 2013, no pet.). However, in another case, no informal marriage was found even though the wife was identified as the husband’s spouse on their joint car insurance and on the husband’s life insurance policies. Castillon v. Morgan, No. 05-13-00872-CV, 2015 WL 1650782 (Tex. App.—Dallas Apr. 14, 2015, no pet.) (mem. op.).
The statutory requirement of “represented to others” is synonymous with the judicial requirement of “holding out to the public.” “Holding out” may be established by the conduct and actions of the parties. Spoken words are not necessary to establish representation to others. Eris v. Phares, 39 S.W.3d 708, 714–15 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). An occasional reference to a cohabitant as that person’s spouse, standing alone, will not substantiate or prove a tacit agreement to be married without corroborative evidence. Russell v. Russell, 865 S.W.2d 929, 932 (Tex. 1993). A couple must have a reputation in the general community of being married. Small v. McMaster, 352 S.W.3d 280, 285 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). An occasional introduction as spouses does not establish the element of holding out. Winfield v. Renfro, 821 S.W.2d 640, 651 (Tex. App.—Houston [1st Dist.] 1991, writ denied). By contrast, where the parties lived together almost thirty years, they had three children, and numerous witnesses testified that they held themselves out as married and wife never corrected husband when he introduced her as his wife, the evidence supported a finding of informal marriage. In re A.D.J., No. 05-17-01437-CV, 2019 WL 1467962, at *5–6 (Tex. App.—Dallas Apr. 3, 2019, no pet.) (mem. op.).
A common-law marriage is more than a contract; it is a public status. Winfield, 821 S.W.2d at 650.
A claim of informal marriage must be brought before the second anniversary of the date on which the parties separated and ceased living together or it is rebuttably presumed that the parties did not enter into an agreement to be married. Tex. Fam. Code § 2.401(b).
A putative marriage is one that was entered into in good faith by at least one of the parties but that is invalid by reason of an existing impediment on the part of one or both parties. Garduno v. Garduno, 760 S.W.2d 735, 738 (Tex. App.—Corpus Christi–Edinburg 1988, no writ); Dean v. Goldwire, 480 S.W.2d 494, 496 (Tex. App.—Waco 1972, writ ref’d n.r.e.). A putative marriage may arise out of either a ceremonial or informal marriage. Garduno, 760 S.W.2d at 738. The effect of a putative marriage is to give the putative spouse who acted in good faith the same right in property acquired during the marital relationship as if he were a lawful spouse. Davis v. Davis, 521 S.W.2d 603, 606 (Tex. 1975). However, there being no legally recognized marriage, property acquired during a putative marriage is not community property, but jointly owned separate property. Garduno, 760 S.W.2d at 739; see also Mathews v. Mathews, 292 S.W.2d 662, 665 (Tex. App.—Galveston 1956, no writ). Texas recognizes these rights for putative marriage in order to administer equity to those individuals who had a good-faith belief that they were lawfully married. See Cameron v. Cameron, 103 S.W.2d 464 (Tex. App.—Galveston 1937, writ ref’d).
When a legally married couple gets divorced, the Family Code gives the court the discretion to “order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” Tex. Fam. Code § 7.001. Although statutes that relate to the division of property do not expressly state that they are applicable to void marriages, it has been consistently held that this right to a just and right division of property also applies to putative marriages. See Davis, 521 S.W.2d at 606; Garduno, 760 S.W.2d at 739; Padon v. Padon, 670 S.W.2d 354, 356 (Tex. App.—San Antonio 1984, no writ); Dean, 480 S.W.2d at 496. Accordingly, a husband was not allowed to withdraw his consent to a mediated settlement agreement when the trial court impliedly found the wife was a putative spouse and they were not in a meretricious relationship. Davis v. Davis, No. 01-12-00701-CV, 2014 WL 890899, at *6–8 (Tex. App.—Houston [1st Dist.] Mar. 6, 2014, no pet.) (mem. op.).
If the relationship is merely meretricious, however, neither one of the individuals has a good-faith belief that they are entering into a marital relationship; therefore, there is no innocent party in need of equitable protection under the law. Thus, when a meretricious relationship ends, a party has an interest in only the property that he separately purchased and acquired an interest in through an express trust, a resulting trust, or the existence of a partnership. See Faglie v. Williams, 569 S.W.2d 557, 566 (Tex. App.—Austin 1978, writ ref’d n.r.e.); Hyman v. Hyman, 275 S.W.2d 149, 151 (Tex. App.—Amarillo 1954, writ ref’d n.r.e.); see also Hayworth v. Williams, 102 Tex. 308, 116 S.W. 43, 46 (1909). In all other situations, the courts have refused to award anything to a pretended wife, who knows the nature of the relationship in which she is involved. See Lawson v. Lawson, 30 Tex. App. 43, 69 S.W. 246, 247 (1902, writ ref’d). Normally, in meretricious relationships, “the courts will leave the parties as they find them, on the same principle that they refuse to enforce any other contract which by reason of its objects, or the nature of the consideration upon which it rests, is violative of law or against public policy.” Lawson, 69 S.W. at 247; see also Meador v. Ivy, 390 S.W.2d 391, 394 (Tex. App.—San Antonio 1965, no writ).
When two or more marriages of a person to different spouses are alleged, the presumption is that the most recent marriage is valid; the one asserting the validity of a prior marriage must prove its validity. Tex. Fam. Code § 1.102; see In re A.M., 418 S.W.3d 830, 842–43 (Tex. App.—Dallas 2013, no pet.) (husband unable to overcome presumption of validity of his marriage when wife provided Pakistani divorce decree signed by her prior husband).
[Section 3.30 is reserved for expansion.]
Warning: The division of marital property may have serious tax consequences. Tax advice should be sought. See also the practice notes concerning tax considerations in chapter 23 of this manual.
§ 3.31General Rule of Property Division
In a divorce decree, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage. Tex. Fam. Code § 7.001. A trial court has wide discretion in dividing the estate of the parties, and that division should be corrected on appeal only when an abuse of discretion has been shown. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981). The community property of the marital estate need not be equally divided. Murff, 615 S.W.2d at 699. If a trial court chooses to divide the marital estate unequally, there must be some reasonable basis for doing so. Howe v. Howe, 551 S.W.3d 236, 253 (Tex. App.—El Paso 2018, no pet.). The trial court may consider such factors as the spouses’ capacities and abilities, benefits that the party not at fault would have derived from continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of separate estates, and the nature of the property. Murff, 615 S.W.2d at 699.
In deciding whether an unequal distribution is appropriate, a trial court can consider a spouse’s fault in causing the divorce. But while fault may be considered in the property division, “[t]his does not mean that fault must be considered in all cases where a divorce is granted on fault grounds.” A trial court is prohibited from using a spouse’s fault and the property division to punish the errant spouse for his misdeeds. Young v. Young, 609 S.W.2d 758, 762 (Tex. 1980).
A court may award one spouse an unequal division of the community estate based on the size of the spouses’ separate estates. See Mathis v. Mathis, No. 12-17-00049-CV, 2018 WL 1324777, at *3 (Tex. App.—Tyler Mar. 15, 2018, no pet.) (mem. op.).
In a divorce case, a trial court may award attorney’s fees as part of a just and right division of the marital estate. Mandell v. Mandell, 310 S.W.3d 531, 541 (Tex. App.—Fort Worth 2010, pet. denied). In a suit for dissolution of a marriage, the court also has statutory authority for awarding costs, reasonable attorney’s fees, and expenses. Tex. Fam. Code § 6.708(a), (c). The court may order the fees and expenses and any postjudgment interest to be paid directly to the attorney, who may enforce the order in the attorney’s own name by any means available for the enforcement of a judgment for debt. Tex. Fam. Code § 6.708(c).
In determining whether a trial court abuses its discretion in making a just and right division of the community estate, it is important to quantify the size of the community pie so the reviewing court can know just how large a slice each spouse was served. Howe, 551 S.W.3d at 253. Each party in a divorce proceeding has a responsibility to produce evidence of the value of various properties to provide the trial court with a basis on which to make the division. Generally, a party who does not provide the trial court with values for the property cannot complain on appeal of the trial court’s lack of information in dividing the community estate. Howe, 551 S.W.3d at 254.
The general rule is that the value of community assets is determined as of the date of divorce or as close to that date as possible; however, nearness in time is a matter typically left to the trial court’s discretion. In re Marriage of C.A.S. & D.P.S., 405 S.W.3d 373, 385 (Tex. App.—Dallas 2013, no pet.). The determination of whether to use the time of the divorce or the time of the division as the valuation date of an asset when the divorce and division of the property occur at different dates is in fact so specific that it should be left to the discretion of the trial judge to avoid the inequities that could result by making a bright-line rule. Parker v. Parker, 897 S.W.2d 918, 932 (Tex. App.—Fort Worth 1995, writ denied). There is a difference between the trial court’s pronouncement of an interlocutory judgment granting the divorce and a final judgment of divorce that disposes of all issues in the case. In re Marriage of Hammett, No. 05-14-00613-CV, 2016 WL 3086126, at *4 (Tex. App.—Dallas June 1, 2016, no pet.) (mem. op.). A trial court is not required to value the community assets on the same date it orally rendered the interlocutory judgment of divorce. If the date of divorce and the date on which the property is divided are different, the trial judge has the discretion to decide which date to use. Hammett, 2016 WL 3086126, at *4.
COMMENT: If the court orally grants the divorce but takes any portion of the case under advisement, at that time the wise practitioner should ask the court to rule that no property acquired after the date of the oral pronouncement of divorce will be community property. Because the court will retain plenary power until after it signs the written decree, the court later can change that ruling, but the request may commit the court in its own mind and in its later property division to characterize and value the assets of the marriage as of the date the court orally granted the divorce, thus avoiding the issue in Hammett. As the court could take months to rule on the remaining issues, ending the growth (or diminution) of the community estate can make a substantial difference in the property division, particularly for retirement benefits.
The issues of divorce and property division may not be severed. Biaza v. Simon, 879 S.W.2d 349, 355 (Tex. App.—Houston [14th Dist.] 1994, writ denied); In re Marriage of Johnson, 595 S.W.2d 900, 902 (Tex. App.—Amarillo 1980, writ dism’d w.o.j.); see Garrison v. Mead, 553 S.W.2d 25, 26 (Tex. App.—Houston [1st Dist.] 1977, orig. proceeding). If the court fails to deal with any community property, that property is owned by the ex-spouses as tenants in common. Busby v. Busby, 457 S.W.2d 551, 554 (Tex. 1970). The property is subject to division under Family Code chapter 9, subchapter C (formerly sections 3.90 through 3.93). Haynes v. McIntosh, 776 S.W.2d 784, 786 (Tex. App.—Corpus Christi–Edinburg 1989, writ denied).
For a discussion of the division of various types of property, see chapter 23 of this manual.
Separate property consists of (1) the property owned or claimed by a spouse before marriage; (2) the property acquired by the spouse during marriage by gift, devise, or descent; and (3) the recovery for personal injuries sustained by the spouse during the marriage, except any recovery for loss of earning capacity during marriage. Tex. Fam. Code § 3.001.
To overcome the community property presumption, a spouse claiming assets as separate property must establish their separate character by clear and convincing evidence. Tex. Fam. Code § 3.003(b); Stavinoha v. Stavinoha, 126 S.W.3d 604, 607 (Tex. App.—Houston [14th Dist.] 2004, no pet.). “Clear and convincing” evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002); see also Tex. Fam. Code §§ 1.001(b), 101.007. As a general rule, the “clear and convincing” standard is not satisfied by testimony that property possessed at the time the marriage is dissolved is separate property when that testimony is contradicted or unsupported by documentary evidence tracing the asserted separate nature of the property. Graves v. Tomlinson, 329 S.W.3d 128, 139 (Tex. App.—Houston [14th Dist.] 2010, pet. denied).
The characterization of property as either community or separate is determined by the inception of title to the property. Inception of title occurs when a party first has a claim to the property by virtue of which title is finally vested. Smith v. Smith, 22 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
The spouse claiming certain property as “separate” must trace and clearly identify the property claimed to be separate. Tracing involves establishing the separate origin of the property through evidence showing the time and means by which the spouse originally obtained possession of the property. Zagorski v. Zagorski, 116 S.W.3d 309, 316 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). Once property is established as separate property, it remains separate property regardless of any mutations or changes in form; its separate character is not altered by the sale, exchange, or substitution of the property. Barras v. Barras, 396 S.W.3d 154, 167 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). Any doubt as to the character of property should be resolved in favor of the community estate. Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex. App.—Fort Worth 2004, no pet.).
A gift is a voluntary transfer of property to another made gratuitously and without consideration. Magness v. Magness, 241 S.W.3d 910, 912 (Tex. App.—Dallas 2007, pet. denied). To establish a gift, the donee must establish (1) the intent to make a gift, (2) the delivery of the property, and (3) its acceptance. Magness, 241 S.W.3d at 912. The donor’s intent is the principal issue in determining whether a gift was made. In re Marriage of Skarda, 345 S.W.3d 666, 671 (Tex. App.—Amarillo 2011, no pet.). Generally, the burden of proving a gift is on the party claiming that a gift was made. Woodworth v. Cortez, 660 S.W.2d 561, 564 (Tex. App.—San Antonio 1983, writ ref’d n.r.e.). However, when a parent conveys property to his or her child, a presumption arises that the parent intended to make a gift to the child. Woodworth, 660 S.W.2d at 564. This presumption can be rebutted by clear and convincing evidence showing the absence of donative intent. Knowlton v. Knowlton, No. 04-17-00257-CV, 2018 WL 2222621, at *3 (Tex. App.—San Antonio May 16, 2018, no pet.) (mem. op.). A donor may make a gift of encumbered property in which the donor agrees to discharge the debt, but the donor is not bound to pay off the indebtedness unless there is evidence that the donor intended to pay it. Waring v. Waring, No. 09-16-00030-CV, 2017 WL 4171336, at *5 (Tex. App.—Beaumont Sept. 21, 2017, no pet.) (mem. op.).
A spouse’s separate property includes “recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.” Tex. Fam. Code § 3.001(3). In addition to the statutory exception for loss of earning capacity, courts have treated amounts recovered for medical expenses as community property. See Graham v. Franco, 488 S.W.2d 390, 396 (Tex. 1972). To the extent that the marital partnership has incurred medical or other expenses and has lost wages, both spouses have been damaged by the injury to the spouse, and both spouses have a claim against the wrongdoer. The recovery, therefore, is community in character. Graham, 488 S.W.2d at 396. In contrast, amounts recovered for disfigurement, past and future mental anguish, and past and future physical pain and suffering are considered separate property. Harrell v. Hochderffer, 345 S.W.3d 652, 657 (Tex. App.—Austin 2011, no pet.).
When a spouse receives a personal injury settlement from a lawsuit during marriage, some of which could be separate property and some of which could be community property, it is that spouse’s burden to demonstrate which portion of the settlement is his separate property. Clear and convincing evidence showing that the recovery is solely for the personal injury of a particular spouse is necessary to overcome the presumption that the settlement proceeds represent community property. Harrell, 345 S.W.3d at 657.
Spouses may also set aside all or part of their community property as separate property by partition or exchange agreement. Tex. Const. art. XVI, § 15; Tex. Fam. Code §§ 4.102–.106. Although such property may undergo changes or mutations, as long as it is traced and properly identified it will remain separate property. Norris v. Vaughan, 260 S.W.2d 676, 679 (Tex. 1953). Problems of reimbursement are discussed at section 3.36 below. See also Beck v. Beck, 814 S.W.2d 745 (Tex. 1991), cert. denied, 503 U.S. 907 (1992); Jensen v. Jensen, 665 S.W.2d 107 (Tex. 1984); Vallone v. Vallone, 644 S.W.2d 455 (Tex. 1982); Daniel v. Daniel, 779 S.W.2d 110 (Tex. App.—Houston [1st Dist.] 1989, no writ); Marshall v. Marshall, 735 S.W.2d 587 (Tex. App.—Dallas 1987, writ ref’d n.r.e.).
Community property consists of the property, other than separate property, acquired by either spouse during marriage. Tex. Fam. Code § 3.002. Property possessed by either spouse during or on dissolution of marriage is presumed to be community property unless there is clear and convincing evidence that it is separate property. Tex. Fam. Code § 3.003. Any doubt as to the character of property should be resolved in favor of the community estate. Sink v. Sink, 364 S.W.3d 340, 345 (Tex. App.—Dallas 2012, no pet.). In the context of a divorce proceeding, characterization of property is determined by the time and circumstances of its acquisition. Rivera v. Hernandez, 441 S.W.3d 413, 420 (Tex. App.—El Paso 2014, pet. denied). Spouses may agree in writing that all or part of the separate property that either or both of them own is converted to community property. Tex. Const. art. XVI, § 15; Tex. Fam. Code § 4.202. One court found that property transferred to both spouses during marriage for a ten-dollar consideration was community property because the husband offered no evidence to rebut the presumption that the consideration was community property. Saldana v. Saldana, 791 S.W.2d 316, 320 (Tex. App.—Corpus Christi–Edinburg 1990, no writ). If a church is substantially involved in facilitating the collection of funds from its congregants for the benefit of a minister under a regularly conducted program, those contributions are income and community property to the minister and not gifts and separate property. West v. West, No. 01-14-00350-CV, 2016 WL 1719328, at *7 (Tex. App.—Houston [1st Dist.] Apr. 28, 2016, no pet.) (mem. op.). If a party lists an asset as community property in the party’s inventory and appraisement, the court may find the asset to be community property, even if the record title to the asset is in the name of the party’s adult child. Willis v. Willis, 533 S.W.3d 547, 553 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
§ 3.34Community Property Acquired While Domiciled outside Texas
The court shall divide in a just and right manner the property (and mutations thereof) acquired by either party while domiciled elsewhere if the property would have been community property if the party who acquired the property had been domiciled in Texas at the time of the acquisition. Tex. Fam. Code § 7.002(a); Cameron v. Cameron, 641 S.W.2d 210, 220 (Tex. 1982) (adopting predecessor of section 7.002 as part of substantive law of Texas); see also Adams v. Adams, 787 S.W.2d 619, 623 (Tex. App.—San Antonio 1990, no writ) (military retirement benefits accrued during residency in Tennessee were jointly owned by parties under Tennessee law and subject to division by Texas court).
This provision has been applied where only one spouse has migrated from a noncommunity-property-law jurisdiction to Texas. Ismail v. Ismail, 702 S.W.2d 216, 219 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.).
§ 3.35Separate-Property Divestiture
Ownership of separate real property may not be divested in dividing the estate of the parties. Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977). The prohibition extends to separate personal property. Cameron v. Cameron, 641 S.W.2d 210, 220 (Tex. 1982).
A lien, however, may be placed on one party’s separate property to enforce a reimbursement claim but not simply to enforce a just and right division. Heggen v. Pemelton, 836 S.W.2d 145, 146 (Tex. 1992); see Mullins v. Mullins, 785 S.W.2d 5, 11 (Tex. App.—Fort Worth 1990, no writ) (deed-of-trust lien); Kamel v. Kamel, 760 S.W.2d 677, 679 (Tex. App.—Tyler 1988, writ denied) (equitable lien).
In a decree of divorce, the court must determine the rights of both spouses in a claim for reimbursement as provided by Family Code chapter 3, subchapter E, and apply equitable principles to determine whether to recognize the claim after taking into account all the relative circumstances of the spouses and to order a division of the claim for reimbursement, if appropriate, in a manner the court considers just and right, having due regard for the rights of each party and any children of the marriage. Tex. Fam. Code § 7.007.
Since a trial court’s judgment must conform to the pleadings, a party’s pleadings must permit the trial court to ascertain a cause of action for reimbursement with reasonable certainty. Trevino v. Garza, No. 13-15-00241-CV, 2016 WL 1072627, at *2 (Tex. App.—Corpus Christi–Edinburg Mar. 17, 2016, no pet.) (mem. op.). The word reimbursement is presently considered to be a term of art, as are the terms characterization and compensation. A claim for reimbursement is distinct from a claim for compensation for waste of the community estate. Trevino, 2016 WL 1072627, at *2. A gift from one estate to another generally is not a proper basis for a reimbursement claim. Sonnier v. Sonnier, 331 S.W.3d 211, 217 (Tex. App.—Beaumont 2011, no pet.).
At common law, a reimbursement claim always arises when funds or assets of one marital estate are used to enhance and benefit the other marital estate. A reimbursement claim arises when one marital estate pays unsecured liabilities of another marital estate. Tex. Fam. Code § 3.402(a)(1). A reimbursement claim also arises when there is inadequate compensation to the community for the time, toil, talent, and effort of a spouse by a business entity under the control and direction of that spouse. Tex. Fam. Code § 3.402(a)(2); see Jensen v. Jensen, 665 S.W.2d 107, 109 (Tex. 1984); Vallone v. Vallone, 644 S.W.2d 455, 459 (Tex. 1982). A reimbursement claim may also arise from payment or reduction of debt secured by a lien on property or from capital improvements to property other than by incurring debt. Tex. Fam. Code § 3.402(a)(3)–(8). Existence of a lien requires more than an obligation to repay a debt; it requires some instrument, agreement, or act giving one creditor superior rights to collateral over all other unsecured creditors or creditors with a subsequently obtained judicial lien. Nelson v. Nelson, 193 S.W.3d 624, 628 (Tex. App.—Eastland 2006, no pet.). A reimbursement claim also arises from the reduction by the community property estate of an unsecured debt incurred by the separate estate of one of the spouses. Tex. Fam. Code § 3.402(a)(9).
A party claiming reimbursement must prove that the act giving rise to reimbursement occurred and that it is reimbursable. Vallone, 644 S.W.2d at 459. Although the Supreme Court of Texas has remanded such a cause in the interest of justice (see Jensen, 665 S.W.2d at 110), the safer practice is to plead the affirmative relief. See Vallone, 644 S.W.2d at 467.
A claim for reimbursement is to be resolved by using equitable principles, including the principle that claims for reimbursement may be offset against each other when appropriate. Tex. Fam. Code § 3.402(b). Benefits for the use and enjoyment of property may be offset against a claim for reimbursement for expenditures to benefit a marital estate, except that the separate estate of a spouse may not claim an offset for use and enjoyment of a primary or secondary residence owned wholly or partly by the separate estate against contributions made by the community estate to the separate estate. Tex. Fam. Code § 3.402(c).
A claim for reimbursement for funds expended by an estate for improvements to another estate is to be measured by enhancement in value to the benefited estate. Tex. Fam. Code § 3.402(d). The amount of the enhanced value is determined at the time of partition or dissolution of the marriage. In re Marriage of McCoy & Els, 488 S.W.3d 430, 434 (Tex. App.—Houston [14th Dist.] 2016, no pet.). The enhanced value is determined by the difference between the fair market value before and after improvements made during the marriage. To be reimbursable, a property’s enhanced value must be attributable to the community expenditures. It is not sufficient for the party seeking reimbursement to prove that the value of property has simply increased over time; the party seeking reimbursement must prove that the enhanced value of the property was actually due to the renovations or other improvements. In re Marriage of McCoy & Els, 488 S.W.3d at 435.
The party seeking an offset to a claim for reimbursement has the burden of proof with respect to the offset. Tex. Fam. Code § 3.402(e).
COMMENT: The benefited estate must be prepared not only to negate the claim for reimbursement but also to prove that the benefits received by the contributing estate exceed the amount expended.
Reimbursement may not be claimed for (1) the payment by one party of child support, alimony, or spousal maintenance during the marriage; (2) payments by one spouse for the living expenses of the other spouse or the other spouse’s child; (3) contributions of property of a nominal value; (4) the payment of a liability of a nominal amount; or (5) the payment of a student loan owed by a spouse. Tex. Fam. Code § 3.409. A claim for reimbursement cannot be made when community funds pay a community obligation. Dyer v. Dyer, No. 03-16-00753-CV, 2018 WL 2994439, at *5 (Tex. App.—Austin June 15, 2018, no pet.) (mem. op.).
A claim for reimbursement does not create an ownership interest in property but, rather, creates a claim against the property of the benefited estate by the contributing estate. The claim does not mature until dissolution of the marriage or the death of either spouse. Tex. Fam. Code § 3.404(b).
On dissolution of a marriage, the court may impose an equitable lien on the property of a benefited marital estate to secure a claim for reimbursement against that property by a contributing marital estate. Tex. Fam. Code § 3.406(a). The equitable lien may be imposed only on property benefited by the economic contribution and, because of constitutional protections, may not be imposed on homestead property. Hinton v. Burns, 433 S.W.3d 189, 199–201 (Tex. App.—Dallas 2014, no pet.).
§ 3.37Proportional Ownership of Property by Marital Estates
If the community estate of the spouses and the separate estate of a spouse each have an ownership interest in an item of property, the respective ownership interests of the marital estates are determined by the rule of inception of title. Tex. Fam. Code § 3.006. Property purchased with separate and community funds is owned as tenants in common by the separate and community estates. Cockerham v. Cockerham, 527 S.W.2d 162, 168 (Tex. 1975). Percentages of ownership are determined by the amount of funds contributed by each estate to the total purchase price. Geich v. Bongio, 99 S.W.2d 881, 883 (Tex. 1937). If the separate estates of each spouse own undivided interests in a property, including when a party gives her spouse an interest in property she owned before the marriage, the parties own that property as tenants in common. The trial court has the authority, under the general laws pertaining to partition suits between co-tenants, to order, concurrently with the divorce proceeding, that the residence be partitioned by sale. Allen v. Allen, No. 02-17-00031-CV, 2018 WL 547586, at *6 (Tex. App.—Fort Worth Jan. 25, 2018, no pet.) (mem. op.).
§ 3.38Reconstituted Community Estate
On a finding that a spouse has committed actual or constructive fraud on the community, the court must calculate the value by which the community estate was depleted as a result of the fraud and calculate the amount of the reconstituted estate, which is the total value of the community estate that would exist if an actual or constructive fraud on the community had not occurred. Then the court must divide the value of the reconstituted estate between the parties in a manner the court deems just and right. The court may grant any legal or equitable relief necessary to accomplish a just and right division, including awarding to the wronged spouse an appropriate share of the community estate remaining after the fraud on the community, awarding a money judgment in favor of the wronged spouse against the spouse who committed the fraud, or awarding to the wronged spouse both a money judgment and an appropriate share of the community estate. Tex. Fam. Code § 7.009.
In vitro fertilization agreements entered before the procedure that provide for the destruction of frozen embryos in the event of the parties’ divorce are valid and enforceable agreements and are not against the public policy of the state of Texas. Roman v. Roman, 193 S.W.3d 40 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).
[Section 3.40 is reserved for expansion.]
The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child. Tex. Fam. Code § 153.002. Among the factors that the court should consider when determining the best interest of the child are (1) the desires of the child, (2) the emotional and physical needs of the child now and in the future, (3) the emotional and physical danger to the child now and in the future, (4) the plans for the child by the party seeking the change, and (5) the stability of the home or proposed placement. Lenz v. Lenz, 40 S.W.3d 111, 115 (Tex. App.—San Antonio 2000), rev’d on other grounds, 79 S.W.3d 10 (Tex. 2002) (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). For an analysis of the best interest of the child, see also the dissent by Justice Keyes in Patterson v. Brist, 236 S.W.3d 238 (Houston [1st Dist.] 2006, pet. dism’d).
§ 3.42Mandatory Joinder of Suit Affecting Parent-Child Relationship in Divorce Suit
If the parties to the divorce are parents of a child, and the child is not under the continuing jurisdiction of another court as provided by chapter 155 of the Texas Family Code, the divorce suit must include a suit affecting the parent-child relationship (SAPCR). Tex. Fam. Code § 6.406(b); In re Morales, 968 S.W.2d 508, 511 (Tex. App.—Corpus Christi–Edinburg 1998, no pet.). Thus, every divorce involving a minor child of the parties must include a SAPCR as a second cause of action. A trial court may not sever a SAPCR from a divorce. In re B.T.G., 494 S.W.3d 839, 843 (Tex. App.—Dallas 2016, no pet.). Similarly, a trial court may not properly sever property division from a divorce action. In re B.T.G., 494 S.W.3d at 842. These rules apply even if the parties have no assets. See In re B.T.G., 494 S.W.3d at 841.
The requirement that a SAPCR must be included together with the divorce does not, in itself, confer the requisite jurisdiction on the Texas trial court to decide all the issues that may be implicated in typical cases involving spouses who also have a child of the marriage. The possibility that a Texas court will have only partial jurisdiction over all issues in either or both the dissolution cause of action and the SAPCR when the parties or the child reside in different states is explicitly recognized in Family Code sections 6.308 and 102.012. These provisions state that a Texas trial court may exercise jurisdiction only over those portions of the suit for which it has authority. See Tex. Fam. Code §§ 6.308, 102.012. For example, a Texas court may render a decree of dissolution of the marriage of a Texas spouse without having personal jurisdiction over both spouses. Tex. Fam. Code §§ 6.301–.304, 6.306–.307.
On the other hand, a spousal support or child support order may be rendered against a nonresident obligor only if the court has personal jurisdiction over that party. Tex. Fam. Code §§ 8.051, 159.201; see Estin v. Estin, 334 U.S. 541 (1948) (alimony); Kulko v. Superior Court, 436 U.S. 84 (1978) (child support). In 1980, the principle regarding child support was confirmed by federal statute to ensure universal understanding of the mandate. See 28 U.S.C. § 1738B(c). The impact of this restriction of the trial court’s jurisdiction is mitigated by the expansive long-arm statute contained in the Uniform Interstate Family Support Act. See Tex. Fam. Code § 159.201. (Identical provisions are in effect in all states.) A complementary long-arm statute for dissolution suits is found in Tex. Fam. Code § 6.305.
Similarly, the court’s authority to resolve all custody and visitation issues in controversy between the parties may be restricted because another state is the “home state” of the child, even if the Texas court has the requisite, albeit subordinate, jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (chapter 152 of the Texas Family Code). In Powell v. Stover, 165 S.W.3d 322 (Tex. 2005), the parents had moved from Texas and lived with their then-only child in another state for more than six months, thereby establishing it as the child’s “home state.” The mother returned to Texas with that child and gave birth to a second child. She then filed for divorce and for custody of and child support for both children. The Texas Supreme Court reversed the trial and appellate courts’ determination that Texas had custody jurisdiction over both children. The court held that the explicit terms of the UCCJEA, in effect in both states, mandate that the home state has jurisdictional priority regarding the father’s subsequent custody suit for the first child, which prevails over the “significant-connection” jurisdiction of Texas; Texas has jurisdictional priority regarding custody of the second child.
Section 6.406(b) of the Texas Family Code does not vest the trial court with subject-matter jurisdiction if another state would have jurisdiction under the UCCJEA. The UCCJEA specifically provides that it is the “exclusive jurisdictional basis” for making a child custody determination. Tex. Fam. Code § 152.201(b). Moreover, the UCCJEA provides that if its provisions conflict with another Texas statute, the UCCJEA controls. Tex. Fam. Code § 152.002. See Seligman-Hargis v. Hargis, 186 S.W.3d 582, 586 (Tex. App.—Dallas 2006, no pet.).
The shorthand terminology for the complexity of the jurisdictional rules governing divorce, child custody and visitation, and spousal and child support is “bifurcated jurisdiction,” which in the Texas Family Code is labeled “partial jurisdiction.” For a more detailed explanation of these jurisdictional rules, see chapter 43 of this manual. A more comprehensive explanation of these rules is found in Russell J. Weintraub, Commentary on the Conflict of Laws (5th ed., Foundation Press 2006).
If the parties to the divorce are parents of a child who is under the continuing jurisdiction of another Texas court, either party to the divorce suit may move that court for transfer of the suit affecting the parent-child relationship to the court having jurisdiction of the divorce suit. The court with continuing jurisdiction shall then transfer the proceeding as provided by Family Code chapter 155. On transfer of the proceedings, the court with jurisdiction of the divorce suit shall consolidate the suit affecting the parent-child relationship with the divorce suit. Tex. Fam. Code § 6.407(b).
The general rule is that, when a court acquires jurisdiction of a suit affecting the parent-child relationship, that court retains continuing, exclusive jurisdiction over the parties and matters and no other court has jurisdiction of a suit affecting the parent-child relationship with regard to that child except on transfer as provided in Family Code chapter 155 or in child-protection proceedings under Family Code chapter 262. Tex. Fam. Code §§ 155.001, 155.002. Specific rules regarding continuing, exclusive jurisdiction are found in chapter 155.
A more thorough treatment of the matters concerning jurisdiction and court powers is contained in section 3.50 below relating to the Uniform Child Custody Jurisdiction and Enforcement Act.
Denial of paternity is discussed in chapter 54 of this manual.
§ 3.45Conservatorship and Support
For a discussion of conservatorship, see chapter 40 of this manual. Child support is the subject of chapter 9. If grandparents or other nonparents are involved, see chapter 44.
§ 3.46Health and Dental Insurance Information
In a suit affecting the parent-child relationship in which the court orders periodic payments of child support or determines that medical support of the child must be established, modified, or clarified, before a hearing on temporary orders (or a final order, if no hearing on temporary orders is held), the parties must disclose in a pleading or other statement one of the following: (1) if private health insurance is in effect for the child, the identity of the insurance company providing the coverage, the policy number, which parent is responsible for payment of any insurance premium for the coverage, whether the coverage is provided through a parent’s employment, and the cost of the premium or (2) if private health insurance is not in effect for the child, whether the child is receiving medical assistance under chapter 32 of the Human Resources Code, whether the child is receiving health benefits coverage under chapter 62 of the Health and Safety Code and the cost of any premium, and whether either parent has access to private health insurance at a reasonable cost to the obligor. Tex. Fam. Code § 154.181(a), (b).
In a suit affecting the parent-child relationship, before a hearing on temporary orders (or a final order, if no hearing on temporary orders is held), the parties must disclose in a pleading or other statement whether the child is covered by dental insurance and, if so, the identity of the insurance company providing the coverage, the policy number, which parent is responsible for payment of any insurance premium for the coverage, whether the coverage is provided through a parent’s employment, and the cost of the premium. Tex. Fam. Code § 154.1815(b), (c).
COMMENT: If the information is available at the time of filing the original petition or original answer, the better practice is to include health and dental insurance statements as attachments to the original pleading. See form 56-2 in this manual.
Section 153.009 of the Family Code regulates the court’s interview of a child in chambers. See section 40.14 in this manual for a detailed discussion of this topic.
Any party in a divorce suit has a right to a jury trial on timely demand. Tex. Fam. Code §§ 6.703, 105.002(a). However, the right is limited.
In a jury trial in a suit affecting the parent-child relationship, a party is entitled to a jury verdict on (1) the appointment of a sole managing conservator; (2) the appointment of joint managing conservators; (3) the appointment of a possessory conservator; (4) the determination of which joint managing conservator has the exclusive right to designate the child’s primary residence; (5) the determination of whether to impose a restriction on the geographic area in which a sole or joint managing conservator may designate the residence; and (6) the determination of that geographic area, if a restriction is imposed. The court may not contravene a jury verdict on any of these issues. Tex. Fam. Code § 105.002(c)(1). The court may not submit to the jury questions on the issues of (1) support under Family Code chapter 154 or 159; (2) a specific term or condition of possession of or access to the child; or (3) any right or duty of a conservator, other than which joint managing conservator has the exclusive right to designate the primary residence of the child and determinations concerning geographic restrictions on the primary residence. Tex. Fam. Code § 105.002(c)(2).
See also the suggested jury questions, instructions, and definitions for family law cases contained in the current edition of State Bar of Texas, Texas Pattern Jury Charges—Family and Probate.
A party must plead in its petition facts that are sufficient for the court to exercise personal jurisdiction over a nonresident respondent. The failure of a petition to include these jurisdictional facts will cause a default judgment against the respondent to be reversed for all the purposes for which personal jurisdiction is required. See Calvert v. Calvert, 801 S.W.2d 217, 219 (Tex. App.—Fort Worth 1990, no writ).
In a suit affecting the parent-child relationship, the court may exercise personal jurisdiction over a person on whom service of citation is required, although the person is not a resident or domiciliary of Texas, if—
1.the person is personally served with citation in Texas;
2.the person submits to the jurisdiction of Texas by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
3.the child resides in Texas as a result of the acts or directives of the person;
4.the person resided with the child in Texas;
5.the person resided in Texas and provided prenatal expenses or support for the child;
6.the person engaged in sexual intercourse in Texas and the child may have been conceived by that act of intercourse;
7.the person, as provided by Family Code chapter 160, registered with the paternity registry maintained by the vital statistics unit or signed an acknowledgment of paternity of a child born in Texas; or
8.there is any basis consistent with the constitutions of Texas and of the United States for the exercise of personal jurisdiction.
The long-arm jurisdiction provisions parallel similar provisions found in the Uniform Interstate Family Support Act at Family Code section 159.201.
This subject is discussed in May v. Anderson, 345 U.S. 528 (1953); Mitchim v. Mitchim, 518 S.W.2d 362 (Tex. 1975); Perry v. Ponder, 604 S.W.2d 306 (Tex. App.—Dallas 1980, no writ); and Spitzmiller v. Spitzmiller, 429 S.W.2d 557 (Tex. App.—Houston [1st Dist.] 1968, writ ref’d n.r.e.).
In Burnham v. Superior Court of California, 495 U.S. 604 (1990), the Supreme Court held that the due process clause does not prohibit a state court from exercising in personam jurisdiction over a nonresident defendant based on personal service of process while the defendant was temporarily in the state.
For a discussion of similar provisions regarding the part of the suit concerned with dissolution of the marriage, see section 3.4 above.
Note that the fact that a Texas court may have personal jurisdiction over both parents in a suit affecting the parent-child relationship does not always mean that the court may decide all the issues that may be implicated in typical cases. The possibility that a Texas court will have only partial jurisdiction over all issues in the suit when the parties or the child reside in different states is explicitly recognized in Family Code section 102.012. This provision states that a Texas trial court may exercise jurisdiction only over those portions of the suit for which it has authority. See Tex. Fam. Code § 102.012. For example, the court’s authority to resolve all custody and visitation issues in controversy between the parties may be restricted because another state is the “home state” of the child, even if the Texas court has the requisite, albeit subordinate, jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (chapter 152 of the Texas Family Code). Powell v. Stover, 165 S.W.3d 322 (Tex. 2005).
As noted above, the existence of federal and uniform state legislation has had significant effect on this area of the law. See the UCCJEA, Tex. Fam. Code §§ 152.001–.317, and the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A. The Texas version of the UCCJEA is discussed at section 3.50 below. For a more detailed explanation of these statutes, see chapter 43 of this manual. A more comprehensive explanation of these laws is found in Russell J. Weintraub, Commentary on the Conflict of Laws (5th ed., Foundation Press 2006).
§ 3.50Uniform Child Custody Jurisdiction and Enforcement Act
In a suit affecting the parent-child relationship, the court may exercise status or subject-matter jurisdiction over the suit under Family Code sections 152.001 through 152.317 (known as the Uniform Child Custody Jurisdiction and Enforcement Act or UCCJEA). Tex. Fam. Code § 102.011(a). Note, however, that the filing of a divorce requires the joinder of the suit affecting parent-child relationship and will force the suit affecting the parent-child relationship to be tried in the same cause and location as the divorce. See section 3.42 above.
Required Information: Unless each party resides in Texas, in a child custody proceeding, sworn information must be supplied to the court in the first pleading of each party or in an affidavit attached to that pleading. See Tex. Fam. Code § 152.209(a). If the information is not furnished, the court, on its own motion or that of a party, may stay the proceeding until the information is furnished. Tex. Fam. Code § 152.209(b).
Required information, to be given under oath, concerns the child’s present address or whereabouts, the places where the child has lived within the last five years, and the names and present addresses of the persons with whom the child has lived during that period. Each party must further declare under oath whether he has participated as a party or witness or in any other capacity in any other proceeding concerning the custody of or visitation with the child (and, if so, identify the court, the case number, and the date of the child custody determination, if any); whether he knows of any proceeding that could affect the current proceeding (and, if so, identify the court, the case number, and the nature of the proceeding); and whether he knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child (and, if so, the names and addresses of those persons). Tex. Fam. Code § 152.209(a). For any affirmative declarations, the declarant must give additional information under oath as required by the court. Tex. Fam. Code § 152.209(c). Each party has a continuing duty to inform the court of any proceeding in Texas or any other state that could affect the current proceeding. Tex. Fam. Code § 152.209(d). If a party alleges on oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of identifying information, the information must be sealed and may not be disclosed except on court order after a hearing. Tex. Fam. Code § 152.209(e).
Additional Parties: The obligation to join a party and the right to intervene as a party in a child custody proceeding under Family Code chapter 152 are governed by Texas law as in child custody proceedings between Texas residents. Tex. Fam. Code § 152.205(c).
Exercise of Jurisdiction: If all contestants reside in Texas at the commencement of the divorce proceeding and the child is present with the parties, Texas may then proceed to exercise jurisdiction over the title 1 aspect of the divorce and the title 5 aspect of the suit affecting the parent-child relationship. Under the UCCJEA, the determination is based on where the child lives, and the child’s physical presence is the “central factor” in making that determination. C.H. v. S.L., No. 02-16-00386-CV, 2018 WL 4925318, at *5 (Tex. App.—Fort Worth Oct. 11, 2018, no pet.) (mem. op.).
In Villarreal v. Villarreal, No. 04-15-00551-CV, 2016 WL 4124067 (Tex. App.—San Antonio Aug. 3, 2016, no pet.) (mem. op.), the petitioner filed a divorce, coupled with a suit affecting the parent-child relationship, in state district court. When the trial court entered an order of conditional dismissal for failure to pay court costs, the petitioner filed a petition for divorce in a tribal court. The state district court case was never dismissed, nor was it stayed. The appellate court held that the Indian Child Welfare Act was not applicable to a custody case within a divorce proceeding. Accordingly, the appellate court held that the Indian tribe within which the tribal court was located should be treated as a state of the United States under the UCCJEA. Because Texas was the home state of the children when the petitioner filed the divorce in state district court, the trial court had jurisdiction to make the initial child custody determination. Villarreal, 2016 WL 4124067, at *3.
Unless all contestants and the child are residents of Texas at the commencement of the proceeding, the court must determine whether it has jurisdiction to proceed to enter an order in a suit affecting the parent-child relationship. If a court does not have subject-matter jurisdiction over the suit affecting the parent-child relationship, it has no authority to enter orders. A challenge to subject-matter jurisdiction can be raised at any time. Alfonso v. Skadden, 251 S.W.3d 52 (Tex. 2008). A detailed discussion of this topic is found in chapter 43 of this manual.
Notice: The provisions for notice and opportunity to be heard are set forth in Family Code sections 152.108 and 152.205. See Tex. Fam. Code §§ 152.108, 152.205. The primary requirement is that the absent party be given notice by personal service; in a manner prescribed by law in the place in which service is made; by mail, subject to the Texas Rules of Civil Procedure; or as directed by the court, subject to the requirements of the Texas Rules of Civil Procedure.
[Sections 3.51 through 3.60 are reserved for expansion.]
V. Additional Causes of Action
Spouses can sue each other for intentional torts and for negligence. The doctrine of interspousal immunity, as it related specifically to intentional torts, was abolished in 1977. Bounds v. Caudle, 560 S.W.2d 925, 926–27 (Tex. 1977). Damages for a spouse’s willful and intentional torts committed during the marriage are recoverable. Mogford v. Mogford, 616 S.W.2d 936, 939–40 (Tex. App.—San Antonio 1981, writ ref’d n.r.e.). Since 1987, one spouse can sue the other for negligent conduct. Price v. Price, 732 S.W.2d 316, 319 (Tex. 1987).
The statute of limitations begins to run on a tort action at the time the injury occurs. Atkins v. Crosland, 417 S.W.2d 150, 153 (Tex. 1967). An action for tort damages must generally be brought within two years of the injury. See Tex. Civ. Prac. & Rem. Code § 16.003.
A third party cannot be held liable in tort when community property is taken by one of the spouses. Chu v. Hong, 249 S.W.3d 441, 445 (Tex. 2008). Waste, fraudulent transfer, or other damage to community property are claims belonging to the community itself, so they must be included in the trial court’s just and right division of community property on divorce. Chu, 249 S.W.3d at 444–45. In other words, if the claims belong to the community, they are to be addressed via the trial court’s duty to make a just and right division of the community estate. If they are separate property, they remain not only the spouse’s but also susceptible to prosecution by the spouse after divorce. Kite v. King, 492 S.W.3d 468, 475 (Tex. App.—Amarillo 2016, no pet.).
If a spouse disposes of community property in fraud of the other spouse’s rights, the aggrieved spouse has a right of recourse first against the property or estate of the disposing spouse; if that proves to be of no avail, the aggrieved spouse may pursue the proceeds to the extent of that spouse’s community interest into the hands of the party to whom the funds were conveyed. Carnes v. Meador, 533 S.W.2d 365, 371 (Tex. App.—Dallas 1975, writ ref’d n.r.e.).
Pleadings must give fair notice of the claim involved to the opposing party. See Tex. R. Civ. P. 45(b), 47(a). Even when not raised by the pleadings, if issues are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Tex. R. Civ. P. 67; Gamboa v. Gamboa, 383 S.W.3d 263, 271 (Tex. App.—San Antonio 2012, no pet.). Trial by consent is intended to cover only the exceptional case in which it clearly appears from the record as a whole that the parties tried the unpleaded issue; it should be applied with care and is not intended to establish a general rule of practice. Guillory v. Boykins, 442 S.W.3d 682, 690 (Tex. App.—Houston [1st Dist.] 2014, no pet.). To determine whether an issue was tried by consent, the appellate court examines the record not for evidence pertaining to the issue, but rather for evidence that the issue was actually tried. Guillory, 442 S.W.3d at 690. A party’s unpleaded issue may be deemed tried by consent when evidence on the issue is developed under circumstances indicating both parties understood the issue was present in the case and the other party failed to make an appropriate complaint. Prize Energy Resources, L.P. v. Cliff Hoskins, Inc., 345 S.W.3d 537, 567 (Tex. App.—San Antonio 2011, no pet.). When evidence relevant to both a pleaded and an unpleaded issue has been admitted without objection, the doctrine of trial by consent should generally not be applied. Johnston v. McKinney American, Inc., 9 S.W.3d 271, 281 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).
The definition of assault contained in the Texas Penal Code applies to a civil suit for damages. Hogenson v. Williams, 542 S.W.2d 456, 458 (Tex. App.—Texarkana 1976, no writ). Section 22.01(a) of the Texas Penal Code defines assault. It provides that a person commits an offense if the person—
1.intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
2.intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or
3.intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
Sexual assault is defined in Penal Code section 22.011. See Tex. Penal Code § 22.011.
If an assault is perpetrated by one person with the assistance or participation of another, both are principals, and each is jointly and severally liable for the damages. However, overt participation by one actor and some form of encouragement by the other are required to deem both persons as principals. Francis v. Kane, 246 S.W.2d 279, 281 (Tex. App.—Amarillo 1951, no writ).
Defenses: Affirmative defenses in civil actions for assault must be pleaded, or else they are waived. Defenses in a civil action for assault include defense of property and justification. Cooper v. Boyar, 567 S.W.2d 555, 558–59 (Tex. App.—Waco 1978, writ ref’d n.r.e.); see also Tex. R. Civ. P. 94. A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force. Tex. Penal Code § 9.31(a); Holmes v. Holmes, 588 S.W.2d 674, 675–76 (Tex. App.—Beaumont 1979, no writ). A defendant in a civil cause of action for assault has no right to an affirmative defense of self-defense if, after being threatened by the plaintiff, the defendant approached the plaintiff and provoked a confrontation with him. Hickman v. Durham, 213 S.W.2d 569, 570 (Tex. App.—Eastland 1948, writ ref’d n.r.e.).
Damages: In cases of willful battery, damages for mental suffering are recoverable, with or without actual physical injury. Fisher v. Carrousel Motor Hotel, 424 S.W.2d 627, 630 (Tex. 1967). A petitioner may also recover exemplary damages if the trier of fact finds that the respondent acted in a malicious, willful, or wanton manner. Lubbock Bail Bond v. Joshua, 416 S.W.2d 523, 525–26 (Tex. App.—Amarillo 1967, no writ).
Although not a justification for assault, provocation is a mitigating factor in a suit for assault. Mitigating factors can be raised even if only a general denial is pleaded. See Taylor v. Gentry, 494 S.W.2d 243 (Tex. App.—Fort Worth 1973, no writ).
§ 3.63Intentional Infliction of Emotional Distress
One spouse in a divorce proceeding can sue the other spouse for intentionally or recklessly causing severe emotional distress by extreme and outrageous conduct. Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993). The elements of the tort in the supreme court’s plurality opinion in Twyman set forth are that—
1.the defendant acted intentionally or recklessly,
2.the conduct was extreme and outrageous,
3.the actions of the defendant caused the plaintiff emotional distress, and
4.the emotional distress suffered by the plaintiff was severe.
Twyman, 855 S.W.2d at 621.
The tort of intentional infliction of emotional distress is available only in those situations in which severe emotional distress is the intended consequence or primary risk of the actor’s conduct. Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 67 (Tex. 1998). Intentional infliction of emotional distress is a “gap-filler” tort that should not be extended to circumvent the limitations placed on the recovery of mental anguish damages under more established tort doctrines; its clear purpose is to supplement existing forms of recovery by providing a cause of action for egregious conduct that its more established neighbors in tort doctrine would technically fence out. Standard Fruit, 985 S.W.2d at 68. The fact that the conduct also caused physical harm does not preclude recovery for emotional distress. It is not a defense that the conduct happened during a troubled marriage. Castro v. Castro, No. 13-13-00186-CV, 2014 WL 3802613, at *7–9 (Tex. App.—Corpus Christi–Edinburg July 31, 2014, pet. dism’d) (mem. op.).
§ 3.64Interference with Possessory Interest in Child
A cause of action for interference with a possessory interest in a child is found both in the Family Code and in common law. Tex. Fam. Code §§ 42.001–.009; Silcott v. Oglesby, 721 S.W.2d 290, 292–93 (Tex. 1986); Smith v. Smith, 720 S.W.2d 586, 597–98 (Tex. App.—Houston [1st Dist.] 1986, no writ).
A person who takes or retains possession of a child or who conceals the whereabouts of a child in violation of a possessory right of another person may be liable for damages to that person. Tex. Fam. Code § 42.002(a).
A person who aids or assists in such conduct is jointly and severally liable for damages. One who was not a party to the suit in which an order was rendered providing for a possessory right is not liable unless at the time of the violation the person had actual notice of the existence and contents of the order or had reasonable cause to believe that the child was the subject of an order and that his actions were likely to violate the order. Tex. Fam. Code § 42.003. See also A.H. Belo Corp. v. Corcoran, 52 S.W.3d 375, 382 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (holding that Family Code section 42.003 does not create affirmative duty in third party to reveal child’s whereabouts).
Damages may include the actual costs and expenses, including attorney’s fees, incurred in locating the child, recovering possession of the child if the plaintiff is entitled to possession, and enforcing the order and prosecuting the suit. Damages may also include mental suffering and anguish incurred by the plaintiff because of a violation of the order. Exemplary damages may be awarded if a person liable for damages acted with malice or with an intent to cause harm to the plaintiff. Tex. Fam. Code § 42.006.
It is an affirmative defense that the defendant violated the order with the express consent of the plaintiff. Tex. Fam. Code § 42.007.
A person sued for damages under Family Code chapter 42 is entitled to recover attorney’s fees and court costs if the claim is dismissed or judgment is awarded to the defendant and the court or jury finds that the claim for damages is frivolous, unreasonable, or without foundation. Tex. Fam. Code § 42.009.
The use of chapter 42 does not affect any other civil or criminal remedy available to any person. Tex. Fam. Code § 42.008.
Texas recognizes a cause of action for intentional infliction of emotional distress but does not recognize an independent cause of action for negligent infliction of emotional distress within the context of a parental kidnapping case. Weirich v. Weirich, 796 S.W.2d 513, 515–16 (Tex. App.—San Antonio 1990), rev’d on other grounds, 833 S.W.2d 942 (Tex. 1992).
As a general rule, spouses can sue each other for negligent conduct. Some exceptions exist, however.
Negligent Infliction of Emotional Distress: Texas does not recognize an independent right to recover for negligently inflicting emotional distress. Massey v. Massey, 867 S.W.2d 766, 766 (Tex. 1993); Boyles v. Kerr, 855 S.W.2d 593, 595–96 (Tex. 1993). There is no general duty not to negligently inflict emotional distress. Boyles, 855 S.W.2d at 597. Mental anguish damages should be compensated only in connection with the defendant’s breach of some other duty imposed by law. Boyles, 855 S.W.2d at 596. “For many breaches of legal duties, even tortious ones, the law affords no right to recover for resulting mental anguish.” Temple-Inland Forest Products Corp. v. Carter, 993 S.W.2d 88, 91 (Tex. 1999) (quoting City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex. 1997)).
Negligent Interference with Familial Relations: Texas does not recognize an independent cause of action for negligent interference with familial relations. Helena Laboratories Corp. v. Snyder, 886 S.W.2d 767, 768 (Tex. 1994) (per curiam). Helena Laboratories involved a cause of action against the employer of the plaintiffs’ respective spouses, who were having an extramarital affair. The plaintiffs maintained that the employer negligently interfered with their familial relations by failing to take action to prevent the affair between their spouses. The plaintiffs argued that the employer had a duty to use reasonable means at its disposal to prevent any partner, vice principal, or employee from improperly using his position with the employer to work a tortious invasion of legally protected family interests. See Snyder v. Helena Laboratories, Inc., 877 S.W.2d 35, 37 (Tex. App.—Beaumont), rev’d, 886 S.W.2d 767 (Tex. 1994). The supreme court disagreed, holding that the plaintiffs essentially alleged a cause of action for alienation of affection, which is barred by Family Code section 1.107. Helena Laboratories, 886 S.W.2d at 768 (citing repealed section 4.06 of the Family Code, now Tex. Fam. Code § 1.107).
Actual fraud involves dishonesty of purpose or intent to deceive. Horlock v. Horlock, 533 S.W.2d 52, 55 (Tex. App.—Houston [14th Dist.] 1975, writ dism’d w.o.j.). The elements of actual fraud are that—
1.a material representation was made;
2.the representation was false;
3.when the speaker made the representation, he either knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion;
4.the speaker made the representation with the intent that it be acted on by the party;
5.the party acted in reliance on it; and
6.the party thereby suffered injury.
Stone v. Lawyers Title Insurance Corp., 554 S.W.2d 183, 185 (Tex. 1977). Fraud will not be presumed. If the facts are susceptible of contrary inferences, honest and fair dealing rather than fraud and deceit will be preferred. Blanton v. Sherman Compress Co., 256 S.W.2d 884, 887 (Tex. App.—Dallas 1953, no writ).
If there is a duty to speak, silence may be as misleading as a positive misrepresentation of existing facts. Hennigan v. Harris County, 593 S.W.2d 380, 384 (Tex. App.—Waco 1979, writ ref’d n.r.e.). Fraud by nondisclosure is considered a subcategory of fraud. Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex. 1997). To establish fraud by nondisclosure, the plaintiff must prove that—
1.the defendant failed to disclose facts to the plaintiff;
2.the defendant had a duty to disclose those facts;
3.the facts were material;
4.the defendant knew the plaintiff was ignorant of the facts and the plaintiff did not have an equal opportunity to discover the facts;
5.the defendant was deliberately silent when it had a duty to speak;
6.by failing to disclose the facts, the defendant intended to induce the plaintiff to take some action or refrain from acting;
7.the plaintiff relied on the defendant’s nondisclosure; and
8.the plaintiff was injured as a result of acting without that knowledge.
Blankinship v. Brown, 399 S.W.3d 303, 308 (Tex. App.—Dallas 2013, pet. denied).
No actionable fraud exists if each party is equally cognizant of the facts. Roan v. Reynolds, 364 S.W.2d 763, 766 (Tex. App.—Amarillo 1963, no writ). A representation that is literally true is actionable if it was made to create an impression that is substantially false. The false representation may consist of a deceptive answer or any other indirect but misleading language. Recovery cannot be had for a true statement that is misunderstood without any fault or design of the speaker. Blanton, 256 S.W.2d at 888.
Limitations: The statute of limitations for a cause of action based on fraud is four years. Tex. Civ. Prac. & Rem. Code § 16.004(a). The statute of limitations does not begin to run until the fraud is discovered or until the petitioner acquires such knowledge as would lead to discovery of the fraud if reasonable diligence were exercised. Kelly v. Dorsett, 581 S.W.2d 512, 513 (Tex. App.—Dallas 1979, writ ref’d n.r.e.); Polk Terrace, Inc. v. Curtis, 422 S.W.2d 603, 605 (Tex. App.—Dallas 1967, writ ref’d n.r.e.).
Damages: Damages for actual fraud are not recoverable against a party’s spouse in a divorce action if the fraud involves the wrongful disposition of community property. In such a situation the wronged spouse is limited to relief under Tex. Fam. Code § 7.009 in division of the community estate. On a finding that a spouse has committed actual or constructive fraud on the community, the court must calculate the value by which the community estate was depleted as a result of the fraud and calculate the amount of the reconstituted estate, which is the total value of the community estate that would exist if an actual or constructive fraud on the community had not occurred. Then the court must divide the value of the reconstituted estate between the parties in a manner the court deems just and right. The court may grant any legal or equitable relief necessary to accomplish a just and right division, including awarding to the wronged spouse an appropriate share of the community estate remaining after the fraud on the community, awarding a money judgment in favor of the wronged spouse against the spouse who committed the fraud, or awarding to the wronged spouse both a money judgment and an appropriate share of the community estate. Tex. Fam. Code § 7.009.
If the fraud involves the wrongful disposition of the separate property of a spouse, damages for actual fraud may still be recoverable against that party’s spouse with judgment against the opposing spouse’s share of the community estate or the opposing spouse’s separate estate, if any. See Schlueter v. Schlueter, 975 S.W.2d 584 (Tex. 1998).
A person injured by fraud against the person’s separate estate or fraud committed by a nonspouse third party may either accept the situation created by the fraud and seek to recover damages or repudiate the transaction and file a cause of action for rescission. Talley v. Nalley, 277 S.W.2d 739, 740 (Tex. App.—Waco 1955, writ ref’d n.r.e.); Andrews v. Powell, 242 S.W.2d 656, 660 (Tex. App.—Texarkana 1951, no writ). Proof of damages is essential to prove fraud itself. Stone, 554 S.W.2d at 185. The measure of damages is the amount of actual loss resulting from the fraud. Morriss-Buick Co. v. Pondrom, 113 S.W.2d 889, 890 (Tex. 1938). Exemplary damages are also recoverable if the fraud against the spouse’s separate estate was intentionally committed for the purpose of injuring the defrauded party, Dennis v. Dial Finance & Thrift Co., 401 S.W.2d 803, 805 (Tex. 1966), or with reckless disregard of the injurious consequences to others, Kilgore Federal Savings & Loan Ass’n v. Donnelly, 624 S.W.2d 933, 938 (Tex. App.—Tyler 1981, writ ref’d n.r.e.). Exemplary damages may also be recovered against a nonspouse third party. If damages are established as of a definite time and the amount is determinable by known standards of value, interest is also recoverable. Crofford v. Armstrong, 342 S.W.2d 607, 612 (Tex. App.—Dallas 1961, no writ). Attorney’s fees are not recoverable as actual damages in fraud cases, Morriss-Buick, 113 S.W.2d at 891, but may be recoverable as exemplary damages against the third-party defendant; see Fitz v. Toungate, 419 S.W.2d 708, 710 (Tex. App.—Austin 1967, writ ref’d n.r.e.).
“[A] separate and independent tort action for actual fraud and accompanying exemplary damages against one’s spouse do not exist in the context of a deprivation of community assets.” Schlueter, 975 S.W.2d at 589. If actual fraud is proved, the trial court must consider this fraud in making a just and right division of the community estate under Tex. Fam. Code § 7.009, as described above.
The independent tort action for actual fraud can be asserted against a nonspouse third-party defendant as well as against a spouse if the actual fraud involved the deprivation of the other spouse’s separate estate. See Schlueter, 975 S.W.2d at 590.
In the absence of fraud on the rights of the other spouse, a spouse has the right to control and dispose of community property subject to his sole management. Each spouse owns an undivided one-half interest in all community assets and funds regardless of which spouse has management and control. Massey v. Massey, 807 S.W.2d 391, 401 (Tex. App.—Houston [1st Dist.] 1991), writ denied, 867 S.W.2d 766 (Tex. 1993). The managing spouse may make moderate gifts for just causes to persons outside the community. Mazique v. Mazique, 742 S.W.2d 805, 808 (Tex. App.—Houston [1st Dist.] 1987, no writ). Factors to be considered in determining the fairness of such a gift, transfer, or expenditure are—
1.the relationship between the spouse making the gift, transfer, or expenditure and the recipient;
2.whether there were any special circumstances tending to justify the gift, transfer, or expenditure; and
3.whether the community funds used for the gift, transfer, or expenditure were reasonable in proportion to the community estate remaining.
In re Marriage of DeVine, 869 S.W.2d 415, 422 (Tex. App.—Amarillo 1993, writ denied).
The relationship between spouses is a fiduciary relationship, and the spouses are bound by that fiduciary duty in dealing with the community estate. Connell v. Connell, 889 S.W.2d 534, 541 (Tex. App.—San Antonio 1994, writ denied). It is not necessary that one spouse approve or agree with the dispositions made by the other spouse of that spouse’s special community property; however, a relationship of trust and confidence exists between spouses requiring that a spouse’s disposition of his special community property be fair to the other spouse. Massey, 807 S.W.2d at 402. A spouse’s disposition of the community property must be fair to the other spouse, and the managing spouse has the burden to show that his disposition of the property was fair. Massey, 807 S.W.2d at 402.
Spouses have also been held accountable for the disposing, wasting, or hiding of assets in order to defraud the other spouse of his interest in the property (see Reaney v. Reaney, 505 S.W.2d 338 (Tex. App.—Dallas 1974, no writ); Pride v. Pride, 318 S.W.2d 715 (Tex. App.—Dallas 1958, no writ); Swisher v. Swisher, 190 S.W.2d 382 (Tex. App.—Galveston 1945, no writ)), and for gifts and transfers to paramours (see Mazique, 742 S.W.2d at 805; Morrison v. Morrison, 713 S.W.2d 377 (Tex. App.—Dallas 1986, writ dism’d); Spruill v. Spruill, 624 S.W.2d 694 (Tex. App.—El Paso 1981, writ dism’d)).
The breach of a legal or equitable duty that violates the fiduciary relationship existing between spouses is termed fraud on the community, a judicially created concept based on the theory of constructive fraud. Any such conduct in the marital relationship is termed fraud on the community because, although not actually fraudulent, it has all the consequences and legal effects of actual fraud in that such conduct tends to deceive the other spouse or violate confidences that exist as a result of the marriage. In re Marriage of Moore, 890 S.W.2d 821, 827 (Tex. App.—Amarillo 1994, no writ).
Fraud on the community is not an independent tort but is instead a remedy for a deprivation of community assets to be considered as part of a just and right division of the community estate. See Tex. Fam. Code § 7.009(b)–(c); Schlueter v. Schlueter, 975 S.W.2d 584, 588 (Tex. 1998); see also Tex. Fam. Code § 7.001; Chu v. Hong, 249 S.W.3d 441, 444–45 (Tex. 2008).
A presumption of “constructive fraud,” that is, waste, arises when one spouse disposes of the other spouse’s interest in community property without the other’s knowledge or consent. Puntarelli v. Peterson, 405 S.W.3d 131, 137–38 (Tex. App.—Houston [1st Dist.] 2013, no pet.). The presumption may arise even when the other spouse has knowledge of the disposition, as long as that spouse did not also consent to the disposition. Dyer v. Dyer, No. 03-16-00753-CV, 2018 WL 2994439, at *6 (Tex. App.—Austin June 15, 2018, no pet.) (mem. op.). A finding of constructive fraud can be supported not only by evidence of specific transfers or gifts of community assets outside the community, but also by evidence that community funds are unaccounted for by the spouse in control of those funds. Miller v. Miller, No. 14-17-00293-CV, 2018 WL 3151241, at *6 (Tex. App.—Houston [14th Dist.] June 28, 2018, no pet.) (mem. op.). No dishonesty of purpose or intent to deceive must be established; such proof of subjective intent is required only for actual fraud on the community, as opposed to constructive fraud on the community. Puntarelli, 405 S.W.3d at 138. Once the presumption arises, the burden of proof then shifts to the disposing spouse to prove the fairness of the disposition of the other spouse’s one-half community ownership. Puntarelli, 405 S.W.3d at 138. A claim of constructive fraud is evaluated by looking to several factors, “including the size of the gift in relation to the total size of the community estate; the adequacy of the estate remaining to support the wife, the gift notwithstanding; the relationship of the donor to the donee; and whether special circumstances existed to justify the gift.” Barnett v. Barnett, 67 S.W.3d 107, 126 (Tex. 2001).
If fraud on the community is found, the trial court may accomplish a just and right division by awarding the wronged spouse an appropriate share of the community estate remaining after the actual or constructive fraud on the community, a money judgment in favor of the wronged spouse, or both. See Tex. Fam. Code § 7.009(c).
Although marriage may bring about a fiduciary relationship, such a relationship terminates in a contested divorce when the spouses each have independent attorneys and financial advisers. Parker v. Parker, 897 S.W.2d 918, 924 (Tex. App.—Fort Worth 1995, writ denied). But see Miller v. Miller, 700 S.W.2d 941 (Tex. App.—Dallas 1985, writ ref’d n.r.e.) (fiduciary duty does not expire on filing of divorce). Courts have recognized fraud on the community when the wrongful disposition of community property occurred during the divorce. Miller, 2018 WL 3151241, at *11.
Third-Party Fraud on Community: Although the court in Schlueter held that fraud on the community was not an independent cause of action in a divorce, it specifically declined to address whether a cause of action existed as to fraud on the community committed by third parties. Schlueter, 975 S.W.2d at 592. Since that opinion, the Texas Supreme Court has not addressed this issue. However, various appellate courts have, with the majority of those courts holding in favor of such a cause of action. See In re Burgett, 23 S.W.3d 124, 127 (Tex. App.—Texarkana 2000, orig. proceeding) (third-party actions involving fraud on community should not be severed and should be tried with, or before, divorce action); Mayes v. Stewart, 11 S.W.3d 440, 447–48 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (divorce case—cause of action for third-party fraud on community); Osuna v. Quintana, 993 S.W.2d 201, 207–08 (Tex. App.—Corpus Christi–Edinburg 1999, no pet.) (divorce case—cause of action for third-party fraud on community). But see Harper v. Harper, 8 S.W.3d 782, 783–84 (Tex. App.—Fort Worth 2000, pet. denied) (probate case—no cause of action for third-party fraud on community).
Nature of Cause of Action: An action for conversion of property is a tort. The tort grows out of the unlawful interference with possession of personal property, giving the owner a cause of action against the wrongdoer even though title to the property did not pass. Owens v. Grimes, 539 S.W.2d 387, 390 (Tex. App.—Tyler 1976, writ ref’d n.r.e.); John Hancock Mutual Life Insurance Co. v. Howard, 85 S.W.2d 986, 988 (Tex. App.—Waco 1935, writ ref’d).
The Supreme Court of Texas has defined conversion as unauthorized and wrongful assumption and exercise of dominion and control over another’s property in denial of or inconsistent with the owner’s rights. It is not necessary that there be a manual taking of the property in question. Waisath v. Lack’s Stores, 474 S.W.2d 444, 446–47 (Tex. 1971).
There must be an intent on the part of the defendant to assert some right in the property. Because wrongful intent is not essential, however, one may not escape liability by showing that he acted in good faith or under a mistaken belief about his rights. McVea v. Verkins, 587 S.W.2d 526, 531 (Tex. App.—Corpus Christi–Edinburg 1979, no writ). It is not necessary that the property be applied to the use of the wrongdoer or even to that of a third person. The controlling factor is the owner’s loss and not the benefit to the wrongdoer. American Surety Co. v. Hill County, 254 S.W. 241, 246 (Tex. App.—Dallas 1923), aff’d, 267 S.W. 265 (Tex. Comm’n App. 1924, judgm’t adopted). Conversion may also be direct or constructive. McVea, 587 S.W.2d at 530.
Generally, a demand for the return of the property and a refusal to return it are required to establish a conversion by a person who lawfully obtained possession of the involved property. However, a demand and refusal are not necessary (1) if possession was acquired wrongfully, (2) after the conversion has become complete, or (3) if it is shown that a demand would have been useless. An intent to do an act amounting to conversion of personal property is necessary in order to constitute a conversion. However, it is the act of conversion in and of itself and not the intention to convert that gives a right of action. Wrongful intent to convert another’s property is not an essential element of conversion, nor is it material to any issue involved in a suit for conversion except on the issue of exemplary damages. McVea, 587 S.W.2d at 531.
Defenses: Good faith and mistake of fact are not defenses to conversion. Adam v. Harris, 564 S.W.2d 152, 155 (Tex. App.—Houston [14th Dist.] 1978, writ ref’d n.r.e.). Recovery for conversion is not barred even if the plaintiff was in debt to the defendant, Jones v. City National Bank, 166 S.W. 442, 443 (Tex. App.—Fort Worth 1914, writ granted), or by the plaintiff’s authorizing the defendant to borrow money on the property, Hooks v. Brown, 348 S.W.2d 104, 120 (Tex. App.—Austin 1961, writ ref’d n.r.e.).
Conversion is an action for the protection of property rights. It has been held that a spouse may sue the other spouse when it is necessary for the protection of property rights. Trimble v. Farmer, 305 S.W.2d 157, 159 (Tex. 1957); Letcher v. Letcher, 421 S.W.2d 162, 166 (Tex. App.—San Antonio 1967, writ dism’d); Pride v. Pride, 318 S.W.2d 715, 722 (Tex. App.—Dallas 1958, no writ).
Damages: The measure of damages for conversion is the value of the property converted at the time of the conversion, with legal interest. If the conversion is attended with fraud, a willful wrong, or gross negligence, however, and the property converted is of changing or fluctuating value, the measure of damages is the highest market value of the property between the date of conversion and the filing of the suit. If the damages are definitely determinable, interest is recoverable as a matter of right from the date of the injury or loss. Imperial Sugar Co. v. Torrans, 604 S.W.2d 73, 74 (Tex. 1980) (per curiam). Additionally, a party requesting the return of converted property may recover money damages for the loss of use of the property during the period of detention. Adam, 564 S.W.2d at 155.
Exemplary damages are not allowed in ordinary conversion or if the conversion is made in good faith or by honest mistake. However, exemplary damages are allowed if the conversion is accompanied with fraud or malice. In determining exemplary damages, expenses in bringing the suit, including attorney’s fees, if properly pleaded and proved, may be recovered. See Earthman’s, Inc. v. Earthman, 526 S.W.2d 192, 208 (Tex. App.—Houston [1st Dist.] 1975, no writ). The existence of malice to support exemplary damages may not be necessary if the defendant’s acts are accompanied with fraud or other aggravating circumstances. Lack’s Stores v. Waisath, 479 S.W.2d 406, 408 (Tex. App.—Waco 1972, no writ).
Conversion in Family Law: Although rare, allegations of conversion do arise in family law. See Connell v. Connell, 889 S.W.2d 534, 540 (Tex. App.—San Antonio 1994, writ denied). It has been argued that conversion can exist in the family law setting only if the converted property is the separate property of the complaining spouse. However, conversion has been found in a case in which friends of the wife helped her sell a community-property car in violation of temporary orders enjoining the sale or other disposal of community property. Stevenson v. Koutzarov, 795 S.W.2d 313, 322–23 (Tex. App.—Houston [1st Dist.] 1990, writ denied).
Nature of Cotenancy: A cotenancy exists whenever two or more persons become vested with a mutual right to undivided possession of the same property. See Rippetoe v. Dwyer, 49 Tex. 498 (1878); McAllen v. Raphael, 32 S.W. 449 (Tex. App. 1895, no writ). The present right of possession is an essential element of cotenancy. Sparks v. Robertson, 203 S.W.2d 622, 623 (Tex. App.—Austin 1947, writ ref’d). Each cotenant has the right to be in possession of property in which he owns an interest. Todd v. Bruner, 365 S.W.2d 155, 160 (Tex. 1963).
To be a cotenant one must have title to the property in some manner, as by conveyance, inheritance, will, limitation, judgment, or by any other legal means. Reed v. Turner, 489 S.W.2d 373 (Tex. App.—Tyler 1972, writ ref’d n.r.e.). The relationship of cotenancy does not exist among remaindermen or between them and the life tenant, because the present right of possession essential to cotenancy does not exist. Sparks, 203 S.W.2d at 624.
Rights and Duties: The rights and interests of cotenancy are equal unless a contrary intention appears in the instrument creating the cotenancy. See Wooley v. West, 391 S.W.2d 157, 159 (Tex. App.—Tyler 1965, writ ref’d n.r.e.). When two or more people join in the purchase of property, in the absence of an agreement to the contrary, they will hold titles in the proportion in which each furnished consideration for the purchase. Jackson v. Jackson, 258 S.W. 231, 232 (Tex. App.—Waco 1924, no writ). A cotenant who alleges a greater contribution than a proportionate share has the burden of showing the amount of the contribution. Dessommes v. Dessommes, 505 S.W.2d 673, 679 (Tex. App.—Dallas 1973, writ ref’d n.r.e.). Each cotenant is entitled to possession, and possession by one cotenant is usually not adverse to all other cotenants in the absence of some type of repudiation, notice, or ouster. Horlock v. Horlock, 614 S.W.2d 478, 481 (Tex. App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.).
All cotenants have a duty to preserve the common property. Additionally, all cotenants are liable for their proportionate shares of all necessary costs and expenses in defending title and possession and for care of the property. If one cotenant makes an outlay for proper and necessary preservation of the common property, he is entitled to be reimbursed by the other cotenants in accordance with their separate interests. Allen v. Allen, 363 S.W.2d 312, 316 (Tex. App.—Houston 1962, no writ).
Generally, and in the absence of express authority, a cotenant is neither a partner with nor an agent of another cotenant and cannot act for the other cotenant. Horlock, 614 S.W.2d at 485.
Actions by and against Cotenants: Actions by cotenants against third parties and by third parties against cotenants generally are governed by the principles applied to other actions. For example, one cotenant may seek injunctive relief to preserve the property. See Baton v. Key Production Co., 315 S.W.2d 59 (Tex. App.—Texarkana 1958, writ ref’d n.r.e.). One cotenant may join the other cotenants as either parties plaintiff or parties defendant in order to determine all matters affecting the cotenancy. See Arrington v. Southern Pine Lumber Co., 16 S.W.2d 166 (Tex. App.—Texarkana 1929, no writ).
However, in any action for an accounting and to recover costs and profits accruing to the common property or for damages to the common property, all cotenants must be joined in the suit. Failure to do so renders the suit abatable. Scott v. Williams, 607 S.W.2d 267, 271 (Tex. App.—Texarkana 1980, writ ref’d n.r.e.); Hicks v. Southwestern Settlement & Development Corp., 188 S.W.2d 915, 930 (Tex. App.—Beaumont 1945, writ ref’d w.o.m.).
Termination: A cotenancy may be terminated in a variety of ways, such as by dividing the property in kind or by having the property sold if it is not subject to partition in kind. Corn v. First Texas Joint Stock Land Bank, 131 S.W.2d 752, 757 (Tex. App.—Fort Worth 1939, writ ref’d). A cotenant may even construct improvements and establish a homestead on land held in common, but these rights are subservient to the rights of the other cotenants to use the whole and to demand a partition. Becker v. Becker, 623 S.W.2d 757, 759 (Tex. App.—Houston [1st Dist.] 1981, no writ).
Application to Family Law Cases: When the community estate and one or both separate estates of the spouses contribute to the purchase of an asset initially, each estate owns the asset in proportion to each spouse’s contribution to the purchase price. Cook v. Cook, 679 S.W.2d 581, 583 (Tex. App.—San Antonio 1984, no writ). This is different from the situation in which one estate makes the initial payment for purchase and the other estate makes payment on it. In that event, a claim exists for either economic contribution or reimbursement. When different estates hold title, the debt is charged against the community interest unless the creditor agrees to look only to the separate estate of one of the spouses.
§ 3.70Orders against Financial Institution
Though Family Code section 6.503 governs the procedure for obtaining a temporary restraining order against a party to a divorce, rule 680 of the Texas Rules of Civil Procedure must be followed to obtain a restraining order against a financial institution during a divorce. The rule provides that it must clearly appear from specific facts shown by affidavit or verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing held. Tex. R. Civ. P. 680.
Obtaining a temporary injunction against a third party in a divorce proceeding requires a supporting affidavit. Tex. R. Civ. P. 682. Each order granting an injunction and every restraining order must set forth the reason for its issuance, be specific in its terms, and describe in reasonable detail and not by reference to the pleadings or other documents the act or acts sought to be restrained. The restraining order or injunction binds only the parties to the action; their officers, agents, servants, employees and attorneys; and those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. Tex. R. Civ. P. 683.
Additionally, and contrary to the Family Code’s provisions, a temporary restraining order or temporary injunction against a third party to a divorce proceeding requires the posting of a bond with two or more good and sufficient sureties as security if the order or injunction is dissolved in whole or in part. Tex. R. Civ. P. 684.
The trial court has broad discretion in issuing a temporary restraining order and will generally do so if the pleadings and evidence present a probable right and probable injury. The applicant is not required to establish that he will finally prevail in the litigation. Vargas v. Mott, 499 S.W.2d 905, 906 (Tex. App.—Houston [1st Dist.] 1973, writ ref’d n.r.e.).
§ 3.71Disregarding Corporate Fiction
Generally: A corporation is regarded as a separate legal entity, and courts will not disregard the corporate fiction and hold individual officers, directors, or stockholders liable for the obligations of the corporation except when it appears that the individuals are using the corporate entity as a sham to perpetrate fraud, avoid personal liability, or avoid the effect of statutes and in a few other exceptional situations. Torregrossa v. Szelc, 603 S.W.2d 803, 804 (Tex. 1980); Pace Corp. v. Jackson, 284 S.W.2d 340, 351 (Tex. 1955).
The Texas Business Organizations Code provides that, in the absence of an express agreement or an obligation based on statute, a shareholder is not liable to the corporation or its obligees with respect to (1) the shares except for the full amount of the consideration; (2) any contractual obligation of the corporation on the basis of alter ego or on the basis of actual or constructive fraud, a sham to perpetrate a fraud, or a similar theory unless the obligee shows that the shareholder caused the corporation to be used for the purpose of perpetrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the shareholder; or (3) any obligation of the corporation on the basis of the failure of the corporation to observe any corporate formality. Tex. Bus. Orgs. Code § 21.223(a), (b).
In certain defined circumstances, the courts will disregard the corporate fiction under either the doctrine of alter ego or another means of piercing the corporate veil. These doctrines are not substantive causes of action. See In re Starflite Management Group, Inc., 162 S.W.3d 409, 414 (Tex. App.—Beaumont 2005, orig. proceeding) (per curiam). Rather, such doctrines are more in the nature of a remedy and operate to enlarge the potential sources for recovery.
Alter ego, which applies if there is such unity between corporation and individual that the separateness of the corporation has ceased and holding only the corporation liable would result in injustice, is one basis for disregarding the corporate fiction. Other situations in which the corporate fiction may be disregarded even though corporate formalities have been observed and corporate and individual properties have been kept separate include those in which the corporation is used as a means of perpetrating fraud; the corporate fiction is used to evade an existing legal obligation, to achieve or perpetrate monopoly, or to circumvent a statute; or the corporate fiction is invoked to protect crime or justify a wrong. Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex. 1986); see also Zisblatt v. Zisblatt, 693 S.W.2d 944, 950 (Tex. App.—Fort Worth 1985, writ dism’d).
In exceptional situations the alter ego doctrine and the doctrine of piercing the corporate veil have been used in divorce cases. A finding of alter ego sufficient to justify piercing in the divorce context requires the trial court to find (1) unity between the corporation and the spouse such that the separateness of the corporation has ceased to exist and (2) the spouse’s improper use of the corporation damaged the community estate beyond that which might be remedied by a claim for reimbursement. In the divorce context, alter ego and piercing the corporate veil have been termed “reverse piercing.” This “reverse piercing” allows the court to characterize corporate assets that would otherwise be the separate property of one spouse as community property. Lifshutz v. Lifshutz, 61 S.W.3d 511 (Tex. App.—San Antonio 2001, pet. denied).
The rationale that allows the corporate fiction to be disregarded is potentially applicable also to the trust context when a trustee conducts himself as his own alter ego or that of the settlor or beneficiary. See Jimmy Vaught, Dealing with Unusual Trusts, State Bar of Tex. Prof. Dev. Program, New Frontiers in Marital Property Course 2, 2.1 (2007) (citing In re Marriage of Burns, 573 S.W.2d 555, 557 (Tex. App.—Texarkana 1978, writ dism’d)).
A corporate veil may be pierced on the basis of alter ego only in extraordinary circumstances. If an individual controls and manages a corporation in such a manner that its affairs are indistinguishable from the individual’s personal affairs and it has thus become inseparable from the individual, alter ego may be available to pierce the corporate veil. Such a situation may not be inferred simply because a person is a major stockholder or even the sole stockholder of the corporation. Keith v. Woodul, 616 S.W.2d 375, 377 (Tex. App.—Texarkana 1981, no writ). There must be such unity between the individual and the corporation that the separateness of the individual from the corporation has ceased to exist. Humphrey v. Humphrey, 593 S.W.2d 824, 826 (Tex. App.—Houston [14th Dist.] 1980, writ dism’d). Additionally, the party seeking relief must be able to demonstrate that the spouse’s inappropriate use of the corporation resulted in damage to the community estate that cannot be remedied by reimbursement. Lifshutz, 61 S.W.3d at 517; Boyo v. Boyo, 196 S.W.3d 409 (Tex. App.—Beaumont 2006, no pet.).
Pleadings and Burden of Proof: The alter ego theory must be pleaded and proved. Keith, 616 S.W.2d at 377. The party pleading alter ego has the burden of proof. Torregrossa, 603 S.W.2d at 804.
To meet the burden of proof in the divorce context, the evidence must establish (1) unity between the separate-property corporation and the spouse to the extent that there is no separateness, and (2) the spouse’s use of the corporation has resulted in damage to the community that cannot be cured through reimbursement. Lifshutz, 61 S.W.3d at 517.
Characterization: If the corporate veil is pierced, the corporate assets will be presumed to be community property, subject to division by the court, if no separate-property claim has been preserved. See Zisblatt, 693 S.W.2d at 955.
COMMENT: The attorney defending an alter ego case in a jury trial should obtain a pretrial ruling on whether the trial will be bifurcated, with the possibility of a second trial on characterization of the underlying corporate assets. If the trial is not bifurcated, evidence not only about the alter ego claim but also about characterization of the underlying assets, possibly including a tracing claim, must be presented at the same time.
Parentage actions are the subject of chapter 54 of this manual.
Nature of Cause of Action: Invasion of privacy is a willful tort, and the unwarranted invasion of the right of privacy constitutes a legal injury for which a remedy will be granted. Billings v. Atkinson, 489 S.W.2d 858, 861 (Tex. 1973).
The right of privacy has been defined as the right to be free from the unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities. Billings, 489 S.W.2d at 859; see also Moore v. Charles B. Pierce Film Enterprises, 589 S.W.2d 489, 490 (Tex. App.—Texarkana 1979, writ ref’d n.r.e.).
The right of privacy may be violated in any one of three ways: (1) intrusion on the plaintiff’s solitude or seclusion or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; and (3) appropriation, to the defendant’s advantage, of the plaintiff’s name or likeness. See Cain v. Hearst Corp., 878 S.W.2d 577, 578 (Tex. 1994).
The elements for intrusion on a person’s seclusion, solitude, and private affairs require that there be an intentional intrusion on the solitude or seclusion of the person or into his private affairs or concerns that is highly offensive to a reasonable person. This type of invasion of privacy is associated with either a physical invasion of a person’s property or eavesdropping on another’s conversation with the aid of wiretaps or microphones or by spying. Gill v. Snow, 644 S.W.2d 222, 224 (Tex. App.—Fort Worth 1982, no writ), overruled on other grounds by Cain, 878 S.W.2d 577; Gonzales v. Southwestern Bell Telephone Co., 555 S.W.2d 219, 221 (Tex. App.—Corpus Christi–Edinburg 1977, no writ); see also Tex. Civ. Prac. & Rem. Code § 123.002.
To show an invasion of privacy by the public disclosure of embarrassing private facts, the matters publicized must be those that would be highly offensive to a reasonable person and not of legitimate concern to the public. Gill, 644 S.W.2d at 224.
To prove invasion of privacy involving the appropriation, to the defendant’s advantage, of the plaintiff’s name or likeness, it must be shown that the plaintiff’s personal identity has been appropriated by the defendant for some advantage, usually of a commercial nature, to the defendant. See National Bank of Commerce v. Shaklee Corp., 503 F. Supp. 533 (W.D. Tex. 1980); Kimbrough v. Coca-Cola/USA, 521 S.W.2d 719 (Tex. App.—Eastland 1975, writ ref’d n.r.e.).
Any of the above three types of invasion of privacy will give rise to a cause of action. However, the publicizing of information that was part of a public record will not give rise to a cause of action for invasion of privacy. Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668, 684 (Tex. 1976), cert. denied, 430 U.S. 931 (1977); Gill, 644 S.W.2d at 224.
Parties: The right of privacy is purely personal and therefore terminates on the death of the person whose privacy is invaded. An action for the invasion of privacy cannot be maintained by a relative of the person concerned, unless that relative is himself brought into unjustifiable publicity. Moore, 589 S.W.2d at 491.
Defenses: The defenses to an action for the invasion of privacy are consent and waiver. See In re Bates, 555 S.W.2d 420, 430 (Tex. 1977); Kimbrough, 521 S.W.2d at 723.
Damages: Invasion of privacy is a willful tort that constitutes a legal injury, and damages for mental suffering are recoverable without the necessity of showing actual physical injury, because the injury for the willful invasion of the right of privacy is essentially mental and subjective, not actual harm done to the plaintiff’s body. Billings, 489 S.W.2d at 861.
Exemplary damages are also recoverable in an action for invasion of privacy. National Bonding Agency v. Demeson, 648 S.W.2d 748, 751 (Tex. App.—Dallas 1983, no writ).
Family Law Application: It is not uncommon for a party in a family law case to wiretap, audiotape, or videotape the party’s spouse, the spouse’s significant other, or their children. This area is fraught with exposure to civil and criminal liability for both the client and the attorney. The attorney should review (1) title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, codified at title 18 of the United States Code sections 2510 through 2521; (2) Texas Penal Code article 16.02; (3) Texas Code of Criminal Procedure article 18.20; and (4) Texas Civil Practice and Remedies Code chapter 123. In summary, any use of an electronic, mechanical, or other device to intentionally intercept a wire, oral, or electronic communication or to use or disclose such interception is prohibited. Some commentators have opined that it is unlawful for attorneys to even listen to a tape given to them by a client. Generally, the interception is legal if one party to the communication has consented and both parties are located in Texas. See www.rcfp.org/reporters-recording-guide/ for the laws in other jurisdictions regarding the taping of telephone conversations. A continuing controversy exists about whether one spouse has immunity to intercept the other spouse’s communications if they reside in the same home. At least two Texas appellate courts have held that there is no immunity and that interspousal interceptions violate both federal and Texas statutes. Collins v. Collins, 904 S.W.2d 792, 796–97 (Tex. App.—Houston [1st Dist.] 1995), writ denied per curiam, 923 S.W.2d 569 (Tex. 1996); Turner v. PV International Corp., 765 S.W.2d 455, 470 (Tex. App.—Dallas 1988), writ denied per curiam, 778 S.W.2d 865 (Tex. 1989). See the discussion at section 2.8:8 in this manual.
There are no federal or state statutes that regulate video surveillance. However, if the tape has audio, the same rules detailed above probably apply. Additionally, there may be a common-law right of recovery for willful invasion of privacy or intentional infliction of emotional distress. See Boyles v. Kerr, 855 S.W.2d 593, 603 (Tex. 1993) (citing Billings, 489 S.W.2d at 860–61).
In this area, attorneys are held to a higher standard. A Texas attorney may make an undisclosed recording of the attorney’s telephone conversations with clients or third parties only if certain requirements are met. See State Bar of Texas, Op. 575 (2006). See the discussion at section 2.8:8.
§ 3.74Uniform Fraudulent Transfer Act
Generally: The Uniform Fraudulent Transfer Act, Tex. Bus. & Com. Code §§ 24.001–.013, protects creditors with a claim against a debtor from the debtor’s transfer of assets to third parties and applies to transfers made or debts incurred on or after September 1, 1987. “Claim” means a right to payment or property, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured. Tex. Bus. & Com. Code § 24.002(3). The term transfer is broadly defined to include a wide variety of methods by which a debtor may dispose of an asset. See Tex. Bus. & Com. Code § 24.002(12).
Transfer Made with Intent to Avoid Creditors: A transfer made or obligation incurred by a debtor is fraudulent if he made the transfer or incurred the obligation with actual intent to hinder, delay, or defraud any creditor. Tex. Bus. & Com. Code § 24.005(a)(1). Such a transfer is not voidable against a person who took the transfer in good faith and for a reasonably equivalent value or against any subsequent transferee or obligee. Tex. Bus. & Com. Code § 24.009(a).
Transfer Made without Receiving Reasonably Equivalent Value: A transfer made or obligation incurred by a debtor is fraudulent if he made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and he was engaged or was about to engage in a business or transaction for which his remaining assets were unreasonably small in relation to the business or transaction or he intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due. Tex. Bus. & Com. Code § 24.005(a)(2). Such a transfer is not voidable if it results from the enforcement of a security interest. Tex. Bus. & Com. Code § 24.009(e)(2).
A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if he made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and he was insolvent at that time or became insolvent as a result of the transfer or obligation. Tex. Bus. & Com. Code § 24.006(a). A debtor is “insolvent” if his debts are greater than his assets; he is presumed to be insolvent if he is generally not paying his debts as they become due. Tex. Bus. & Com. Code § 24.003(a), (b). Such a transfer is not voidable if it results from the enforcement of a security interest. Tex. Bus. & Com. Code § 24.009(e)(2).
Preferential Transfer to Insider: A transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the transfer was made to an insider for an antecedent debt, the debtor was insolvent at that time, and the insider had reasonable cause to believe that the debtor was insolvent. Tex. Bus. & Com. Code § 24.006(b). An “insider” includes a relative of the debtor or a corporation controlled by the debtor. Tex. Bus. & Com. Code § 24.002(7)(A). Such a transfer is not voidable if it results from the enforcement of a security interest or if it is made in the ordinary course of business of the debtor and the insider. Tex. Bus. & Com. Code § 24.009(e)(2), (f)(2). The term insider is defined by the Act in circumstances when a debtor is an individual, a corporation, a partnership, an affiliate, or a managing agent of the debtor. See Tex. Bus. & Com. Code § 24.002(7). A finding of the debtor as an “insider” is not limited to the statutory definition in the Act, as the definition is provided for purposes of exemplification. Putman, M.D.P.A. Money Purchase Pension Plan v. Stephenson, 805 S.W.2d 16, 18–19 (Tex. App.—Dallas 1991, no writ) (person found to have been “insider” although he did not fit strictly within statutory definition of term because of personal knowledge of business, financial, and personal affairs of spouses).
Transfers falling under section 24.005 may be challenged by a creditor whose claim arose before or within a reasonable time after the transfer. Tex. Bus. & Com. Code § 24.005(a). Transfers falling under section 24.006 may be challenged only by a creditor whose claim arose before the transfer. Tex. Bus. & Com. Code § 24.006. Because a spouse’s community-property rights are vested when property is acquired, it would seem that a spouse challenging a transfer of community property would be a present creditor and could challenge both section 24.005 and 24.006 transfers.
Creditor: A “creditor” is a person, including a spouse, who has a claim. Tex. Bus. & Com. Code § 24.002(4). Such a claim may presumably be a spouse’s interest in the marital estate. See Tex. Bus. & Com. Code § 24.002(3). Although the definition of “creditor” in the Act includes a spouse who has a claim for property fraudulently transferred by the other spouse, the transfer must be made to intentionally defraud the spouse, cause the transferor to become insolvent, or leave the transferor with “unreasonably small” assets or debts beyond his ability to pay. In the absence of such evidence, the Act does not apply. Thomas v. Casale, 924 S.W.2d 433, 437 (Tex. App.—Fort Worth 1996, writ denied).
Remedies: In an action for relief against a transfer or obligation, a creditor may obtain (1) avoidance of the transfer or obligation to the extent necessary to satisfy the creditor’s claim, (2) an attachment of the asset transferred or other property of the transferee, (3) an injunction against further disposition by the debtor or the transferee, (4) appointment of a receiver to take charge of the asset transferred or of other property of the transferee, or (5) any other relief the circumstances may require. If a creditor has obtained a judgment against the debtor, the creditor may levy execution on the asset transferred or its proceeds if the court so orders. Tex. Bus. & Com. Code § 24.008. An award of the entire community interest in real property, free of the outstanding obligation, to a “creditor” spouse is proper as “any other relief the circumstances may require.” Putman, 805 S.W.2d at 19–20.
The court may award costs and reasonable attorney’s fees as are equitable and just. Tex. Bus. & Com. Code § 24.013.
Limitations: A cause of action on behalf of a spouse, minor, or ward with respect to a fraudulent transfer or obligation is extinguished unless the action, if brought under section 24.005(a) or 24.006(a), is brought within two years after the cause of action accrues or, if later, within one year after the transfer or obligation was or could reasonably have been discovered by the claimant. If the action is brought under section 24.006(b), it is extinguished unless it is brought within one year after the date the transfer was made. Tex. Bus. & Com. Code § 24.010(b).
A cause of action not on behalf of a spouse, minor, or ward with respect to a fraudulent transfer or obligation is extinguished unless brought (1) under section 24.005(a)(1) within four years after the transfer was made or the obligation was incurred or, if later, within one year after the transfer or obligation was or could reasonably have been discovered by the claimant; (2) under section 24.005(a)(2) or 24.006(a) within four years after the transfer was made or the obligation was incurred; or (3) under section 24.006(b) within one year after the transfer was made. Tex. Bus. & Com. Code § 24.010(a).
A creditor’s disabilities that toll the statute if existing when the period begins are the creditor’s being under the age of eighteen years, regardless of marital status, and the creditor’s being of unsound mind. Tex. Bus. & Com. Code § 24.010(c).
Generally: Trusts may be divided into two classes: express or implied. Hereford Land Co. v. Globe Industries, 387 S.W.2d 771, 775 (Tex. App.—Tyler 1965, writ ref’d n.r.e.). An express trust is a fiduciary relationship with respect to property that arises as a manifestation by the settlor of an intention to create the relationship and that subjects the person holding title to the property to equitable duties to deal with the property for the benefit of another person. Tex. Prop. Code § 111.004(4). A trust in either real or personal property is enforceable only if there is written evidence of the trust’s terms bearing the signature of the settlor or the settlor’s authorized agent. A trust consisting of personal property, however, is enforceable if created by (1) a transfer of the trust property to a trustee who is neither settlor nor beneficiary if the transferor expresses simultaneously with or before the transfer the intention to create a trust or (2) a declaration in writing by the owner of property that the owner holds the property as trustee for another person or for the owner and another person as a beneficiary. Tex. Prop. Code § 112.004.
Resulting and constructive trusts are classified as trusts created by operation of law or implied trusts imposed to prevent unjust enrichment. Mills v. Gray, 210 S.W.2d 985, 987 (Tex. 1948); Davis v. Sheerin, 754 S.W.2d 375, 387 (Tex. App.—Houston [1st Dist.] 1988, writ denied). If title to property is taken in the name of someone other than the person who advances the purchase price, a resulting trust is created in favor of the payor. Tricentral Oil Trading, Inc. v. Annesley, 809 S.W.2d 218, 220 (Tex. 1991) (per curiam). It is an “intent trust” employed if trust property has been used for a special purpose that has terminated or become frustrated so that the law implies a trust for the equitable owner of the property. The trustee of a resulting trust stands in a fiduciary relationship with the beneficiary insofar as the trust property is concerned. Tricentral Oil Trading, 809 S.W.2d at 220. The doctrine of resulting trust is invoked to prevent unjust enrichment, and equitable title will rest with the party furnishing the consideration. Nolana Development Ass’n v. Corsi, 682 S.W.2d 246, 250 (Tex. 1984).
A resulting trust differs from an express trust in the manner of its creation and the nature and extent of the duties of the trustee and is a form of an implied trust—one that arises from what the parties did, not from what they said. Hereford Land Co., 387 S.W.2d at 775. A resulting trust arises not from an agreement between the parties but as a matter of law. Equitable Trust Co. v. Roland, 644 S.W.2d 46, 51 (Tex. App.—San Antonio 1982, no writ).
Creation of Resulting Trust: A resulting trust can be created in several ways. First, it can arise if the purchase money for property is paid by one person but legal title is placed in another. See Crume v. Smith, 620 S.W.2d 212 (Tex. App.—Tyler 1981, no writ). Specifically, a resulting trust arises by operation of law if title is conveyed to one person but the purchase price or a portion thereof is paid by another. The parties are presumed to have intended that the grantee hold title to the use of the party who paid the purchase price and whom equity deems to be the true owner. The trust arises out of the transaction and must arise at the time title passes. Cohrs v. Scott, 338 S.W.2d 127, 130 (Tex. 1960). There can be no purchase-money resulting trust if there is no showing that a party seeking to be the beneficiary of such a trust paid any consideration for the purchase of the property. Dorbandt v. Bailey, 453 S.W.2d 205, 208–09 (Tex. App.—Tyler 1970, writ ref’d n.r.e.).
A resulting trust can arise if property is taken in trust for some special purpose that later fails or is frustrated; the law will imply a trust for the equitable owner of the property, rather than the legal titleholder. A resulting trust must arise from the transaction itself and at the very time the deed is taken and legal title vested in the grantee. Uriarte v. Petro, 606 S.W.2d 22, 24–25 (Tex. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.).
The rule that a purchase-money resulting trust must arise at the time of passage of title to the resulting trustee refers to the passage of the legal title, as distinguished from the equitable title. As long as the purchase price of the land remains unpaid, the purchaser has only an equitable right with regard to the land contract; the purchaser obtains equitable title only when he has fully performed under the contract. Atkins v. Carson, 467 S.W.2d 495, 500 (Tex. App.—San Antonio 1971, writ ref’d n.r.e.).
A resulting trust can also arise if a grantor, without consideration, conveys property to a grantee under circumstances that do not constitute a gift. Under such circumstances, equity presumes an intention of the parties that the beneficial title is to remain in the grantor and that the grantee holds the property for the grantor’s benefit. Murphy v. Johnson, 439 S.W.2d 440, 444 (Tex. App.—Houston [1st Dist.] 1969, no writ); Hereford Land Co., 387 S.W.2d at 775. However, a presumption of gift arises in such a situation if the conveyance is by a parent to a child or similar grantee. See Somer v. Bogart, 749 S.W.2d 202, 204 (Tex. App.—Dallas), writ denied per curiam, 762 S.W.2d 577 (Tex. 1988).
A trust results in favor of the community if property is purchased with community funds and title is taken in the name of one spouse only or in the name of some third person. Miller v. Miller, 285 S.W. 837 (Tex. App.—San Antonio 1926, writ dism’d w.o.j.).
If separate funds of one spouse are used to purchase property in the other spouse’s name only, a resulting trust arises, Ford v. Simpson, 568 S.W.2d 468, 470 (Tex. App.—Waco 1978, no writ), absent some agreement to the contrary.
Creation of Constructive Trust: In contrast, a constructive trust is implied irrespective of, and even contrary to, any implied intention of the parties. Mills, 210 S.W.2d at 987; Davis, 754 S.W.2d at 387. A constructive trust is imposed by law because the person holding the title to property would profit by a wrong or would be unjustly enriched if he were permitted to keep the property. Omohundro v. Matthews, 341 S.W.2d 401, 405 (Tex. 1960); Davis, 754 S.W.2d at 387. The equitable remedy of constructive trust is broad and flexible. Because it is an equitable remedy, a court has discretion whether to impose a constructive trust. Hoggett v. Brown, 971 S.W.2d 472, 494 (Tex. App.—Houston [14th Dist.] 1997, pet. denied).
A constructive trust arises “where a conveyance is induced on the agreement of a fiduciary or confidant to hold in trust for a reconveyance or other purpose, where the fiduciary or confidential relationship is one upon which the grantor justifiably can and does rely and where the agreement is breached.” Mills, 210 S.W.2d at 988. Because the breach of the agreement is an abuse of the confidence, it is not necessary to show fraud or intent not to perform the agreement when made. The tendency of the courts is to construe the term confidence or confidential relationship liberally in favor of the confider and against the confidant, for the purpose of raising a constructive trust on a violation or betrayal thereof. A parent and child, grandparent and child, or brother and sister relationship is not intrinsically one of confidence but, under certain circumstances, involves a confidence the abuse of which gives rise to a constructive trust in accordance with the terms of an agreement. Mills, 210 S.W.2d at 988.
Statute of Frauds and Burden of Proof: The statute of frauds is not a barrier to the use of parol evidence to establish a purchase-money resulting trust. Atkins, 467 S.W.2d at 500.
The burden of proof rests on the party who pleads a resulting trust. Proof of a resulting or constructive trust must be clear, certain, and conclusive. Uriarte, 606 S.W.2d at 24. If a transfer of property is made to one person and another person seeks to enforce a resulting trust in his favor on the ground that he paid the purchase price, the person alleging the resulting trust has the burden of proving by clear and convincing evidence that he paid the purchase price. Carson v. White, 456 S.W.2d 212, 215 (Tex. App.—San Antonio 1970, writ ref’d n.r.e.).
Statute of Limitations: The statute of limitations begins to run only from the date of repudiation by the trustee. See Sohio Petroleum Co. v. Jurek, 248 S.W.2d 294, 297 (Tex. App.—Fort Worth 1952, writ ref’d n.r.e.). A beneficiary of a resulting trust is not barred from enforcing the trust merely by the lapse of time. It is only when the trustee under a resulting trust repudiates the trust to the beneficiary’s knowledge that the beneficiary may be barred by laches from enforcing the trust. Atkins, 467 S.W.2d at 501.
If the trustee of a resulting trust in breach of the trust transfers trust property to a bona fide purchaser, however, the transferee takes the property free of the resulting trust. Equitable Trust, 644 S.W.2d at 52.
§ 3.76Breach-of-Contract and Rescission Claims
Generally, in Texas, courts interpret premarital agreements like other written contracts. In re Marriage of I.C. & Q.C., 551 S.W.3d 119, 122 (Tex. 2018). A party who entered into a premarital agreement or other property agreement may sue for breach of contract against the spouse if the spouse fails to satisfy the terms of the agreement. See In re Marriage of I.C. & Q.C., 551 S.W.3d at 123.
A party may also seek rescission of the agreement if the agreement provides that a breach of a term would nullify the entire agreement and result in property distribution under the normal rules. See In re Marriage of I.C. & Q.C., 551 S.W.3d at 123–24. Rescission is not a separate cause of action; it “is an equitable remedy that extinguishes legally valid contracts that must be set aside because of fraud, mistake, or other reasons in order to avoid unjust enrichment.” In re Marriage of I.C. & Q.C., 551 S.W.3d at 125 (J. Lehrman concurring, quoting Cantu v. Guerra & Moore, Ltd., 328 S.W.3d 1, 8 (Tex. App.—San Antonio 2009, no pet.)). Rescission is typically available as a substitute for monetary damages when such damages would be inadequate. In re Marriage of I.C. & Q.C., 551 S.W.3d at 125 (J. Lehrman concurring, citing Lauret v. Meritage Homes of Texas, LLC, 455 S.W.3d 695, 700 (Tex. App.—Austin 2014, no pet.)). A petition for rescission of the agreement can trigger penalty clauses in an agreement set up to discourage a party from seeking to invalidate the agreement, even if pleaded as alternative relief and even if the other party has breached the contract. See In re Marriage of I.C. & Q.C., 551 S.W.3d at 124–25. Texas law disfavors equitable exceptions to the enforcement of contracts as written. In re Marriage of I.C. & Q.C., 551 S.W.3d at 124. Courts will not rewrite agreements to insert provisions parties could have included or to imply restraints for which they have not bargained. In re Marriage of I.C. & Q.C., 551 S.W.3d at 124.
[Sections 3.77 through 3.80 are reserved for expansion.]
Any party may intervene, subject to being stricken out by the court for sufficient cause on the motion of the opposite party. Tex. R. Civ. P. 60. Filing, notice, and service on other parties are controlled by the general provisions in rules 21 and 21a.
Although a grandparent or other person may not file an original suit requesting possessory conservatorship, the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit affecting the parent-child relationship filed by a person authorized to do so under Family Code chapter 102 if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child’s physical health or emotional development. Tex. Fam. Code § 102.004(b). Intervention in a suit affecting the parent-child relationship is discussed in section 44.8 in this manual. For discussion of who may file an original suit, see chapter 40.
An attorney may seek to recover attorney’s fees by intervening in the title 1 or title 5 suit. See section 20.32 in this manual.
Third parties, creditors, or other persons asserting a claim against the petitioner or the respondent may intervene in the suit. See Tex. R. Civ. P. 60.
[Sections 3.85 through 3.90 are reserved for expansion.]
The following website contains information relating to the topic of this chapter:
State-by-state guide to taping phone calls and in-person conversations (§ 3.73)
www.rcfp.org/reporters-recording-guide/