Miscellaneous Litigation
A bill of review is an independent action to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal. Although it is an equitable proceeding, the fact that an injustice has occurred is not sufficient to justify relief by bill of review. If a petitioner has ignored available legal remedies, a petition for bill of review will not be granted. Wembley Investment Co. v. Herrera, 11 S.W.3d 924, 926–27 (Tex. 1999) (per curiam). If a bill of review is dismissed without prejudice, the dismissal does not bar the filing of a second bill of review on the basis of res judicata. Barnes v. Deadrick, 464 S.W.3d 48, 54 (Tex. App.—Houston [1st Dist.] 2015, no pet.).
The filing of a restricted appeal, however, is not a prerequisite to the filing of a bill of review. There are only three prerequisites for the filing of a bill of review: (1) a meritorious defense, (2) that was not made due to fraud, accident, or wrongful act by an opponent or official mistake by a clerk, and (3) unmixed with any fault or negligence of the party filing the bill. Failure to file a restricted appeal could be relevant only to the last requirement, and then only if it constituted fault or negligence. If a motion to reinstate, motion for new trial, or direct appeal is available, it is hard to imagine any case in which failure to pursue one of them would not be negligence. But the same cannot be said about choosing to appeal by bill of review rather than a restricted appeal, for several reasons. First, a bill of review allows trial courts to rectify their own errors, eliminating the need for lengthy appellate review. Second, all facts may be considered, not just those appearing on the face of the record. Third, discovery is available to find out what all the facts are. Finally, it avoids the need to follow both avenues of appeal seriatim. A party is not “ignoring” its remedies when it chooses one appellate avenue rather than another. Gold v. Gold, 145 S.W.3d 212 (Tex. 2004) (per curiam).
As a direct attack, the bill must be brought in the court in which the judgment was rendered. Dunklin v. Land, 297 S.W.2d 360, 362 (Tex. App.—Eastland 1956, no writ). Once a bill of review is granted, all subsequent filings should be made in the bill-of-review proceeding and not in the prior case. See Alaimo v. U.S. Bank Trust National Ass’n, 551 S.W.3d 212, 216 (Tex. App.—Fort Worth 2017, no pet.) (when bill of review is granted, parties proceed to final judgment on merits of underlying claims in bill-of-review proceeding, not in underlying case in which judgment was vacated); Hartford Underwriters Insurance v. Mills, 110 S.W.3d 588, 590 (Tex. App.—Fort Worth 2003, no pet.) (citing State v. 1985 Chevrolet Pickup Truck, 778 S.W.2d 463, 465 (Tex. 1989) (per curiam)) (when trial court grants bill of review and sets aside judgment in prior case, subsequent trial on merits of prior case occurs in same proceeding as trial on bill of review). Any party to a prior proceeding has standing to bring the bill of review. Durham v. Barrow, 600 S.W.2d 756, 760 (Tex. 1980). All parties who are interested in the original judgment and whose interest may be directly or materially affected must be named as parties. Hunt v. Ramsey, 345 S.W.2d 260, 264 (Tex. 1961).
Because the domestic relations office is not an official court functionary, the office’s mistake in miscalculating the father’s child support arrearages did not entitle the mother to a bill of review. Bialaszewski v. Bialaszewski, 557 S.W.3d 88, 93 (Tex. App.—Austin 2017, no pet.).
In a bill of review in a default judgment case in which service was called into question because the return did not state word-for-word from the rule 106 order granting alternative service, the court could consider the testimony of the process server in concluding that the requirements of the rule 106 order were strictly followed; in a restricted appeal, by contrast, the court is limited to reviewing the face of the record only. In re M.C.B., 400 S.W.3d 630, 634–35 (Tex. App.—Dallas 2013, no pet.). A bill of review is proper when the return of service was not on file for ten days before the trial court’s issuance of a default order; service of process did not comply with rule 107 and was invalid. Lancaster v. Lancaster, No. 01-14-00845-CV, 2015 WL 9480098, at *4 (Tex. App.—Houston [1st Dist.] Dec. 29, 2015, no pet.) (mem. op.).
Pleadings: Because it is fundamentally important in the administration of justice that some finality be accorded to judgments, the grounds on which interference will be allowed are narrow, and the rules are not to be relaxed merely because it may appear in a particular case that an injustice has been done. Alexander v. Hagedorne, 226 S.W.2d 996, 998 (Tex. 1950). To set aside a judgment by bill of review, the petitioner must plead (1) a meritorious defense to the cause of action alleged to support the judgment (2) that he was prevented from making by the fraud, accident, or wrongful act of his opponent (3) unmixed with any fault or negligence of his own. Wembley, 11 S.W.3d at 927; Baker v. Goldsmith, 582 S.W.2d 404, 408 (Tex. 1979).
The petitioner must present prima facie proof of a meritorious defense as a pretrial matter. After a prima facie showing, the trial court then conducts a trial on the remaining elements. Beck v. Beck, 771 S.W.2d 141, 141–42 (Tex. 1989). To prevail, the petitioner in a bill-of-review action has the burden of proving his lack of fault or negligence in permitting a meritorious defense to go unasserted in a prior action. Jarrett v. Northcutt, 592 S.W.2d 930, 930–31 (Tex. 1979) (per curiam).
A prima facie meritorious claim or defense is established when it is determined that the petitioner’s claim or defense is not barred as a matter of law and that he will be entitled to judgment on retrial if no evidence to the contrary is offered. If, however, a prima facie meritorious defense has not been made out, the proceeding terminates and the trial court shall dismiss the case. The preliminary determination of whether a prima facie meritorious defense is made out is a question of law. Baker, 582 S.W.2d at 408–09.
Denial of a bill of review was not error where the trial court found that the mother had not established a meritorious defense to the district court’s decision that the modification was in the best interest of the child. Although a parent’s alleged perjury and his and his family’s mental health and mental-health history may be factors that a trial court could consider in determining the best interests of the child, they are not the only factors in such a determination. Thus, even if the trial court did consider the matters alleged by the mother, those matters would not necessarily be dispositive of the trial court’s custody determination on retrial. Stokes v. Corsbie, No. 03-17-00469-CV, 2018 WL 6816824 (Tex. App.—Austin Dec. 28, 2018, no pet.) (mem. op.).
If the petitioner relies on fraud in the bill of review, the fraud must be extrinsic. Extrinsic fraud is collateral fraud in the sense that it must be collateral to the matter actually tried and not something that was actually or potentially at issue in the trial. Montgomery v. Kennedy, 669 S.W.2d 309, 312 (Tex. 1984). Extrinsic fraud is conduct that prevents a real trial on the issues involved. Montgomery, 669 S.W.2d at 313. It is fraud committed by the other party to the suit that prevented the losing party either from knowing about his rights or defenses or from having a fair opportunity to present them at trial. Alexander, 226 S.W.2d at 1001. Extrinsic fraud is wrongful conduct practiced outside the adversary trial, such as keeping a party away from court or making false promises of compromise, that affects the manner in which the judgment is procured. Rhamey v. Fielder, 203 S.W.3d 24, 29 (Tex. App.—San Antonio 2006, no pet.); see also Maxwell v. Maxwell, No. 14-20-00298-CV, 2021 WL 4956881 (Tex. App.—Houston [14th Dist.] Oct. 26, 2021, pet. denied) (mem. op.) (husband’s threats and manipulations of emotionally fragile wife kept her from hiring her own attorney); Montgomery, 669 S.W.2d at 313 (fiduciary’s concealment of material facts to induce an agreed or uncontested judgment); In re Marriage of Stroud, 376 S.W.3d 346, 356 (Tex. App.—Dallas 2012, pet. denied) (husband’s threats to render business worthless causing wife to believe she would put her future at risk if she continued to litigate her interest in community estate); Griffith v. Conard, 536 S.W.2d 658, 660 (Tex. App.—Corpus Christi–Edinburg 1976, no writ) (false promise of settlement causing petitioner not to appear at trial).
Denial of a bill of review was not error where the trial court found that the party’s signature on an agreed order was not secured by deception or fraud; even though the party was not served with a citation, did not sign a waiver of service, and did not appear in person at the hearing resulting in the final order, she made a general appearance when she voluntarily and intentionally signed the order as approved and consented to in both form and substance. In re C.R.B., 256 S.W.3d 876, 877 (Tex. App.—Texarkana 2008, no pet.). Denial of a bill of review was not error where the trial court concluded that the mother understood English very well and, in any event, was negligent in signing the final order if she did not understand it and in failing to make the other parties or the court aware that she required translation services. Castro v. Ayala, 511 S.W.3d 42 (Tex. App.—El Paso 2014, no pet.).
In contrast, intrinsic fraud relates to the merits of the issues that were presented and presumably were or should have been settled in the former action. Intrinsic fraud is inherent in the matter considered and determined in the trial if the fraudulent acts pertain to an issue involved in the original action or if the acts constituting the fraud were, or could have been, litigated in that action. For example, a mother’s misrepresentation to a man that he was the child’s father was intrinsic, not extrinsic, fraud. In re Office of Attorney General, 193 S.W.3d 690, 693 (Tex. App.—Beaumont 2006, orig. proceeding) (per curiam).
Likewise, allegations of fraud that amount to “nothing more than allegations that the decree of divorce provided an inequitable and unfair division of the marital estate” do not support relief for a party by a bill of review. In re Marriage of Noonan, 280 S.W.3d 339, 344 (Tex. App.—Amarillo 2008, pet. denied).
COMMENT: Because a bill of review is not available unless there has been clear extrinsic fraud, a separate lawsuit based on fraud should be considered instead.
A court will not vacate a judgment in an independent suit brought for that purpose on the basis that the judgment was founded on intrinsic fraud. Alexander, 226 S.W.2d at 1001. Judgments are not impeachable for frauds relating to the merits between the parties; all mistakes and errors must be corrected from within by motion for new trial, by motion to reopen the judgment, or by appeal. Alexander, 226 S.W.2d at 1002; Forney v. Forney, 672 S.W.2d 490, 498 (Tex. App.—Houston [1st Dist.] 1983, writ dism’d w.o.j.). “Intrinsic fraud” includes fraudulent instruments, perjured testimony, or any matter that was actually presented to and considered by the trial court in rendering the judgment assailed. The alleged perjury of a witness on a contested issue, which the opposing party had the opportunity to refute, is intrinsic fraud. Montgomery, 669 S.W.2d at 313.
A husband sought a bill of review after he discovered that his wife was ten years older than she had represented. He claimed that because he wanted children, he would not have married the wife. The denial of his bill of review was not error, because the husband could not show that his failure to raise a meritorious claim was not due in part to his own fault or negligence. The wife testified that the husband could have discovered her true age by looking at documents stored in an unlocked file cabinet or on a shared hard drive, or he should have known because the wife suffered medical conditions commonly suffered by women of her actual age. Zielinski v. Zielinski, No. 03-18-00063-CV, 2019 WL 491913, at *3 (Tex. App.—Austin Feb. 8, 2019, pet. denied) (mem. op.).
Accident or Mistake: It was error for the trial court to deny a husband’s petition for a bill of review, because he established the three required elements. First, he proved he was unaware that his wife’s prior marriage was still in effect when they married, which established a meritorious defense. Second, a finding that the wife was a “victim of fraud” in securing what she thought was a valid Mexican divorce from her prior husband showed the existence of accident or wrongdoing in the issuance of the parties’ divorce judgment, because the parties did not know the wife was not properly divorced. Third, the husband did not know the wife was not divorced from her prior husband when the parties were married or when they divorced; thus there was no fault or negligence by the husband. Gonzalez v. Cortina, No. 13-18-00603-CV, 2020 WL 4035516, at *4 (Tex. App.—Corpus Christi–Edinburg July 16, 2020, no pet.) (mem. op.).
Laches and Limitations: Ordinarily, a person must exercise due diligence to avail himself of all adequate legal remedies against a former judgment before filing a bill of review. The residual four-year statute of limitations applies to bills of review. Tex. Civ. Prac. & Rem. Code § 16.051.
Since a bill of review is equitable in nature, laches may be raised as a defense to its prosecution. Two essential elements of laches are (1) unreasonable delay by one having legal or equitable rights in asserting them and (2) a good-faith change of position by another to his detriment because of the delay. Generally, in the absence of some element of estoppel or such extraordinary circumstances as would render inequitable the enforcement of petitioners’ right after a delay, laches will not bar a suit short of the period set forth in the limitations statute. Laches should not bar an action on which limitations has not run unless allowing the action would work a grave injustice. Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998).
Violation of Due Process: If the record establishes that the petitioner did not have actual or constructive notice of the original suit or of the trial setting, the Fourteenth Amendment to the United States Constitution requires that the petitioner be granted a new trial, even if he cannot show a meritorious defense. Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 80–81 (1988) (process was served untimely, and party was never personally served); Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988) (per curiam) (party was not served with notice of trial setting after his attorney withdrew). In Peralta, the U.S. Supreme Court rejected the argument that the appellant suffered no harm because the same judgment would again be entered on retrial absent a meritorious defense. See Peralta, 485 U.S. at 80. But see Texas Sting, Ltd. v. R.B. Foods, 82 S.W.3d 644, 649–50 (Tex. App.—San Antonio 2002, pet. denied) (trial court may refuse to grant new trial if case dismissed for want of prosecution and no good cause shown why case should be maintained).
If the petitioner proves lack of service of citation, he does not need to prove that he was prevented from making a meritorious claim or defense because of fraud, accident, or wrongful act of the other party. Texas Industries, Inc. v. Sanchez, 525 S.W.2d 870, 871 (Tex. 1975) (per curiam).
Trial: If the trial court determines that a prima facie meritorious defense has been shown, the case proceeds to trial. The petitioner must open and assume the burden of proving that the judgment was rendered as a result of fraud, accident, or wrongful act of the opposite party or official mistake unmixed with any negligence of his own. While the petitioner must assume this burden, the defendant has the burden of proving his original cause of action, thereby ensuring that the original underlying cause of action is supported by the weight of the evidence. The fact finder then determines whether the petitioner has established by a preponderance of the evidence that the prior judgment was rendered as a result of the fraud, accident, or wrongful act of the opposite party or official mistake unmixed with any negligence on the petitioner’s part. Conditioned on an affirmative finding to this issue, the fact finder determines whether the bill-of-review defendant has proved the elements of his original cause of action. Baker, 582 S.W.2d at 409.
Particularly in agreements incident to divorce, parties may contract to provide payments or perform acts that the court cannot order them to do. For example, spouses may agree by contract that one spouse will make payments for the support of the other following the divorce; such an agreement does not violate public policy. Francis v. Francis, 412 S.W.2d 29, 33 (Tex. 1967). These agreements are enforceable in accordance with the law of contracts. Francis, 412 S.W.2d at 33.
A petition seeking damages for breach of the agreement must allege all traditional elements of a breach-of-contract action: the terms of the agreement and its execution, the plaintiff’s performance, particular facts demonstrating that the defendant has breached or intends to breach the contract, and the damages sought. However, if the agreement is made a part of the pleadings, they “shall not be deemed defective because of the lack of any allegations which can be supplied from said exhibit.” Tex. R. Civ. P. 59. A judgment that awards a recovery of past-due installments does not bar subsequent suits for subsequent defaults. Andrews v. Andrews, 441 S.W.2d 244, 247 (Tex. App.—Fort Worth 1969, writ ref’d n.r.e.).
If the conduct of the payor indicates a distinct and unequivocal intention not to perform under the terms of the contract, the doctrine of anticipatory breach may apply. Chavez v. Chavez, 577 S.W.2d 306, 307 (Tex. App.—El Paso 1979, writ ref’d n.r.e.). Under these circumstances, the payee-spouse may recover damages for the entire breach and is entitled in one suit to receive in damages the present value of all of what he would have received if the contract had been performed. Lee v. Lee, 509 S.W.2d 922, 927 (Tex. App.—Beaumont 1974, writ ref’d n.r.e.). Because such a suit sounds in the law of contracts, reasonable attorney’s fees may be recovered. Tex. Civ. Prac. & Rem. Code § 38.001; Conner v. Bean, 630 S.W.2d 697, 703 (Tex. App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.).
An agreement incident to divorce may provide that one spouse will pay all or a certain portion of the expenses of a child’s college education. Agreements of this nature are enforceable in contract, and suit may be brought by the child or by the spouse who was the promisee in the agreement. Stegall v. Stegall, 571 S.W.2d 564, 566 (Tex. App.—Fort Worth 1978, no writ). A breach of contract claim for failure to comply with a divorce decree or an agreement incident to divorce may be brought in any civil district court that has jurisdiction, not just the court that rendered the decree. Ishee v. Ishee, No. 09-15-00197-CV, 2017 WL 2293150, at *4 (Tex. App.—Beaumont May 25, 2017, no pet.) (mem. op.).
See chapter 32 of this manual for enforcement of spousal maintenance by contempt.
An adult may file a petition requesting a change of name in the county of the adult’s place of residence. Tex. Fam. Code § 45.101. It is not necessary for a married petitioner’s spouse to be made a party to the suit. In re Erickson, 547 S.W.2d 357, 359 (Tex. App.—Houston [14th Dist.] 1977, no writ).
The petition must be verified and include the present name and place of residence of the petitioner, the full name requested for the petitioner, the reason the change in name is requested, whether the petitioner has been the subject of a final felony conviction, whether the petitioner is subject to the registration requirements of Texas Code of Criminal Procedure chapter 62, and a legible and complete set of the petitioner’s fingerprints on a fingerprint card format acceptable to the Texas Department of Public Safety and the Federal Bureau of Investigation. Tex. Fam. Code § 45.102(a). The petition must include a number of items of information or a reasonable explanation of why one or more is not included. See Tex. Fam. Code § 45.102(b). The petitioner is not required to provide a residence address or the reason for the requested name change if specified documentation is provided certifying that the petitioner is a participant in the address confidentiality program administered under the Texas Code of Criminal Procedure. Tex. Fam. Code § 45.102(c).
A party may waive service after the suit is filed by filing a waiver acknowledging receipt of a copy of the citation. The waiver may not be signed using a digitized signature. The waiver must contain the party’s mailing address. It must be sworn before a notary public who is not an attorney in the suit or conform to the requirements for an unsworn declaration under section 132.001 of the Texas Civil Practice and Remedies Code unless the party waiving is incarcerated. The Texas Rules of Civil Procedure do not apply to these waivers. Tex. Fam. Code § 45.107.
In a suit to change the name of an adult brought under Family Code chapter 45, subchapter B, the court shall order a change of name for any person other than a person with a final felony conviction or a person subject to the registration requirements of Texas Code of Criminal Procedure chapter 62, if the change is in the interest or to the benefit of the petitioner and in the interest of the public. Tex. Fam. Code § 45.103(a). Such interest and benefit are presumed if the petitioner provides the court specified certification that the petitioner is a participant in the address confidentiality program administered by the attorney general. Tex. Fam. Code § 45.103(a–1).
Generally, the grant of an application for change of name is a matter of judicial discretion and should be granted unless there exists some wrongful, fraudulent, or capricious purpose; however, a person does not have an absolute right to change his name by court order. Erickson, 547 S.W.2d at 359. The court has wide discretion in deciding whether to grant a petition for change of name of an adult and may inquire into many areas, other than sex, such as whether the petitioner has judgments against him or has been a bankrupt or whether the change is sought to conceal an adverse credit rating or a criminal record or to otherwise work a fraud. In short, the court may inquire into such matters as may be reasonably necessary to protect the family from disruption and the public from imposition (assumption of the name of a celebrity or well-known entity for commercial purposes), fraud, or improper purpose. Erickson, 547 S.W.2d at 359–60.
A court may order a change of name under Family Code chapter 45, subchapter B, for a person with a final felony conviction if, in addition to the requirements of Family Code section 45.103(a), the person (1) has been pardoned or has received a certificate of discharge by the Texas Department of Criminal Justice or completed a period of community supervision or juvenile probation ordered by a court and not less than two years have passed from the date of the receipt of discharge or completion of community supervision or juvenile probation or (2) is requesting to change his name to the primary name used in his criminal history record information. Tex. Fam. Code § 45.103(b). A court may order a change of name for a person subject to Texas Code of Criminal Procedure chapter 62 registration requirements if the person meets the requirements of section 45.103(a) or is requesting to change his name to the primary name used in his criminal history record information and provides the court with proof that he has notified the appropriate local law enforcement authority (as defined by Texas Code of Criminal Procedure article 62.001) of the proposed name change. Tex. Fam. Code § 45.103(c). An order changing the name of a petitioner who is in the address confidentiality program is confidential and may not be released, regardless of whether the petitioner continues to participate in the program after the name change. Tex. Fam. Code § 45.103(c–1). A change of name under chapter 45, subchapter B, does not release a person from any liability incurred in that person’s previous name or defeat any right the person had in the person’s previous name. Tex. Fam. Code § 45.104.
Additionally, on the final disposition of a suit for divorce, for annulment, or to declare a marriage void, the court shall change the name of a party specifically requesting the change to a name previously used 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 the last name of family members the same. Tex. Fam. Code §§ 6.706(a), (b), 45.105(a). A court may not change the name of an adult at the request of a third party and against the wishes of the adult. Gault v. Gault, No. 13-18-00097-CV, 2019 WL 4008403, at *4 (Tex. App.—Corpus Christi–Edinburg Aug. 26, 2019, pet. denied) (mem. op.) (husband does not have standing to request name change for wife against her wishes).
A change of name does not release a person from any liability incurred in that person’s previous name or defeat any right the person held under a previous name. Tex. Fam. Code §§ 6.706(c), 45.104. A person whose name has been changed in a suit for divorce, for annulment, or to declare a marriage void 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).
Although chapter 45 of the Texas Family Code provides procedures for a change of name, there is no similar chapter for a change of gender; thus Texas courts lack jurisdiction over gender change orders. In re McReynolds, 502 S.W.3d 884 (Tex. App.—Dallas 2016, no pet.).
A parent, managing conservator, or guardian of a child may file a petition requesting a change of name of the child in the county where the child resides. Tex. Fam. Code § 45.001. The petition must be verified and include the present name and place of residence of the child; the reason a change of name is requested; the full name requested for the child; whether the child is subject to the continuing, exclusive jurisdiction of a court under Family Code chapter 155; and whether the child is subject to the registration requirements of chapter 62 of the Texas Code of Criminal Procedure. Tex. Fam. Code § 45.002(a). See In re L.M., No. 02-17-00173-CV, 2018 WL 3154187 (Tex. App.—Fort Worth June 28, 2018, no pet.) (mem. op.) (trial court erred in changing child’s name when father’s petition was filed only twenty-six days before trial, petition was not verified, and petition did not include any supporting details to show name change was in best interest of child). If the child is ten years of age or older, the child’s written consent to the change of name must be attached to the petition. Tex. Fam. Code § 45.002(b).
Citation must be given to a parent of the child whose parental rights have not been terminated, any managing conservator of the child, and any guardian of the child. Citation must be issued and served in the same manner as under Family Code chapter 102. Tex. Fam. Code § 45.003.
A party may waive service after the suit is filed by filing a waiver acknowledging receipt of a copy of the citation. The waiver may not be signed using a digitized signature. 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. Tex. Fam. Code § 45.0031.
The court may order the name of the child changed if the change is in the best interest of the child. Tex. Fam. Code § 45.004(a)(1). The burden is on the applicant to establish that the change will be in the best interest of the child. Bennett v. Northcutt, 544 S.W.2d 703, 708 (Tex. App.—Dallas 1976, no writ) (per curiam); see In re A.L.J., No. 06-19-00027-CV, 2019 WL 5779782, at *8–9 (Tex. App.—Texarkana Nov. 6, 2019, pet. denied) (discussing factors that court may consider in making best-interest determination regarding name change). In addition to the best-interest requirement, if the child is subject to the registration requirements of chapter 62 of the Texas Code of Criminal Procedure, the change must be in the interest of the public and the person petitioning on behalf of the child must provide the court with proof that the child has notified the appropriate local law enforcement authority (as defined by Texas Code of Criminal Procedure article 62.001) of the proposed name change. Tex. Fam. Code § 45.004(a)(2), (c).
Courts will exercise their power to change a child’s name reluctantly and only when the substantial welfare of the child requires the change. Newman v. King, 433 S.W.2d 420, 423 (Tex. 1968). The father does not have a constitutional right to have the child bear his surname. Newman, 433 S.W.2d at 422–23. The name of a child chosen by one of the parents will not be changed unless the dissident parent shows a good reason for the change. In re M.L.P., 621 S.W.2d 430, 431 (Tex. App.—San Antonio 1981, writ dism’d). A guardian ad litem may be required in a name-change law suit. See Bennett, 544 S.W.2d at 708.
A court has the power to enforce its decree and require a party to use the proper surname of a child. The petitioner does not need to show harm, only that the proper surname is not being used by the other party. In re Griffiths, 780 S.W.2d 899, 900 (Tex. App.—Amarillo 1989, no writ); see also In re Baird, 610 S.W.2d 252, 254 (Tex. App.—Fort Worth 1980, no writ). In In re Baird, the mother permitted the child to use a name other than the child’s legal surname while attending school. On the father’s request, the trial court ordered that the mother cease that conduct. On appeal, the court affirmed the trial court’s order, finding that the Texas Family Code provides the proper method of changing a child’s name. In re Baird, 610 S.W.2d at 254.
In G.K. v. K.A., the court upheld the trial court’s refusal to change the surname of the child to that of the child’s biological father in a paternity suit. The trial court had noted it would be inappropriate to change the child’s surname because the father had never lived with the child or the mother. The record further showed that the child was born as a result of an adulterous affair, the father was married to another person at the time of the conception and birth of the child, and the father continued to be married to that person. The court of appeals distinguished these facts from those of the cases cited by the father in which the child already had the father’s surname and the contesting party sought to change the name from the father’s surname to another surname, such as that of a stepfather. G.K. v. K.A., 936 S.W.2d 70, 73 (Tex. App.—Austin 1996, writ denied). The father in G.K. had relied on cases that held that a father has a protectable interest in his child’s retaining his surname. See Newman, 433 S.W.2d at 423; In re Griffiths, 780 S.W.2d at 900; Brown v. Carroll, 683 S.W.2d 61, 63 (Tex. App.—Tyler 1984, no writ).
If the child is subject to the continuing jurisdiction of a court under Family Code chapter 155, the court shall send a copy of the order to the central record file as provided in Family Code chapter 108. Tex. Fam. Code § 45.004(b).
A change of name does not release the child from any liability incurred in the child’s previous name or defeat any right the child had in the child’s previous name. Tex. Fam. Code § 45.005.
Although the information is not technically required, forms 61-6 and 61-7 in this manual (petition for change of name of child and order granting change of name of child, respectively) include the child’s Social Security number and the date and place of his birth. This information stated in the order will probably facilitate the process of changing the child’s name on governmental, school, medical, and other types of records.
§ 61.5Hardship Driver’s License
Clients sometimes ask for assistance in obtaining a driver’s license for a child who is under sixteen years of age. The Department of Public Safety may issue a license to a person who is at least fifteen years old, has passed a driver-education course approved by the department, and has passed the department’s driver’s license examination. If the department determines that an applicant must assist in the responsibilities imposed by a family illness, disability, death-related emergency, or economic emergency, the department may waive the driver-training course requirement and issue a temporary sixty-day license. This temporary license is renewable for additional sixty-day periods as long as the emergency continues. Tex. Transp. Code § 521.223(b), (d).
To grant the hardship license, the department must make one of the following findings:
1.The failure to issue the license will result in an unusual economic hardship for the applicant’s family.
2.The license is necessary because of the illness of a member of the applicant’s family.
3.The license is necessary because the applicant is enrolled in a vocational education program and requires a driver’s license to participate in the program.
Tex. Transp. Code § 521.223(a).
An application form for this license is available from the Department of Public Safety, Driver’s License Division.
§ 61.6Postdivorce Property Division
Either former spouse may file a suit under Family Code chapter 9, subchapter C, to divide property not divided or awarded to a spouse in a final decree of divorce or annulment. Except as provided in Family Code sections 9.201 through 9.205, the suit is governed by the Texas Rules of Civil Procedure that apply to filing an original lawsuit. Tex. Fam. Code § 9.201.
Limitations: The suit for division must be filed before the second anniversary of the date a former spouse unequivocally repudiates the existence of the ownership interest of, and communicates that repudiation to, the other spouse. Tex. Fam. Code § 9.202(a). Neither the failure to transfer property nor the filing of a general denial in a suit for partition constitutes an unequivocal repudiation for the purposes of limitations. Sagester v. Waltrip, 970 S.W.2d 767, 769 (Tex. App.—Austin 1998, pet. denied). The two-year limitations period is tolled for the period that a Texas court does not have jurisdiction over the former spouses or over the property. Tex. Fam. Code § 9.202(b).
Division: If a Texas court failed to dispose of property subject to division in a final decree of divorce or annulment even though the court had jurisdiction over the spouses or the property, the court shall divide the property in a manner that the court deems just and right, having due regard for the rights of each party and of any children of the marriage. Tex. Fam. Code § 9.203(a); Haynes v. McIntosh, 776 S.W.2d 784, 788 (Tex. App.—Corpus Christi–Edinburg 1989, writ denied).
If a final decree of divorce or annulment rendered by a court in another state failed to dispose of property subject to division under the law of that state even though the court had jurisdiction to do so, the Texas court shall apply the law of the other state regarding undivided property. Tex. Fam. Code § 9.203(b).
If a Texas court failed to dispose of property subject to division in a final decree of divorce or annulment because the court lacked jurisdiction over a spouse or the property, and if that court subsequently acquires the requisite jurisdiction, that court may divide the property in a manner that the court deems just and right, having due regard for the rights of each party and of any children of the marriage. Tex. Fam. Code § 9.204(a).
If a final decree of divorce or annulment rendered by a court in another state failed to dispose of property subject to division under the law of that state because the court lacked jurisdiction over a spouse or the property and if a Texas court subsequently acquires the requisite jurisdiction, the Texas court may divide the property in a manner that the court deems just and right, having due regard for the rights of each party and of any children of the marriage. Tex. Fam. Code § 9.204(b).
Attorney’s Fees: In any proceeding to divide property previously undivided in a decree of divorce or annulment as provided by Family Code sections 9.201 through 9.205, the court may award reasonable attorney’s fees and order that they be paid directly to the attorney. The attorney 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 § 9.205.
Non-Code Provisions: Partition not made in accordance with Family Code chapter 9, subchapter C, is generally governed by chapter 23 of the Texas Property Code and rules 756 through 778 of the Texas Rules of Civil Procedure.
Military Benefits: For a discussion of postdivorce division of military retirement benefits, see chapter 25 of this manual.
§ 61.7Removal of Disabilities of Minority
A minor may file a petition in the county in which the petitioner resides to have the disabilities of minority removed for limited or general purposes if the minor is a resident of Texas; seventeen years of age, or at least sixteen years of age and living separate and apart from the minor’s parents, managing conservator, or guardian; and self-supporting and managing the minor’s own financial affairs. Tex. Fam. Code §§ 31.001(a), 31.003. A minor may file this suit in the minor’s own name and need not be represented by a next friend. Tex. Fam. Code § 31.001(b). The petition must state the information listed in Family Code section 31.002(a). See Tex. Fam. Code § 31.002(a).
A parent of the petitioner must verify the petition, except that if a managing conservator or guardian of the person has been appointed, the managing conservator or guardian must verify the petition. If the person who is to verify the petition is unavailable or that person’s whereabouts are unknown, the amicus attorney or attorney ad litem shall verify the petition. Tex. Fam. Code § 31.002(b).
The court shall appoint an amicus attorney or attorney ad litem to represent the interest of the petitioner at the hearing. Tex. Fam. Code § 31.004.
The court by order, or the Supreme Court of Texas by rule or order, may remove the disabilities of minority of a minor, including any restriction imposed by Family Code chapter 32 (consent to treatment), if the court or the Supreme Court of Texas finds the removal to be in the best interest of the petitioner. The order or rule must state the limited or general purposes for which disabilities are removed. Tex. Fam. Code § 31.005.
Except for specific constitutional and statutory age requirements, a minor whose disabilities are removed for general purposes has the capacity of an adult, including the capacity to contract. Also, except as provided by federal law, all education rights accorded to the parent of a student, including the right to make education decisions under Family Code section 151.001(a)(10), transfer to the minor whose disabilities are removed for general purposes. Tex. Fam. Code § 31.006.
A nonresident minor who has had the disabilities of minority removed in the state of the minor’s residence may file a certified copy of the order removing disabilities in the deed records of any Texas county. When a certified copy of the order of a court of another state or nation is filed, the minor has the capacity of an adult, except as provided by section 31.006 and by the terms of the order. Tex. Fam. Code § 31.007.
A party may waive service after the suit is filed by filing a waiver acknowledging receipt of a copy of the citation. The waiver may not be signed using a digitized signature. The waiver must contain the party’s mailing address. It must be sworn before a notary public who is not an attorney in the suit or conform to the requirements for an unsworn declaration under section 132.001 of the Texas Civil Practice and Remedies Code unless the party waiving is incarcerated. The Texas Rules of Civil Procedure do not apply to these waivers. Tex. Fam. Code § 31.008.
An action against an ex-spouse for harassing behavior must meet the pleading and bond requirements of rules 680 through 693 of the Texas Rules of Civil Procedure. The exceptions provided by rule 693a (bond in divorce case) and Family Code section 6.503 (affidavit) do not apply.
Under the Texas Rules of Civil Procedure, no temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had. Tex. R. Civ. P. 680. No injunction shall be granted unless the applicant presents to the judge his petition, verified by affidavit, containing a plain and intelligible statement of the grounds for the relief sought. Tex. R. Civ. P. 682.
A bond must be set for any temporary restraining order or temporary injunction. Tex. R. Civ. P. 684. The provision for waiver of bond in divorce cases under rule 693a applies only in connection with an ancillary injunction in behalf of one spouse against the other, not when third parties are involved. Failure of the applicant to file a bond on issuance of an injunction against a lienholder renders the injunction void from its inception. Nationwide Life Insurance Co. v. Nations, 654 S.W.2d 860, 861 (Tex. App.—Houston [14th Dist.] 1983, no writ).
Before issuance of the temporary restraining order or temporary injunction, the applicant shall execute and file with the clerk a bond payable to the adverse party, with two or more good and sufficient sureties, to be approved by the clerk. The judge shall fix the sum of the bond. The bond will be conditioned on the applicant’s abiding by the decision that may be made in the case and on the applicant’s paying all sums of money and costs that may be adjudged against him if the restraining order or temporary injunction is dissolved in whole or in part. Tex. R. Civ. P. 684.
If the harassing behavior involves the use or threat of physical force, it may be appropriate to use the provisions of title 4 of the Family Code. See chapter 17 of this manual.
§ 61.9Interference with Possessory Interest in Child
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. Tex. Fam. Code § 42.003(a). One who was not a party to the original suit granting the 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(b); Bos v. Smith, 556 S.W.3d 293 (Tex. 2018); Lozano v. Lozano, 983 S.W.2d 787, 789 (Tex. App.—Houston [14th Dist.] 1998), aff’d in part, rev’d in part, 52 S.W.3d 141 (Tex. 2001). Inconclusive inferences as to what a defendant knew or did not know based on the defendant’s conduct will not support a verdict against the defendant. An inference must be reasonably and logically drawn from the evidence. Lozano, 983 S.W.2d at 792. However, failure to notify a party regarding the location of an abducted child will not state a cause of action unless an affirmative duty exists. See A.H. Belo Corp. v. Corcoran, 52 S.W.3d 375, 381 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).
Damages may include the actual costs and expenses incurred, including attorney’s fees, 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.
The defendant may plead as an affirmative defense that the defendant acted in violation of the order with the express consent of the plaintiff. Tex. Fam. Code § 42.007.
A person who is 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.
For a detailed analysis of the application of Family Code chapter 42, see Smith v. Smith, 720 S.W.2d 586 (Tex. App.—Houston [1st Dist.] 1986, no writ).
The use of an enforcement proceeding under Family Code chapter 157 does not limit or preclude the use of other proceedings, including a suit for damages under Family Code chapter 42. Tex. Fam. Code § 157.003(b).
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. No cause of action for negligent interference with the family relationship exists in Texas. 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).
A declaratory judgment is an action to declare rights, status, and other legal relations whether or not further relief is or could be claimed. Tex. Civ. Prac. & Rem. Code § 37.003(a). The purpose of the Declaratory Judgments Act, chapter 37 of the Texas Civil Practice and Remedies Code, is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; it is to be liberally construed and administered. Tex. Civ. Prac. & Rem. Code § 37.002(b). An action or proceeding is not open to objection on the ground that a declaratory judgment or decree is prayed for. Tex. Civ. Prac. & Rem. Code § 37.003(a). The declaration may be either affirmative or negative in form and effect, and the declaration has the force and effect of a final judgment or decree. Tex. Civ. Prac. & Rem. Code § 37.003(b).
A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder. Tex. Civ. Prac. & Rem. Code § 37.004(a). In Monk v. Pomberg, 263 S.W.3d 199 (Tex. App.—Houston [1st Dist.] 2007, no pet.), the court permitted an action for a declaratory judgment to allow the trial court to determine if it should decline to exercise its continuing jurisdiction in an interstate custody determination. It has been held that a declaratory judgment is a proper procedure to determine the validity of a mediated settlement agreement. See Spiegel v. KLRU Endowment Fund, 228 S.W.3d 237, 244 (Tex. App.—Austin 2007, pet. denied).
If a proceeding under the Declaratory Judgments Act involves the determination of an issue of fact, the issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending, including trial by jury. See Tex. Civ. Prac. & Rem. Code § 37.007. However, the court may refuse to render or enter a declaratory judgment or decree if the judgment or decree would not terminate the uncertainty or controversy giving rise to the proceeding. Tex. Civ. Prac. & Rem. Code § 37.008. Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application must be by petition to a court having jurisdiction to grant the relief. If the application is deemed sufficient, the court shall, on reasonable notice, require any adverse party whose rights have been adjudicated by the declaratory judgment or decree to show cause why further relief should not be granted forthwith. Tex. Civ. Prac. & Rem. Code § 37.011. All orders, judgments, and decrees under the Declaratory Judgments Act may be reviewed as other orders, judgments, and decrees. Tex. Civ. Prac. & Rem. Code § 37.010. However, a declaratory judgment granted in a bifurcated divorce is not appealable until all pending issues in the divorce action are finalized. Wright v. Payne, No. 02-19-00147-CV, 2019 WL 6003243 (Tex. App.—Fort Worth Nov. 14, 2019, no pet.) (mem. op.).
The court may award costs and reasonable and necessary attorney’s fees as are equitable and just. Tex. Civ. Prac. & Rem. Code § 37.009.
§ 61.11Texas Citizens Participation Act
The Texas Citizens Participation Act (TCPA) is found at chapter 27 of the Texas Civil Practice and Remedies Code. Its purpose is to “safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government . . . and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem. Code § 27.002. The TCPA was intended to be an anti-SLAPP statute (to stop Strategic Lawsuits Against Public Participation in governance). In response to extensive commentary from judges and practitioners about the expansive application of the TCPA and the need for clarity, numerous modifications to the Act were made effective September 1, 2019. Of particular interest to family law practitioners, the amended version expressly exempts a legal action filed under title 1, 2, 4, or 5 of the Family Code, or an application for a protective order under subchapter A, chapter 7B, of the Code of Criminal Procedure. Tex. Civ. Prac. & Rem. Code § 27.010(a)(6). This includes TCPA actions against a litigant’s attorneys for statements made during an action filed under the Family Code. See Lipper v. Haynes, No. 01-19-00055-CV, 2019 WL 3558999 (Tex. App.—Houston [1st Dist.] Aug. 6, 2019, no pet.) (mem. op.). On its face, this exemption applies only to legal actions brought under the Family Code—for example, divorce, modification, and suits affecting the parent-child relationship. However, the TCPA does not appear to exempt legal actions not expressly brought under a Family Code title. For example, the TCPA still applies to legal actions in the form of ancillary action suits, such as intervenor suits or conventional civil claims not arising under the Family Code. See Rossa v. Mahaffey, 594 S.W.3d 618 (Tex. App.—Eastland 2019, no pet.). Finally, family practitioners should note that the TCPA still applies to a legal action against a victim or alleged victim of family violence or dating violence as defined in chapter 71 of the Family Code. Tex. Civ. Prac. & Rem. Code § 27.010(c).