Noteworthy 2006 Family Law Cases from Houston

For more information on Texas Family Case Law click the following links:   2007-2008 family law cases from Houston Courts of Appeals and from  the Texas Supreme Court 2006 Texas Supreme Court Decisions in Family Law | 2008 Texas Family Law Decisions Also: Recent domestic relations decisions from Texas courts of appeals: Splitsville Appeals Blog 2006 Appellate Cases With Links to Opinions Gainous v. Gainous, 219 S.W.3d 97, 103 (Tex.App.- Houston [1st Dist.] 2006, pet. filed)(ruling on post- divorce motion for clarification reviewed under abuse of discretion standard) Gainous v. Gainous (Tex.App.- Houston [1st Dist.] Dec. 21, 2006)(Taft) (opinion on rehearing)[family law, divorce, benefits, COLA, collateral attack] REVERSE TC JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: Opinion by Justice Taft Before Justices Taft, Keyes and Hanks 01-04-00427-CV Brenda Joyce Gainous v. Thomas Earl Gainous Appeal from 246th District Court of Harris County Concurring Opinion by Justice Keyes Concurring Opinion by Justice Hanks I join the judgment only, and I write separately and respectfully to express my disagreement with the Texas Supreme Court's opinion in Reiss v. Reiss, 118 S.W.3d 439 (Tex. 2003), and to urge the supreme court to revisit that authority. Court Comments on Ineffective Counsel Problem in Parental Rights Termination, But Says It Is Bound by Legislature Pool v. CPS (Tex.App.- Houston [1st Dist.] Dec. 14, 2006)(Jennings) [family law, termination of parental rights, ineffective counsel, constitutionality questionable] AFFIRM TC JUDGMENT: Opinion by Justice Jennings Before Justices Nuchia, Jennings and Higley 01-05-01093-CV        Jonathon E. Pool v. Department of Family and Protective Services Appeal from 313th District Court of Harris County ("In making our holding above, we join the Fort Worth Court of Appeals and Justice Vance of the Waco Court of appeals "in questioning the practical applications and constitutional validity of this statute," but we also agree that we simply "are barred by the legislature" from considering Pool's issues.") Jackson v. Jackson (Tex.App.- Houston [1st Dist.] Nov. 30, 2006)(Radack)(divorce, property division, sanctions case law) AFFIRM TC JUDGMENT: Chief Justice Radack Before Chief Justice Radack, Justices Alcala and Bland 01-05-00194-CV Theodore Jackson v. Louvenia Jackson Appeal from 387th District Court of Fort Bend County (Hon. Robert J. Kern) Court Addessses Nonparent Standing Issue in SAPCR Proceeding and Reverses Trial Court Whitworth v. Whitworth (Tex.App.– Houston [1st Dist.] Nov. 22, 2006)(Keyes) REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Justice Keyes Before Justices Nuchia, Keyes and Hanks) 01-04-01026-CV        Tammy Renee Whitworth v. Douglas Wayne Whitworth and Carol Whitworth Appeal from 257th District Court of Harris County ("Appellant, Tammy Renee Whitworth, challenges the trial court’s final decree of divorce that named intervenor, Carol Whitworth, sole managing conservator of Tammy’s minor child, K.C. In two issues on appeal, Tammy argues that the trial court erred (1) in failing to name her as joint managing conservator and (2) in giving her less than a standard possession order. We reverse and remand the cause.") ("We hold that Carol failed to establish standing to seek managing conservatorship of K.C. and that the trial court abused its discretion in awarding her temporary managing conservatorship of K.C. and bootstrapping its award of permanent managing conservatorship on its improper award of temporary managing conservatorship to a non-parent pursuant to a suit for custody over which it lacked subject matter jurisdiction.") Court Examines Standing Issue in Same-Sex Relationship Context Hobbs v. Van Stayern (Tex.App.-Houston [1st Dist.] Nov. 2, 2006)(Higley) [family law, SAPCR, same sex relationship, adoption, standing as parent] AFFIRM TC JUDGMENT: Justice Higley (Before Justices Nuchia, Jennings and Higley) 01-05-00632-CV Julie Ann Hobbs v. Janet Kathleen Van Stavern Appeal from 306th District Court of Galveston County International Dimension of SAPCR Creates Jurisdictional Quagmire Update: See Subsequent Texas Supreme Court Decision Alfonso v. Skadden (Tex. 2008) Skadden v. Traquis Alvonso  (Tex.App. - Houston [14th Dist.] Oct. 31, 2006)(Frost) [family law, jurisdiction, in personam, in rem, special appearance, defect in service, service by publication, Hague convention, restricted appeal, bill of review, enforcement action] REVERSED AND REMANDED: Justice Frost Before Justices Hudson, Frost and Seymore) 14-05-00488-CV        Michael Skadden v. Ana Maria Tarquis Alfonso 14-05-00489-CV        Michael Skadden aka Michael James Skadden, Relator v. Ana Maria Tarquis Alfonso Appeal from 246th District Court of Harris County Temporary Injunction Appeal Not Permitted in Divorce Context Based Under Family Code Marley v. Marley (Tex.App.- Houston [1st Dist.] Oct 27, 2006)(Higley) [family law, divorce, temporary orders unappealable, controlled by Family Code, not by statute authorizing interlocutory appeals in civil cases] DISMISS APPEAL: Justice Higley Before Justices Jennings, Hanks and Higley 01-05-00992-CV        Frank E. Marley, Jr. v. Connie A. Stirgus Marley Appeal from 387th District Court of Fort Bend County (Hon. Brenda Mullinix)                                  The proceeding in this case is a suit for divorce. Section 6.502 of the Family Code provides the trial court with jurisdiction to enter temporary orders. Tex. Fam. Code Ann. § 6.502. The temporary orders are interlocutory. Beard v. Beard, 49 S.W.3d 40, 69 (Tex. App.—Waco 2001, pet. denied). Section 6.507 precludes appeal of those orders. Tex. Fam. Code Ann. § 6.507. Habeas Relief Not Available When Petitioner Is Not Restrained In re Aurelio Sotelo Flores (Tex.App.-Houston [1st Dist.] Nov. 3, 2006)(per curiam) [family law, child support, habeas relief denied, relator not restrained, DWOJ] DISMISS PETITION FOR WRIT OF MANDAMUS: Per Curiam Before Justices Nuchia, Jennings and Higley 01-06-00733-CV In re Aurelio Sotelo Flores Appeal from 245th District Court of Harris County (Hon. Annette Galik) ("We dismiss relator’s petition for want of jurisdiction because the issue about which relator complains is not ripe for consideration in this habeas proceeding. Footnote  See In re Easton, No. 14-06-00674-CV, slip op. at 3, 2006 Tex. App. LEXIS 7095 (Tex. App.—Houston [14th Dist.] Aug. 10, 2006, orig. proceeding) (held court of appeals has no jurisdiction to entertain application for writ of habeas corpus when trial court had issued writ of attachment for relator’s arrest because he had failed to appear for contempt hearing, but was not confined and, to the court’s knowledge, was still evading writ of attachment)") Termination of Parental Rights Reversed As To Father Admitting Paternity - CPS Required to Show Abuse or Neglect Tolivar v. DFPS (CPS) (Tex.App. - Houston [1st Dist.] Oct 26, 2006)(Jennings) [family law, admission of paternity need not be formal, sufficient to prevent termination without showing of statutory grounds] AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Justice Jennings (Before Justices Nuchia, Jennings and Higley) 01-06-00292-CV        Zenobia Tolivar, Muntravian Martin, and Marcus Holloway v. Department of Family and Protective Services Appeal from 306th District Court of Galveston County (“We hold that Martin, by appearing at trial before his rights were terminated and admitting that he was in fact Z.M.’s father, triggered his right to require DFPS to prove that he engaged in one of the types of conduct listed in section 161.001(1) before his parental rights could be terminated. Accordingly, we further hold that the trial court erred in finding that Martin did not timely file an admission of paternity and in terminating his parental rights to Z.M.”) Jackson v. Jackson (Tex.App. - Houston [1st Dist.] Nov. 2, 2006)(Alcala) [family law, divorce, mediated settlement agreement, MSA, duress claim, motion for new trial, newly discovered evidence] AFFIRM TC JUDGMENT: Justice Alcala (Before Chief Justice Radack, Justices Alcala and Bland) 01-04-01215-CV Deborah Joyce Jackson v. Phil Jackson, Jr. Appeal from 387th District Court of Fort Bend County Ruiz v. Dept of Fam. & Reg. Serv's (Tex.App.- Houston [1st Dist.] Nov. 2, 2006)(Jennings) REVERSE TC JUDGMENT AND RENDER JUDGMENT: Justice Jennings (Before Justices Jennings, Hanks and Higley) 01-05-00556-CV Monica Ruiz v. Department of Family and Protective Services Appeal from 314th District Court of Harris County Child Support Amount Above Guidelines as Discovery Sanction Reversed and Lowered Glash v. Glash (Tex.App.- Houston [14th Dist.] Oct. 10, 2006)(Seymore) [family law, child support, sanctions reversed, child support reduced to guideline amount] AFFIRMED AS MODIFIED: Opinion by Justice Seymore (Before Justices Hudson, Fowler and Seymore) 14-05-00846-CV Randall Gene Glash v. Arlene Sue Glash Appeal from 309th District Court of Harris County (Judge Frank Barlow Rynd) Three-Women Appellate Panel Orders Family Court Judge to Vacate Order Holding Husband in Contempt for Nonpayment of Alimony In Re Lozano (Tex.App.- Houston [1st Dist.] Sep. 14, 2006)(Keyes) (contempt, spousal support) GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Keyes Before Justices Keyes, Alcala and Bland                                 01-06-00655-CV In re Robert E. Lozano, Jr. Appeal from 312th District Court of Harris County (Hon. James Douglas Squier) (“We hold that the trial court abused its discretion in holding Robert in contempt for failure to pay spousal maintenance and for failure to pay installments on the house note. Accordingly, we conditionally grant Robert’s petition for writ of mandamus and direct the trial court to vacate its April 27, 2006 order of contempt. Our writ will issue only if the trial court fails to comply with this order.”) Equitable Property Rights Claim Based on Same-Sex Marriage-like Relationship Rejected on Public Policy Grounds Ross v. Goldstein (Tex.App.– Houston [14th Dist.] Sep. 14, 2006)(Fowler) [family law, probate, novel same sex marriage-like relationship doctrine rejected, romantic relationship, joint venture, constructive trust remedy, BoFD claim, special exceptions sustained, stand on pleadings, sufficiency of pleadings, dismissal of some claims reversed because not challenged by special exceptions or other procedural device, trial court erred by granting more relief than requested, no authority to strike claims sua sponte] AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Fowler Before Justices Hudson, Fowler and Seymore 14-05-00405-CV William Ross v. Scott Farrell Goldstein, as Independent Administrator of Estate of John David Green, Deceased Appeal from Probate Court No 1 of Harris County (name of judge omitted) Court examines standing for custody issue in sex-sex relationship context Hobbs v. Van Stayern (Tex.App.-Houston [1st Dist.] Nov. 2, 2006)(Higley) [family law, SAPCR, same sex relationship, adoption, standing as parent] AFFIRM TC JUDGMENT: Justice Higley (Before Justices Nuchia, Jennings and Higley) 01-05-00632-CV Julie Ann Hobbs v. Janet Kathleen Van Stavern Appeal from 306th District Court of Galveston County Termination of Parental Rights Reversed As To Father Admitting Paternity Tolivar v. DFPS (CPS) (Tex.App. - Houston [1st Dist.] Oct 26, 2006)(Jennings) [Admission of paternity need not be formal, sufficient to prevent termination without showing of statutory grounds] AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Justice Jennings Before Justices Nuchia, Jennings and Higley 01-06-00292-CV        Zenobia Tolivar, Muntravian Martin, and Marcus Holloway v. Department of Family and Protective Services Appeal from 306th District Court of Galveston County (“We hold that Martin, by appearing at trial before his rights were terminated and admitting that he was in fact Z.M.’s father, triggered his right to require DFPS to prove that he engaged in one of the types of conduct listed in section 161.001(1) before his parental rights could be terminated. Accordingly, we further hold that the trial court erred in finding that Martin did not timely file an admission of paternity and in terminating his parental rights to Z.M.”) Default Judgement Reversed Garcia v. Vera (Tex.App.- Houston [1st Dist.] Oct. 5, 2006)(Higley) [default judgment, family law, paternity suit, motion for new trial, extension of filing deadline] REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Higley Before Justices Nuchia, Jennings and Higley 01-05-01161-CV Lucas Martinez Garcia v. Leticia Maria Vera Appeal from 245th District Court of Harris County (Hon. Annette Galik now know as Annette Kuntz) We conclude that Garcia met the requirements of Craddock. When these requirements have been met, the trial court abuses its discretion if it denies a defaulting defendant a new trial. Sanctions Motion fell outside Court's plenary jurisdiction Philip v. Philip (Tex.App.- Houston [1st Dist.] Oct 5, 2006)(Hanks)(plenary jurisdiction, sanctions) AFFIRM TC JUDGMENT: Opinion by Justice Hanks (Before Justices Taft, Keyes and Hanks) 01-05-00627-CV Paul Randolph Philip, Jr. v. Ereka Washington Philip Appeal from 246th District Court of Harris County (Hon. Jim York ) Property Division Affirmed McKamie v. McKamie (Tex.App.- Houston [1st Dist.] Oct. 5, 2006)(Nuchia)(divorce property division) AFFIRM TC JUDGMENT: Opinion by Justice Nuchia (Before Justices Nuchia, Jennings and Higley) 01-05-00941-CV Reginald Edmund McKamie, Sr. v. Geneva Winfield McKamie Appeal from 308th District Court of Harris County (Hon. Georgia Dempster) Chief Justice Adele Hedges Writes Opinion in Divorce Attorney Fee Appeal Bowen v. Kuntz (Tex.App.- Houston [14th Dist.] Sep. 12, 2006)(Hedges)         [family law, divorce attorneys fees dispute, agreement incident to divorce, payment procedure] AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Brock Yates and Guzman 14-05-00769-CV Berry D. Bowen v. Hal G. Kuntz Appeal from 311th District Court of Harris County (Judge Douglas C. Warne) Late Notice of Appeal in Convoluted Case Defeats Jurisdiction and Dooms Appeal Gantt v. Gantt (Tex.App.- Houston [14th Dist.] Aug. 31, 2006)(Edelman)(subst. opinion) [family law, divorce, appellate procedure, bankruptcy stay, untimely notice of appeal, DWOJ, law of the case] DISMISSED: Opinion by Justice Edelman Before Chief Justice Hedges, Justices Edelman and Seymore) 14-03-00969-CV Jerry Gantt and Lisa Foster Gantt v. Carol B. Gantt Appeal from 309th District Court of Harris County (Judge Frank Barlow Rynd) (“We overrule appellee’s motion for rehearing, withdraw our opinion issued in this case on April 13, 2006, and issue this substitute opinion in its place.  In this divorce case, the parties appeal and cross-appeal a 2003 divorce decree and final judgment (the “2003 judgment”) on numerous grounds. We dismiss for lack of subject matter jurisdiction.“) Suit for Child Support Past 18 based on Mental Disability Found Barred for Lack of Standing - Legal Representative May Instead Sue to Vindicate Disabled Child's Rights Rasback v. Phillips (Tex.App.- Houston [14th Dist.] Aug. 24, 2006)(Fowler) [family law, child support past 18, disabled adult child, standing to sue, capacity, no standing, no jurisdiction, no denial of access to courts because representative may sue to vindicate adult child’s rights] AFFIRMED: Opinion by Justice Fowler Before Justices Hudson, Fowler and Seymore 14-05-00576-CV Roger Duane Rasbach, Jr. v. Jane Phillips, as Surviving Parent and Bank of America, N. A., as Trustee for the Winne Arnett Phillips Trust, the Herbert Houghton Phillips Trust, and/or any other trust and/ or substrusts having Jane Phillips as Beneficiary and/or other Financial Interest Appeal from 257th District Court of Harris County (Judge Linda Motheral, former family district court judge) Termination of Parental Rights in Spanking Case Reversed - Dissent on Unknown Father In Re JAJ (Tex.App.- Houston [14th Dist.] Aug. 10, 2006)(Hudson)(op. on rehr’g) [does corporal punishment constitute physical abuse supporting termination of parental rights?] AFFIRMED IN PART/REVERSED AND RENDERED: Opinion by Justice Hudson Before Justices Brock Yates, Hudson and Mirabal 14-04-01031-CV In the Interest of J.A.J Appeal from 314th District Court of Harris County (Hon. John Phillips) Concurring/Dissenting Opinion by Justice Mirabal (opinion on rehearing) [would reverse and remand; parental rights of unknown father, served by substitute service, should not have been terminated] Involuntary termination of parental rights is a serious matter implicating fundamental constitutional rights.   Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).  In order to terminate parental rights, the State bears the burden to prove both: (1) the parent engaged in one of the grounds for termination listed in section 161.001 (1) of the Texas Family Code; and (2) termination is in the child’s best interest.  Tex. Fam. Code Ann. §161. 001;  In re J.L., 163 S.W.3d 79, 84 (Tex. 2005).   Due to the severity and permanency of the termination of parental rights, the burden of proof at trial is heightened to the clear and convincing evidence standard.  Tex. Fam. Code Ann. § 161.001 (Vernon 2002); In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002).  This standard requires more proof than the preponderance of the evidence standard in civil cases, but less than the reasonable doubt standard in criminal cases.  In re J.F.C., 96 S.W.3d at 265-66.  “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.” Tex. Fam. Code Ann. § 101.007 (Vernon 2002). Aug 3, 2006 - Error in Award of Disability Benefits in Divorce Uncorrectable Baker v. Baker  (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Hanks)(on motion for rehearing) [divorce, division or property, retirement benefits, VA disability pay, motion for enforcement and clarification, motion to modify] AFFIRM TC JUDGMENT: Opinion by Justice Hanks Before Justices Nuchia, Keyes and Hanks 01-05-00178-CV Michael Allen Baker v. Karen Ruth Baker Appeal from 246th District Court of Harris County (Hon. Russell Lloyd) Asking the court to consider Baker’s VA disability pay through a motion for enforcement and clarification and not a motion to modify the divorce decree would have required the trial court to alter or change the substantive division of property and, thus, was a request beyond the power of the trial court. See Tex. Fam. Code Ann. § 9.007(b). Such relief can only be considered upon the timely filing of a motion to modify the divorce decree. See, e.g., Bloomer v. Bloomer, 927 S.W.2d 118, 119 (Tex. App.—Houston [1st Dist.] 1996, writ denied) (providing proper method to challenge characterization of military retirement benefits in final divorce decree). In a divorce, a trial court shall divide the parties’ marital estate in a manner that the court determines is just and right, having regard for the rights of each party and any children of the marriage. Tex. Fam. Code Ann. § 7.001 (Vernon 2003). However, once the marital estate is divided, a court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment. Tex. Fam. Code Ann. § 9.007 (b) (Vernon 2003). An order to enforce the division is limited to an order to assist in the implementation of or to clarify the prior order and may not alter or change the substantive division of property. Tex. Fam. Code Ann. § 9.007 (a) (Vernon 2003). An order that amends, modifies, alters, or changes the division of property made or approved in a final decree of divorce is beyond the trial court’s power and is unenforceable. Tex. Fam. Code Ann. § 9.007 (b). If the trial court finds that the original form of the division of property is not specific enough to be enforceable by contempt, it may render a clarifying order setting forth specific terms to enforce compliance with the original division of property awarded by the divorce decree. See Tex. Fam. Code Ann. § 9.008 (Vernon 2003). Clarifying orders may more precisely specify the manner of carrying out the property division previously ordered so long as the substantive division of the property is not altered. McPherren v. McPherren, 967 S.W.2d 485, 490 (Tex. App.—El Paso 1998, no pet.). Opinion Concurring with this Court's Judgment: Opinion by Justice Keyes (“Donovan’s 50% interest in Baker’s military retirement benefits became a vested right in the final divorce decree that issued in 1987. Even though the trial court improperly awarded Donovan benefits that, by statute, were Baker’s separate property, Baker did not timely complain. Under Berry and its progeny, the division of property in the divorce decree is res judicata, and the property may not now be reapportioned. See Berry, 786 S.W.2d at 673; Trahan, 894 S.W.2d at 119; Jones v. Jones, 900 S.W.2d 786, 787–88 (Tex. App.—San Antonio 1995, writ denied) (holding that res judicata barred former husband’s collateral attack on final unappealed divorce decree entitling former wife to portion of military retirement pay when husband argued that disability benefits he accepted in lieu of retirement benefits were not subject to division). I, therefore, concur with the majority that the judgment of the trial court should be affirmed.”) Award of assets to one spouse and liabilities to other affirmed Combe-Obadia v. Combe Ovadia (Tex.App.– Houston [14th Dist.] August 3, 2006)(Hudson) [appeal of property division, award of more liabilities than assets, waste of community assets as a factor, under-reporting of income, economic contribution disputed] AFFIRMED: Opinion by Justice Hudson Before Justices Hudson, Frost and Seymore 14-04-01028-CV Patrick J. Combe-Ovadia v. Amarit Gonzalez Combe-Ovadia Appeal from 245th District Court of Harris County (Judge G. Annette Galik)(family court) First Court of Appeals Justices divided over sanctions for mother's attempt to thwart kids' trip abroad with ex parte restraining order Keith v. Keith (Tex.App.–Houston [1st Dist.] July 20, 2006)(majority opinion by Tim Taft) AFFIRM TC JUDGMENT: Opinion by Justice Tim Taft Before Justices Taft, Keyes and Hanks 01-04-01214-CV Sharon Kay Keith v. Randall Dean Keith Appeal from 312th District Court of Harris County (Hon. James Squier) Keith v. Keith (Tex.App.–Houston [1st Dist.] July 20, 2006)(Keyes, dissenting) OPINION DISSENTING TO THIS COURT'S JUDGMENT: Opinion by Justice Evelyn Keyes Before Justices Taft, Keyes and Hanks 01-04-01214-CV Sharon Kay Keith v. Randall Dean Keith Appeal from 312th Family District Court of Harris County  (Judge James D. Squier) Supreme Court Finds No Economic Duress in Alimony Agreement Sudan v. Sudan No. 04-0921 (Tex. June 30, 2006)(per curiam) [divorce agreement, alimony, spousal support, no economic duress] PHILIP P. SUDAN, JR. v. MARGARET DYE SUDAN, NOW KNOWN AS MAGGIE MACKENZIE; from Harris County; 14th district (14 01 00854 CV, 145 SW3d 280, 06 17 04) 2 petitions Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petitions for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment. ("In this suit to enforce a settlement agreement incorporated in a divorce decree, we consider whether there is any evidence that the ex-wife was coerced into relinquishing her rights to future alimony payments. The court of appeals reversed a summary judgment in favor of the ex-husband, concluding there was some evidence that the ex-wife was under economic duress when she gave up her rights. 145 S.W.3d 280, 288. We disagree that there is evidence of economic duress here and accordingly render judgment for the ex- husband.") Commitment Order for Failure to Pay Alimony Held Void In Re Joseph Peter Eguia (Tex.App.–Houston [14th Dist.] July 6, 2006)(per curiam) [judgment of contempt for failure to pay temporary spousal support was entered, habeas corpus relief granted, commitment order void, lacking essential elements] MOTION OR WRIT GRANTED: Per Curiam. Before Justices Anderson, Edelman and Frost) 14-06-00516-CV In Re Joseph Peter Eguia Appeal from 309th District Court of Harris County [name of judge not shown] ("A judgment of contempt for failure to pay temporary spousal support was entered against relator on June 8, 2006, by the 309th District Court of Harris County.  Relator was incarcerated pursuant to a commitment order contained within the judgment. Relator contends the commitment order is void because it does not list the dates and amounts of the payments he allegedly failed to make and lists an ambiguous release date.   We agree.  Family Code Section 157.166 requires that the dates and amounts of failed payments and the date of release be contained within a commitment order.  Tex. Fam. Code Ann. §157.166 (Vernon 2005).   This required information is not listed in the commitment order in this case.  Therefore, the commitment order is void.  See Ex parte Garcia, 795 S.W.2d 740, 741 (Tex. 1990).  Accordingly, we grant relator’s petition for writ of habeas corpus. Family Judge Send Mother to Jail for Nonpayment of Child Support - Court of Appeals Keeps Her There In Re D’Juana Parr (Tex.App.-Houston [1st Dist.] July 6, 2006)(orig. proc.)(Higley) DENY PETITION FOR WRIT OF HABEAS CORPUS: Opinion by Justice Laura Higley Before Justices Jennings, Hanks and Higley 01-05-01162-CV IN RE D'JUANA PARR Appeal from 247th District Court of Harris County - Hon. Bonnie Hellums (“We remand D’Juana to the custody of the Sheriff of Harris County to serve the balance of her punitive contempt confinement ordered by the trial court.”) Differences in Injunctions in Civil and Family Courts Noted-Temporary May Be Permanent In re B.G. and A.G. (Tex.App.–Houston [14th Dist.] June 15, 2006)(Seymore) [SAPCR, motion to modify, modification, injunction: civil  litigation v. family code, temporary v. permanent] AFFIRMED: Opinion by Justice Seymore Before Justices Hudson, Frost and Seymore 14-04-00944-CV In the Interest of B.G. and A.G. Appeal from 246th District Court of Harris County (Hon. Jim York) Marital Property Division in No-Fault Scenario: Mathematical 50:50 Split not Required Hawkins v. Hawkins (Tex.App.–Houston [14th Dist.] June 20, 2006)(Seymore) [property division in no-fault divorce; split need not be exactly 50:50 in light of other factors, incl. disparity in earnings capacity] AFFIRMED: Opinion by Justice Seymore Before Justices Hudson, Fowler and Seymore 14-05-00117-CV Richard E. Hawkins v. Amy Hawkins Appeal from 328th District Court of Fort Bend County (Judge Ronald R. Pope) Mother Has No Standing on Custody Issue After Her Parental Rights Were Terminated All-female Panel of Fourteenth Court of Appeals Says In re H.M.M  (Tex.App–Houston [14th Dist.] June 6, 2006)(Hedges) [nonparent standing, biological parent whose rights were terminated has no standing to assert interest in subsequent custody determination] AFFIRMED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Brock Yates and Guzman 14-05-00559-CV In the Interest of H.M.M, a Child Appeal from 278th District Court of Walker County (“Appellant Lashawn Mays, the biological mother of H.M.M., appeals the trial court’s failure to grant sole custody to her father after it terminated her parental rights and ordered that H.M.M. remain in the custody of Child Protective Services. Because appellant has no standing to challenge the trial court’s order, we affirm.”) Texas Supreme Court Dismisses Appeal of Order Setting Aside a False Prior Paternity Adjudication in a Divorce Decree Because Bill-of-Review Summary Judgment Did Not Adjudicate Biological Paternity and Was Thus Not a Final Appealable Judgment Kiefer v. Touris (Tex. May 26, 2006)(per curiam) [Bill of review, set aside prior determination of paternity, nonpaternity; wife had child with another man while married, subsequent divorce decree adjudicated child as child of the marriage, trial court granted biological father’s bill of review by summary judgment, set aside the parentage adjudication in the divorce decree, but did not enter a new adjudication of child’s parentage] (“In this case we consider whether a judgment in a bill of review proceeding that sets aside a parentage adjudication, but does not make a new parentage adjudication, is an appealable judgment. We conclude that it is not. “)(Mother had affair resulting in birth of child while married, then divorced; bio dad filed suit to establish his paternity) Texas Supreme Court Rules on Child Support Consequences of Informal Custody Switch In re A.M and B.M. (Tex. May 5, 2006)(Opinion by Justice Medina) [custody switch and child support off-set and reimbursement claims, either-or or both, actual support, presumption or what proof required?] The Court reverses the court of appeals' judgment and remands the case to the trial court. From the opinion: In this case, we must decide under what circumstances a parent, who has been ordered to pay periodic child support, may raise the affirmative defense of Texas Family Code section 157.008 to a suit to collect that support. The statute provides that an obligor parent, who by agreement has possessed a child for periods exceeding court-ordered possession, and who has provided actual support for the child during such period, “may request reimbursement for that support as a counterclaim or offset against the claim of the obligee [parent].” Tex. Fam. Code § 157.008(d). The court of appeals concluded that this statute provided the obligor both an offset and an affirmative right to reimbursement for periodic child support payments during a period of excess possession, that the obligor did not have to provide an accounting of expenses to receive this relief, and that the Attorney General, as assignee of the obligee parent’s right to enforce the child support order, could litigate offsets, but could not defend against an affirmative claim for reimbursement from the obligee. 101 S.W.3d 480. Because we disagree that section 157.008 permits the obligor to obtain both an offset and affirmative reimbursement for the same periodic payment, and further disagree that the Attorney General lacks standing to litigate any part of the defense provided by this statute, we reverse. Justice Johnson delivered a concurring and dissenting opinion: I agree with the court of appeals’ conclusion that the absence of evidence that Chism or anyone other than Mullen provided support for the children during the time that Mullen had possession of them would allow an inference that Mullen provided some level of actual support for that period of time. ...  I do not agree, as the majority concludes, that the inference of some support allows a second inference, labeled as a presumption, that Mullen provided actual support in the specific amount of his monthly child support obligation. Mullen was statutorily obligated to prove the amount of support he provided in order to receive an offset or reimbursement.  In my view, Mullen is entitled to offset only the amount of actual support he proved and the trial court found, subject to proper appellate review and limited as provided by statute.”) Houston Court of Appeals Panel Voids Contempt Order In re: Stenson (Tex.App. - Houston [14th Dist.] May 11, 2006)(Anderson) [Child support enforcement, habeas corpus relief granted, ambiguous order of contempt is void, court did not address whether attorneys fees enforceable by contempt, release ordered] MOTION OR WRIT GRANTED: Opinion by Justice Anderson Before Justices Anderson, Edelman and Frost 14-06-00094-CV In Re: Dwayne Thomas Stenson Appeal from 257th District Court of Harris County (Judge Judy L. Warne) ("Because we conclude that the contempt order is void, we grant relator’s habeas corpus petition, order relator released from the bond set by this Court on February 8, 2006, and order relator discharged from custody.")   Kids' Preference to be Considered in Custody Determination In Re Talis Lee Rand Delany  (Tex.App.–Houston [14th Dist.] May 4, 2006)(per curiam) [Child’s selection of managing conservator, minor's affidavit of selection was intended by the Legislature to be received and considered as evidence] MOTION OR WRIT DENIED: Per Curiam Opinion Before Justices Hudson, Fowler and Seymore) 14-06-00188-CV In Re Talis Lee Rande Delaney   Appeal from 257th District Court of Harris County Medically Assisted Reproduction and Divorce: Who Gets Control of the Embryos? Houston appeals court panel reverses trial court's award of frozen embryos to wife to give effect to prior written agreement between former spouses; avoids constitutional reproductive rights issues. Roman v. Roman (Tex.App.-- Houston [1st Dist.] 2006 Opinion by Justice Evelyn Keyes)   (Before Justices Taft, Keyes and Hanks) REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS: 01-04-00541-CV Randy M. Roman v. Augusta N. Roman Appeal from the 310th District Court of Harris County (Family District Court Judge Lisa Millard). From Justice Evelyn Keyes' opinion: "We hold that the embryo agreement provides that the frozen embryos are to be discarded in the event of divorce. By awarding the frozen embryos to Augusta, the trial court improperly rewrote the parties’ agreement instead of enforcing what the parties had voluntarily decided in the event of divorce. Accordingly, the trial court abused its discretion in not enforcing the embryo agreement. ... We reverse the judgment and remand the cause to the trial court to enter an order consistent with this opinion and with the parties’ agreement that the frozen embryos be discarded. All pending motions are denied." Termination of Parental Rights - No interlocutory appellate jurisdiction if order not final In re M.A.H.  (Tex.App.–Houston [14th Dist.] May 4, 2006)(per curiam) DISMISSED: Per Curiam Opinion [Termination of parental rights, no final judgment of termination, no interlocutory appellate jurisdiction, ILA] Before Chief Justice Hedges, Justices Brock Yates and Guzman) 14-06-00190-CV In the Interest of M.A.H., a Child Appeal from 310th District Court of Harris County Termination of Parental Rights Cases Cervantes-Peterson v. Department of Family and Protective Services (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Jennings)(en banc) [termination of parental rights, drug baby] AFFIRM TC JUDGMENT: Opinion by Justice Jennings Before Chief Justice Radack, Justices Taft, Nuchia, Jennings, Keyes, Alcala, Hanks, Higley and Bland 01-05-00307-CV Kovey Amanette Cervantes-Peterson a/k/a Kovey Peterson Cervantes a/k/a Kovey Turner Cervantes v. Department of Family and Protective Services Appeal from 314th District Court of Harris County (Hon. John Phillips) Ruiz v. Dept. of Family and Protective Serv’s [CPS]  (Tex.App.– Houston [1st Dist.] Aug. 3, 2006)(Jennings) [termination of parental rights reversed, child neglect] REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Jennings Before Justices Jennings, Hanks and Higley 01-05-00556-CV Monica Ruiz v. Department of Family and Protective Services Appeal from 314th District Court of Harris County (Hon. John Phillips) Appeals Court Denies Relief re: Andrea Yates' Retrial For Murdering Her Kids March 17, 2006  In Re Andrea Yates (Tex.App.--Houston [1st Dist.] 2006)(per curiam) DENY PETITION FOR WRIT OF PROHIBITION: Per Curiam Opinion Before Chief Justice Radack, Justices Taft and Nuchia 01-06-00221-CR        In Re Andrea Pia Yates Appeal from 230th District Court of Harris County March 16, 2006  Ex Parte Andrea Yates (Tex.App.--Houston [1st Dist.] 2006)(Nuchia) AFFIRM TC JUDGMENT [trial court's denial of habeas corpus relief]: Opinion by Justice Nuchia [alleged prosecutorial misconduct based on false testimony by expert at trial; appellant failed to show DA had reason to question veracity of Dr. Dietz's testimony; no affirmative duty to independently investigate witness testimony before using it when State had no reason to doubt its veracity; no prosecutorial misconduct shown] Before Chief Justice Radack, Justices Taft and Nuchia 01-06-00222-CR   EX PARTE ANDREA PIA YATES Appeal from 230th District Court of Harris County Prior murder conviction reversed in Yates v. State, 171 S.W.3d 215, 220 (Tex.App.--Houston [1st Dist.] 2005, pet, ref'd) Grandparent  Visitation: Texas Supreme Court Denies Access In re Karen Mays-Hooper No. 04-1030 (Tex. 2006) [grandparent access to children, mandamus proceeding] ("We conditionally grant mandamus relief and direct the trial court to vacate its order of September 21, 2004 granting grandparent possession.“) See U.S. Supreme Court's Decision in Troxel v. Granville, 530 U.S. 57 (2000) Also see OP. TEX. ATT'Y GEN, No. GA-0260 ("a Court must require a grandparent to "overcome the presumption that a fit parent acts in the best interest of his or her child"") In re Wood (Tex.App--Houston 2006) [Grandparent access to children, discovery motion, scope of discovery, irrelevant questions] GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Tim Taft Before Justices Taft, Higley and Bland 01-06-00014-CV   In Re: Elizabeth Wood Appeal from 12th District Court of Grimes County Parentage: Man adjudicated to be father by default judgment while in jail   not entitled to challenge paternity issue by Bill of Review Nelson v. Chaney (Tex.App. - Houston [1st Dist.] Mar. 24, 2006)(Keyes) [Bill of review to set aside paternity default judgment, summary judgment affirmed) AFFIRM TC JUDGMENT: Opinion by Justice Keyes (Before Justices Nuchia, Keyes and Hanks) 01-04-01058-CV Donald Nelson v. Evangeline Chaney Appeal from 312th District Court of Harris County (Judge Jim Squier) Petitioner’s attorney: Ronald G. Ray Respondent’s attorneys: Kathryn Marie Diaz, Rhonda Pressley, John B. Worley Retroactive Child Support Properly Denied in Light of Statutory Factors and Facts in Case Forde v. Martinez (Tex.App.-Houston [14th Dist.] April 13, 2006)(Edelman) [denial of retroactive child support affirmed, Family Code guideline factors to be considered by trial court in determining how much should be ordered, if any; trial court made findings] AFFIRMED: Opinion by Justice Richard Edelman Before Judge Murphy, Justices Edelman and Guzman (Senior Chief Justice Paul C. Murphy sitting by assignment) 14-04-00714-CV Jessica Forde v. Edwin Geovani Martinez Appeal from 300th District Court of Brazoria County, Judge K. Randall Hufstetler Spousal Support (Alimony) Disabled Former Spouse Limited to 12 Months Stewart v. Stewart (Tex.App.–Houston [1st Dist.] April 20, 2006)(Radack) [spousal maintenance limitation to 12 months affirmed despite disability] AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Jennings and Alcala 01-04-01126-CV Lynne Stewart v. Darrell Lynn Stewart Appeal from 387th District Court of Fort Bend County Mandamus Relief Against Contempt Based on Violation of Temporary Support Order Denied In re John W. Small (Tex.App.- Houston [14th Dist.] June 1, 2006)(per curiam) [contempt order, temporary support, mandamus denied] MOTION OR WRIT DENIED: Per Curiam Before Justices Hudson, Fowler and Seymore 14-06-00383-CV In Re: John W. Small Appeal from County Court at Law No 1 of Galveston County On May 1, 2006, relator John W. Small filed a petition for writ of mandamus in this Court, requesting we direct the Honorable Mary Nell Crappito, presiding judge of County Court No. 1, Galveston County, to deny any motion for enforcement of temporary support filed by real party Murriah McMaster, to reverse a contempt and commitment order holding relator in contempt for failure to pay temporary support to McMaster, and to modify the temporary support order.   See Tex. Gov’t Code Ann. '22.221 (Vernon 2004); see  also  Tex. R. App. P. 52.1.   Because relator has failed to establish he is entitled to the requested mandamus relief, we deny relator’s petition for writ of mandamus. Other Alimony Cases Owens v. Owens (Tex.App.–Houston [14th Dist.] July 6, 2006)(Frost) [alimony, separation agreement, divorce judgment, summary judgment] OVERRULED: Opinion by Justice Frost Before Justices Hudson, Frost and Seymore 14-04-00728-CV Gerald T. Owens v. Sally Farrier Owens Appeal from 312th District Court of Harris County (James D. Squier )(summary judgment)