Trends In The Appellate Courts

By: Georganna Simpson and Elizabeth Hearn

  1. INTRODUCTION
  2. OPINIONS VERSUS MEMORANDUM OPINIONS
  3. REPORTED NON-TERMINATION FAMILY LAW OPINIONS STATISTICS2
  4. MEDIATED SETTLEMENT AGREEMENTS AND IN RE LEE
  5. MANDAMUS OF ASSOCIATE JUDGES’ RULINGS
  6. CONDITIONAL APPELLATE ATTORNEY’S FEES
  7. MODIFICATION OF TEMPORARY ORDERS IN SAPCRS
  8. THE TRIAL COURT CANNOT CHANGE CONSERVATOR WITH RIGHT TO DESIGNATE THE PRIMARY RESIDENCE OF THE CHILD DURING PENDENCY OF MODIFICATION
  9. JUDICIAL ADMISSIONS TO MATERIAL AND SUBSTANTIAL CHANGE
  10. UNDER- / UNEMPLOYMENT
  11. ACTUAL CARE, CONTROL, AND POSSESSION
  12. INFORMAL MARRIAGES AND FAULT-BASED DIVORCES

I. INTRODUCTION

A “trend” is defined by Merriam-Webster as “a general direction of change [or] a way of behaving, proceeding, etc., that is developing and becoming more common.” Merriam-Webster.com. Over the past seven years, certain notable trends have become apparent in the family law opinions issued by the courts of appeals. For example, there has been a marked increase in Memorandum Opinions accompanied by a sudden decrease in reported Opinions from some of the courts of appeals. Nonetheless, there have been some interesting holdings in family-law Memorandum Opinions that should not be overlooked. Also, the courts have addressed but have not reached a consensus regarding the breadth of In re Lee, as well as what constitutes “actual care, control, and possession” for the purposes of standing to initiate a suit affecting the parent-child relationship. This paper discusses these trends, among others, thathave been developing over the past seven years.

II. OPINIONS VERSUS MEMORANDUM OPINIONS

As an initial matter, it is important to understand the distinction between Opinions and Memorandum Opinions. In 1941, when the first Texas Rules of Civil Procedure were promulgated, in an effort to control the growing bulk of case law each year, Rule 452 instructed the courts of appeals to only publish cases that presented new or important questions or applications of law. Andrew T. Solomon, Practitioner’s Beware: Under Amended TRAP 47, “Unpublished” Memorandum Opinions are Binding and Research on Westlaw and Lexis is a Necessity, 40 St. Mary’s L.J. 693, 698–701 (2009). In 1986, Rule 452 was redesignated as Rule 90 and modified to provided that unpublished opinions should not be cited by counsel or by a court. Id. at 703. In 1997, Rule 90 was renumbered as part of Rule 47, and the prohibition against citing unpublished opinions was removed, but the unpublished cases still lacked precedential authority. Id.

Now, pursuant to the January 1, 2003 revisions, Texas Courts of Appeals publish all opinions and designate them as either “Opinions” or “Memorandum Opinions.” Specifically, Texas Rule of Appellate Procedure 47.2(a) provides:

(a) Civil and Criminal Cases. Each opinion of the court must be designated either an “Opinion” or a “Memorandum Opinion.” A majority of the justices who participate in considering the case must determine whether the opinion will be signed by a justice or will be per curiam and whether it will be designated an opinion or memorandum opinion. The names of the participating justices must be noted on all written opinions or orders of the court or a panel of the court.

Tex. R. App. P. 47.2(a). The commentary to this section provides:
Effective January 1, 2003, Rule 47 was amended to prospectively discontinue designating opinions in civil cases as either “published” or “unpublished.” Subdivision 47.7 is revised to clarify that, with respect to civil cases, only opinions issued prior to the 2003 amendment and affirmatively designated “do not publish” should be considered “unpublished” cases lacking precedential value. All opinions and memorandum opinions in civil cases issued after the 2003 amendment have precedential value. The provisions governing citation of unpublished opinions in criminal cases are substantively unchanged. Subdivisions 47.2 and 47.7 are amended to clarify that memorandum opinions are subject to those rules.

Tex. R. App. P. 47.2 Editor’s Notes. Thus, all opinions from the courts of appeals issued in and after 2003 have precedential value regardless of whether they are labeled “Opinion” or “Memorandum Opinion.” Contrarily, certain opinions prior to 2003 specifically designated “do not publish” have no precedential value and may only be cited with the notation “(not designated for publication).” Tex. R. App. P. 44.7(b).

While Memorandum Opinions issued during or after 2003 have precedential value, the designation implies that holdings in Memorandum Opinions are not new or noteworthy. Texas Rule of Appellate Procedure 47.4 provides:If the issues are settled, the court should write a brief memorandum opinion no longer than necessary to advise the parties of the court’s decision and the basic reasons for it. An opinion may not be designated a memorandum opinion if the author of a concurrence or dissent opposes that designation. An opinion must be designated a memorandum opinion unless it does any of the following:

  • establishes a new rule of law, alters or modifies an existing rule, or applies an existing rule to a novel fact situation likely to recur in future cases;
  • involves issues of constitutional law or other legal issues important to the jurisprudence of Texas;
  • criticizes existing law; or
  • resolves an apparent conflict of authority.

Tex. R. App. P. 47.4. Thus, if the issuing court of appeals determines that the opinion is not legally important, as described in Texas Rule of Appellate Procedure 47.4, then the court may designate the opinion as a “Memorandum Opinion.” Additionally, Memorandum Opinions are not included in West’s Southwest Reporter Series and are, thus, “unreported” opinions.

Previously, under the 1997–2003 rules, a party could move the appellate court to reconsider its decision regarding the publication of an opinion. Tex. R. App. P. 47.3(c), 60 Tex. B.J. 925 (Tex. 1997, amended 2003). While this procedural mechanism still exists for criminal opinions, it is no longer an option in the Texas Rules of Appellate Procedure for opinions in civil cases. See Tex. R. App. P. 47.2(b).

When an opinion is designated “Memorandum Opinion,” a legal researcher may assume that given the directive of Texas Rule of Appellate Procedure 47.4, the opinion does not include any new or meaningful changes to the current law. However, there are occasions when an appellate court’s holding in a memorandum opinion does, in fact, have a meaningful impact on family law practice. See, e.g., In re Casanova, No. 05-14-01166-CV, 2014 WL 6486127 (Tex. App.—Dallas 2014, orig. proceeding)(mem. op.)(holding that a movant seeking to modify temporary orders in an original child-custody proceeding must establish the current situation under existing temporary orders endangers or is harmful to the child);1 In re Jafarzadeh, No. 05-14-01576-CV, 2015 WL 72693 (Tex. App.—Dallas 2015, orig. proceeding)(mem. op.)(holding that unconditional appellate attorney’s fees may be awarded in suits affecting the parent-child relationship).

While, for the most part, opinions designated as Memorandum Opinions do not include new law or other issues “important to the jurisprudence of Texas,” it is important not to overlook an opinion that addresses a particularresearch topic merely because the opinion is designated as a “Memorandum Opinion.”

III. REPORTED NON-TERMINATION FAMILY LAW OPINIONS STATISTICS2

One of the most notable trends in the past three terms has been the marked decrease in “Opinions” and a corresponding increase in “Memorandum Opinions” along with a drastic change in both the number of and which appellate courts are issuing family-law Opinions. The appellate courts’ terms run from September 1 through August 31 each year, so the 2014–2015 term runs from September 1, 2014 through August 31, 2015. Beginning with the 2012–2013 term, the number of family-law Opinions has been dropping significantly.

Term Total Number of Non-termination Faimly Law Opinions3
2008-2009 69
2009-2010 81
2010-2011 81
2011-2012 79
2012-2013 54
2013-2014 55
2014-2015(partial) 354

During the 2008–2009 term, the large majority of family-law Opinions were issued by the Fifth District Court of Appeals in Dallas. In that term, Dallas issued 29 of the 69 family-law Opinions, with the 14th District Court ofAppeals in second place with only 8 family-law Opinions. During the 2009–2010 term, the number of family-law Opinions issued by Dallas was reduced by about half and has remained roughly the same from the 2009–2010 termthrough the 2013–2014 term. However, so far, surprisingly Dallas has issued only one family-law Opinion through the first nine months of the 2014–2015 term.

The two Houston Courts of Appeals, on the other hand, has been steadily increasing the family-law Opinions that they have issued. In 2009–2010 term, the 1st and 14th Districts combined issued only 16% of the total number of family-law Opinions. Last term, the Houston Courts of Appeals issued over a third of all family-law Opinions. So far this term, the Houston Courts of Appeals have issued nearly 75% of the family-law Opinions.

The Eighth Court of Appeals in El Paso and the Fourth Court of Appeals in San Antonio have also issued a relatively steady stream of family-law Opinions over the years, with the remaining courts of appeals generally only issuing one or two family-law Opinions each term. Although, so far this term, eight of the courts of appeals have yet to issue even one family-law Opinion. The chart below shows the percent share of family-law Opinions for each court of appeals since the 2008–2009 term

NOTES:

1This Memorandum Opinion was listed second in a search for “safety and welfare” and “temporary orders” on the State Bar of Texas’ FastCase research site. The first-listed opinion was In re Stephanie Lee.
2This paper does not include parental-rights termination cases in its statistical analysis.
3For additional statistics, see Appendix A.
4As of May 31, 2015. This count puts the Courts of Appeals on track to issue a total of 46–47 Opinions during the 2014–2015 term.

2008–2009 2009–2010 2010–2011 2011–2012 2012–2013 2013–2014 2014–20155
Houston [1st Dist.] 4% 14% 5% 10% 13% 15% 37%
Fort Worth 6% 11% 6% 10% 2% 2% 3%
Austin 3% 7% 5% 3% 0% 2% 0%
San Antonio 6% 11% 21% 14% 17% 9% 6%
Dallas 42% 21% 16% 22% 17% 25% 3%
Texarkana 4% 4% 6% 10% 6% 5% 0%
Amarillo 6% 5% 4% 3% 7% 2% 0%
El Paso 6% 15% 10% 10% 9% 11% 14%
Beaumont 4% 2% 2% 3% 2% 0% 0%
Waco 3% 0% 0% 0% 4% 0% 0%
Eastland 3% 0% 2% 3% 2% 0% 0%
Tyler 0% 0% 0% 1% 2% 0% 0%
Corpus Christi 1% 0% 1% 0% 0% 4% 0%
Houston [14th Dist.] 12% 10% 21% 13% 20% 25% 37%

Because all opinions issued since 2003 now have precedential value, all family-law opinions, including the Memorandum Opinions, shape the scope and direction of Texas family law. However, because the two HoustonCourts of Appeals have been issuing the vast majority of the non-termination Texas family-law Opinions, attorneys and courts may begin to rely on those Opinions more than equally precedential Memorandum Opinions from other districts.

This paper reviews trends in the appellate courts since the 2008–2009 term, and although many of the notable cases have been Opinions (or issued by the Texas Supreme Court), there were also a handful of Memorandum Opinions worthy of mention during that time period. The first case this paper addresses is a Texas Supreme Court opinion that should be well-known by now to all Texas family-law attorneys.

As of May 31, 2015.

IV. MEDIATED SETTLEMENT AGREEMENTS AND IN RE LEE

Almost two years have passed since In re Stephanie Lee was decided by the Texas Supreme Court, yet its ultimate effect continues to be debated. At first glance, the opinion seems to hold that mediated settlement agreements are essentially unchallengeable so long as the agreement meets the Family Code’s statutory requirement. However, upon closer review, In re Lee does not apply as broadly as many may have initially believed. In re Lee held that absent a finding of family violence, a statutorily compliant mediated settlement agreement may not be set aside on the basis of a best interest review. 411 S.W.3d 445, 461 (Tex. 2013) (citing Tex. Fam. Code § 153.0071).

In In re Lee, the parents reached a mediated settlement agreement in their SAPCR proceeding. 411 S.W.3d at 447. The agreement provided that the mother would have periodic possession and access to their child and that mother’s new husband, who was a registered sex-offender, would be enjoined from being within five miles of the child. Id. at 447–48. At the hearing to prove up the agreement, the father informed the associate judge that mother’s new husband had violated conditions of his probation while the child was in the house and that the husband had slept naked in bed with the child between him and the mother. Id. at 448. Based on the father’s testimony, the associate judge refused to enter judgment on the mediated settlement agreement. Id. Subsequently, upon de novo review, the district judge concluded the agreement was not in the best interest of the child and also refused to enter judgment on the agreement. Id. at 449. The court of appeals agreed with the trial court, and the mother petitioned the Texas Supreme Court for a writ of mandamus. Id.

The Texas Supreme Court held that because the agreement met the Texas Family Code’s requirement for a binding agreement, and because there was no finding of family violence, the trial court abused its discretion in refusing to enter judgment on the agreement. Id. at 461. The court noted the policy recognized by the Texas Legislature to encourage peaceable resolution of disputes, especially in suits involving the parent-child relationship. Id. at 449 (citing Tex. Civ. Prac. & Rem. Code § 154.002). Moreover, Texas Family Code Section 153.0071(e) provides that a party to a mediated settlement agreement is “entitled to judgment” on a mediated settlement agreement if it meets Subsection (d)’s requirements. Id. at 452. Subsection (e-1) provides only a narrow exception to this mandate by allowing a court to set aside an otherwise compliant mediated settlement agreement if there is a finding of family violence. Id.

The concurrence observedthat while Texas Family Code Section 153.0071 precludes a best-interest inquiry, it does not preclude an endangerment inquiry. Id. at 462. While there is a “time-honored presumption that fit parents act in the best interests of their children,” a contextual reading of the Family Code as a whole permits a narrow inquiry into whether judgment on a mediated settlement agreement could endanger the safety and welfare of a child. Id. at 463–64 (quoting Troxel)(internal quotes omitted). Nevertheless, in the case at hand, the concurrence opined that based on the sparse record before the court, the evidence was legally insufficient to support an endangerment finding. Id. at 464.

After In re Lee, it has remained unsettled as to whether a statutorily compliant mediated settlement agreement may be set aside based on a common-law claim that the agreement was procured by fraud, duress, coercion, or other dishonest means. See In re Hanson, No. 12–14–00015–CV, 2015 WL 898731, at *4 (Tex. App.—Tyler 2015, orig. proceeding)(mem. op.); In re Lechuga, No. 07–15–00088–CV, 2015 WL 2183744, at *2 (Tex. App.—Amarillo 2015, orig. proceeding)(mem. op.).

In Hanson, the court held that based on dicta and the concurrences in In re Lee, trial courts are not obligated to enforce an otherwise statutory complaint mediated settlement agreement that was procured through fraud, duress, coercion, or other dishonest means. Hanson, 2015 WL 898731, at *4. However, in Lechuga, the court of appeals chose not to address the issue, finding that the issue had not yet been properly presented for review. Lechuga, 2015 WL 2183744, at *2.

One court of appeals has held that a trial court is not required to enforce a mediated settlement agreement that attempts to contractually override a venue provision. In re Lovell-Osburn, 448 S.W.3d 616, 620 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding [mand. pending]). In Lovell-Osburn, the parties attempted to predetermine venue for future disputes without regard as to where the parties may reside at that time and without regard for the best interest of the child. Id. at 618. The court of appeals held that because venue selection cannot be the subject of private contract unless otherwise provided by statute, the parties could not override mandatory venue provisions through a mediated settlement agreement. Id. at 620.

What must be done with an ambiguous agreement is also not entirely clear. One case that partially addressed the topic clearly provided that a final decree could not be entered based on an ambiguous mediated settlement agreement until the ambiguity was resolved. Milner v. Milner, 361 S.W.3d 615, 622 (Tex. 2012). However, the practical matter of how to resolve the ambiguity was less clear. In Milner, an ambiguity existed as to the nature of the husband’s partnership interest purported to be conveyed to the wife through a mediated settlement agreement. Id. at 617. The mediated settlement agreement provided that the parties would return to mediation in the event of a dispute regarding the drafting of the final decree and that the mediator would arbitrate the dispute and make a final decision on the matter. Id. at 622. Thus, the Texas Supreme Court determined that because a final decree could not be rendered until the ambiguity was resolved, arbitration with the mediator was necessary under the agreement to resolve the ambiguity. Id. So, if a mediated settlement agreement includes an arbitration clause, the path is clear. However, if there is no arbitration clause, and if the ambiguity cannot be resolved, a court may be faced with no other option than to set aside an otherwise compliant mediated settlement agreement.

V. MANDAMUS OF ASSOCIATE JUDGES’ RULINGS

The next trend this paper discusses involves the relief available after receiving an unfavorable ruling from an associate judge. Although standard practice is to seek de novo review from the trial court, two recent Fort Worth Memorandum Opinions have granted writs of mandamus for associate judge’s rulings under limited circumstances. In re E.M., No. 02-14-00403-CV, 2015 WL 128739 (Tex. App.—Fort Worth 2015, orig. proceeding)(mem. op.); In re Eaton, No. 02-14-00239-CV, 2014 WL 4771608 (Tex. App.—Fort Worth 2014, orig. proceeding)(mem. op.).

In E.M., the father filed a petition for writ of mandamus after an associate judge granted the wife a temporary order that had the effect of changing the designation of the person with the right to designate the primary residence of the child. E.M., 2015 WL 128739, at *1. The father filed a timely request for a de novo review with the referring judge, but the de novo hearing was set to occur after the associate judge’s ruling was to take effect. Id. The court of appeals determined that the associate judge abused her discretion by changing the designation of the person with the right to designate the primary residence of the child through a temporary order. Id. at *2. Thus, the court of appeals granted the father a writ of mandamus and ordered the associate judge to stay her ruling until after the de novo hearing. Id.

In Eaton, the parties separated and signed a post-marital separation agreement that would provide for “a full, final, fair, and equitable division of their community estate effect as of [the date of their separation].” Eaton, 2014 WL 4771608, at *1. The agreement provided that all future earnings would be the separate property of the respective party, and each would waive any claim to the separate property of the other. Id. Further, the husband agreed to continue to provide medical coverage for the wife through his employer and to pay the wife a lump sum followed by periodic payments for the next two years. Id. In exchange for the payments, the wife agreed any claim she might have against the husband or the community estate would be fully satisfied by the agreement. Id.

Three years after the final periodic payment from the husband, the wife filed a petition for divorce asking for a disproportionate share of the community estate. Id. The husband answered and asserted that the separation agreement should be enforced. Id. After a temporary orders hearing before an associate judge without a court reporter, the associate judge entered a report for temporary orders requiring the husband to pay temporary spousal support and interim attorney’s fees. Id. The husband filed a motion to reconsider, but the associate judge denied the husband’s motion and entered temporary orders consistent with her report. Id. at *2. The husband filed a petition for writ of mandamus. Id. The wife argued that the husband was not entitled to mandamus relief because there was no reporter’s record and because the husband failed to seek de no review from the referring court. Id. at *2–*3.

The court of appeals held that whether the trial court’s temporary orders violated the terms of the parties’ separation agreement was a question of law, meaning that the hearing testimony bore no legal effect. Id. at *2. Moreover, the parties did not dispute the facts adduced at the hearing, so no reporter’s record was required. Id.

Additionally, per Texas Family Code Section 201.106(a), the husband’s failure to seek de novo review did not deprive him the right to appeal to the court of appeals. Id.at *3. Texas Family Code Section 201.106(a) provides:
A party’s failure to request a de novo hearing before the referring court or a party’s waiver of the right to request a de novo hearing before the referring court does not deprive the party of the right to appeal to or request other relief from a court of appeals or the supreme court.

Tex. Fam. Code § 201.016(a). Further, because the husband challenged the temporary orders signed by the associate judge, rather than the associate judge’s report, the challenged orders constituted an order of the referring court. Eaton, 2014 WL 4771608, at *3. Texas Family Code Section 201.007(c) provides:

An order described by Subsection (a)(14) that is rendered and signed by an associate judge constitutes an order of the referring court.

Tex. Fam. Code § 201.007(c). Subsection (a)(14) provides:

(a) Except as limited by an order of referral, an associate judge may
* * *
(14) without prejudice to the right of appeal under

Section 201.015, render and sign:

  • a final order agreed to in writing as to both form and substance by all parties;
  • a final default order;
  • a temporary order; or
  • a final order in a case in which a party files an unrevoked waiver made in accordance with Rule 119, Texas Rules of Civil Procedure, that waives notice to the party of the final hearing or waives the party’s appearance at the final hearing

Tex. Fam. Code § 201.007(a)(14)(emphasis added). Thus, the husband’s failure to seek de novo review did not deprive him of an adequate appellate remedy. Eaton, 2014 WL 4771608, at *3.

When an associate judge’s report is unchallenged through a de novo ruling, pursuant to Texas Family Code Section 201.013, it becomes an order of the court. Tex. Fam. Code § 201.013(b). Thus, if a party did not file a timely request for a de novo hearing before the referring judge yet had obtained a reporter’s record at hearing before an associate judge, that party may appeal to or request other relief from a court of appeals or the supreme court. See Tex. Fam. Code § 201.013(b); 201.106(a).

VI. CONDITIONAL APPELLATE ATTORNEY’S FEES

As discussed above, while Memorandum Opinions do not typically introduce new law, occasionally an important change or clarification can be found in one. For example, the Fifth District Court of Appeals in Dallasrecently held, in a Memorandum Opinion, that a trial court may award unconditional appellate attorney’s fees if the award protects the best interest of the child. In re Jafarzadeh, No. 05-14-01576-CV, 2015 WL 72693 (Tex. App.—Dallas 2015, orig. proceeding)(mem. op.).

In Jafarzadeh, the trial court signed temporary orders pending appeal that included an unconditional award of appellate attorney’s fees, requiring the father to pay $15,000 in three equal installments: (1) when the record was filed with the court of appeals; (2) when the appellee brief was due; and (3) when the case was set for submission before the court of appeals. Thus, the father was not only ordered to pay unconditional attorney’s fees, but also to pay them almost immediately upon the filing of a notice of appeal and before he could even retain his own appellate counsel to review the record and advise him whether to appeal the trial court’s judgment.

Prior to Jafarzadeh, the longstanding rule had been that while a trial court may render an award for appellate attorney’s fees, the award must be conditional upon an appellant’s unsuccessful appeal. Cessna Aircraft Co. v. Aircraft Network, LLC, 345 S.W.3d 139, 148 (Tex. App.—Dallas 2011, no pet.); Halleman v. Halleman, Nos. 02–11–00238–CV, 02–11–00259–CV, 2011 WL 5247882, at *5 (Tex. App.—Dallas 2011, orig. proceeding)(mem. op.); Moroch v. Collins, 174 S.W.3d 849, 870 (Tex. App.—Dallas 2005, pet. denied); Smith v. Smith, 757 S.W.2d 422, 426 (Tex. App.—Dallas 1988, writ denied). This is because a party cannot be penalized for taking a successful appeal. Siegler v. Williams, 658 S.W.2d 236, 241 (Tex. App.—Houston [1st Dist.] 1983, no writ). An unconditional award of appellate attorney’s fees serves as an improper deterrent to appellate review. In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998). Further, such a penalty improperly chills a party from exercising his legal rights. Id. at 722.

However, in Jafarzadeh, the court of appeals held that the premise for the requirement that appellate fees be conditional is based on a punitive rationale that attorney’s fees are part of the damages incurred by the prevailing party. Jafarzadeh, 2015 WL 72693, at *2. While acknowledging that at least three other courts of appeals have reached a contrary conclusion, the Dallas Court of Appeals held that in a suit affecting the parent-child relationship, deferring the fee award until resolution of an appeal is impractical because it fails to provide the resources necessary to the appellee to defend the appeal. Id. Unlike other civil cases, an award of attorney’s fees in a suit affecting the parent-child relationship is not based on a punitive or damages rationale, but rather on the rationale that the award is in the best interest of the child. Id. Because both parents are responsible for providing for the child’s needs, attorney’s fees in a suit affecting the parent-child relationship may be imposed on either parent. Id. Conditioning the award on an unsuccessful appeal may defeat the ability of the parent who prevailed in the trial court from defending an order that was in the best interest of the child. Id. Unfortunately, in this case, the appellant-father burdened with not only his but also the appellee’s appellate attorney’s fees if he choose to pursue the appeal, could not afford tochallenge the court of appeals’ mandamus opinion in the Texas Supreme Court or pursue an appeal—this problem was not discussed or addressed by the appellate court in this opinion. So, instead of the appellee not being able to defend against the appeal, the appellate court’s decision improperly chilled appellant from exercising his legal rights.

VII. MODIFICATION OF TEMPORARY ORDERS IN SAPCRS

In another recent Memorandum Opinion, the Fifth DistrictCourt of Appeals in Dallas clarified the procedural requirements for modification of temporary orders in original child-custody proceedings. In re Casanova, No. 05-14-01166-CV, 2014 WL 6486127 (Tex. App.—Dallas 2014, orig. proceeding)(mem. op.). In Casanova, the parents had separated and were in the process of obtaining a divorce. Id. at *1. The parties agreed to allow the mother and the child to move to Oklahoma, where the mother’s extended family lived and where the mother was able to secure a lucrative job that also allowed her the flexibility to care for the child, and the trial court signed agreed temporary orders incorporating the parties’ agreement. Id. However, the father subsequently moved to modify the temporary orders to force the mother and the child to return to Dallas. Id.

The Dallas Court of Appeals specifically held that the material and substantial change in circumstances requirement necessary to modify a final order found in Family Law Chapter 156 does not apply to modifications of temporary orders, however,a trial court must still be guided by the Texas Family Code and public policy in crafting any temporary orders. Id. at *3–*4. All temporary orders involving a child must be for “the safety and welfare” of the child. Id. at *3 (citing Tex. Fam. Code § 105.001(a)). Further, the order must comport with legislatively pronounced public policy guidelines. Id. at *4 (citing Tex. Fam. Code § 153.001). Most importantly, the Casanovacourt held that temporary orders should not be modified absent evidence that the current situation endangers or is harmful to the child. Id. The evidence in Casanovaestablished that the child was happy and thriving under the original temporary orders. Id. Thus, it was error for the trial court to enter new temporary orders that failed to promote stability in the child’s life. Id.at *6.

Therefore, prior to a modification of temporary orders in an original child custody determination, the moving party should establish (1) that the modification is for the safety and welfare of the child; (2) that the modification comports with legislatively pronounced public policy guidelines; and (3) that the current situation endangers or is harmful to the child.

VIII. THE TRIAL COURT CANNOT CHANGE CONSERVATOR WITH RIGHT TO DESIGNATE THE PRIMARY RESIDENCE OF THE CHILD DURING PENDENCY OF MODIFICATION

While not a new trend, this question comes up regularly with the courts of appeals, and it is consistently answered with a resounding, no—the person with the right to designate the primary residence of the child cannot be changed through temporary orders during the pendency of a modification proceeding without establishing one of the three statutory exceptions. Texas Family Code Section 156.006(b) provides:

(b) While a suit for modification is pending, the court may not render a temporary order that has the effect of changing the designation of the person who has the exclusive right to designate the primary residence of the child under the final order unless the temporary order is in the best interest of the child and:

  1. the order is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development;
  2. the person designated in the final order has voluntarily relinquished the primary care and possession of the child for more than six months; or
  3. the child is 12 years of age or older and has expressed to the court in chambers as provided by Section 153.009 the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child.

Tex. Fam. Code § 156.006(b)(emphasis added). Because temporary orders are not appealable, mandamus relief is available when a trial court’s temporary orders are an abuse of the court’s discretion. In re Bustos, No. 04-14-00755-CV, 2014 WL 7339259, at *2 (Tex. App.—San Antonio 2014, orig. proceeding)(mem. op.). Examples of cases issued since 2008-2009 where mandamuses have been filed to challenge temporary orders include:

  • In re Winters, No. 05-08-01486-CV,2008 WL 5177835 (Tex. App.—Dallas 2008, orig. proceeding)(mem. op.);
    • the trial court improperly entered temporary orders changing the conservator with the right to designate the primary residence of the child without making a finding that a statutory exception applied;
  • In re Rampy, 03-09-00208-CV (Tex. App.—Austin 2009, orig. proceeding)6;
    • the court of appeals held that the mother’s future plan to leave the children with the father during her upcoming military deployment did not establish the “voluntarily relinquished” exception provided in Texas Family Code Section 156.006(b)(2);
  • In re Payne, No. 10-11-00402-CV, 2011 WL 6091265 (Tex. App.—Waco 2011, orig. proceeding)(mem. op.);
    • the trial court improperly added, through a temporary order, a geographical restriction on the mother’s right to designate the children’s primary residence, and no evidence showed that a statutory exception applied;
  • In re Rather,No. 14-11-00924-CV, 2011 WL 6141677 (Tex. App.—Houston [14th Dist.] 2011, orig. proceeding)(mem. op.)
    • the trial court improperly changed the conservator with the right to designate the child’s primary residence when the father failed to establish the statutory exception applied;
  • In re Strickland, 358 S.W.3d 818 (Tex. App.—Fort Worth 2012, orig. proceeding);
    • the trial court improperly added, through a temporary order, a geographical restriction on the mother’s right to designate the children’s primary residence;
  • In re Clayborn,No. 02-12-00299-CV, 2012 WL 3631243 (Tex. App.—Fort Worth 2012, orig. proceeding)(mem. op.);
    • while the father introduced evidence that the teen-aged child was under some emotional distress, he did not meet the burden of showing the temporary order was necessary because the child’s present circumstances would significantly impair her physical health or emotional development; and
  • In re Bustos, No. 04-14-00755-CV, 2014 WL 7339259 (Tex. App.—San Antonio 2014, orig. proceeding) (mem. op.);
    • the trial court improperly entered temporary orders changing the conservator with the right to designate the children’s primary residence without providing that conservator with proper notice and a full evidentiary hearing.

Practitioners should be aware of this provision when appearing in temporary orders hearings. The party seeking to change the designation of the person with the exclusive right to designate the primary residence of the child must be ready to establish not only that the change is in the child’s best interest, but also that one of the three statutory exceptions applies. See Tex. Fam. Code § 156.006(b). Additionally, if the party previously granted the exclusive right to designate the child’s primary residence loses that right through a temporary order without a finding that the statutory exception applies, mandamus relief is available.

IX. JUDICIAL ADMISSIONS TO MATERIAL AND SUBSTANTIAL CHANGE

Over the past two years, the courts of appeals have held that an allegation of a material and substantial change in a counter-petition constitutes a judicial admission of the same with respect to the petitioner’s original petition.

In a 2009 Dallas Opinion, a father pleaded in his petition to modify the parent-child relationship that there had been a material and substantial change in circumstances since the prior order. In re A.B.P., 291 S.W.3d 91, 93 (Tex. App.—Dallas 2009, no pet.). In the mother’s counter-petition, she too alleged there had been a material and substantial change. Id. However, neither party produced any evidence to the trial court establishing a material and substantial change. Id. at 96–97. Thus, the court of appeals held that the trial court abused its discretion in modifying the prior orders. Id. at 97.

However, in a 2013 Dallas Opinion, the court of appeals held that when the mother asserted in her counterpetition that the “circumstances of the child, a conservator, or other party affected by the order to be modified have materially and substantially changed since the date of rendition of the order to be modified,” she judicially admitted the same. In re L.C.L., 396 S.W.3d 712, 718 (Tex. App.—Dallas 2013, no pet.). Although the parents sought different relief in their petitions, each sought to modify conservatorship. Id. at 714. The father asked the trialcourt to appoint him as the child’s sole managing conservator, and the mother asked to be named the parent with the exclusive right to determine the child’s primary residence. Id. Because each party alleged the common element of the other party’s similar pleading, that fact was judicially admitted, and no proof of a material and substantial change in circumstance was required. Id. at 718; see also In re A.E.A., 406 S.W.3d 404, 409–10 (Tex. App.—Fort Worth, 2013, no pet.).

Contrarily, a pleading that asserts a material and substantial change with respect to the child of the parties does not constitute a judicial admission of a material and substantial change as to all circumstances of the parties. Rother v. Rother, No. 04–13–00899–CV, 2014 WL 4922898, at *2–*3 (Tex. App.—San Antonio 2014, no pet.)(mem. op.). In Rother, the father filed a petition to modify the divorce decree with respect to possession of the child and with respect to spousal maintenance and alleged that the circumstances of the parties or the child had materially and substantially changed since the entry of the prior order, which was the parties’ divorce decree. Id. at *1. The wife filed a counter-petition seeking to modify possession of and access to the child and alleging the circumstances of the parties or the child had material and substantial changed since the divorce decree. Id. The wife moved for a no-evidence summary judgment on the husband’s request to modify spousal support because there was no evidence that the circumstances relevant to spousal support had materially and substantially changed since the divorce decree. Id. The trial court granted the wife’s motion, and the husband appealed, arguing that the wife had judicially admitted to the changed circumstances. Id. However, the court of appeals held that because the wife only sought to modify possession and access in her counter-petition, the assertion of changed circumstances in her counter-petition was only a judicial admission as to the circumstances pertaining to possession and access. Id. at *2.

Thus, caution is advised to respondents in modification suits. Before filing a counterpetition, first consider whether there actually has been a material and substantial change in circumstances. If not, it would be wise to file an answer asserting such before making any judicial admissions.

X. UNDER- / UNEMPLOYMENT

Another trend in the appellate courts has involved how the courts address an obligor’s intentional under- or unemployment in assessing child support. Texas Family Code Section 154.066(a) provides:

(a) If the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the earning potential of the obligor.

Tex. Fam. Code § 154.066(a). In 2011, the Texas Supreme Court determined that in setting the amount of child support, a court may consider the obligor’s potential income if the obligor is intentionally under- or unemployed without the necessity of determining that the purpose of the under- or unemployment was to reduce the amount owed in child support. Iliff v. Iliff, 339 S.W.3d 74, 81–82 (Tex. 2011).

Prior to Iliff, the courts had required proof that the intentionally under- or unemployed parent reduced his income for the purpose of decreasing child support payments. In re A.B.A.T.W., 266 S.W.3d 580, 585 (Tex. App.—Dallas 2008, no pet.); In re J.G.L., 295 S.W.3d 424, 427 (Tex. App.—Dallas 2009, no pet.); In re B.R., 327 S.W.3d 208, 213 (Tex. App.—San Antonio 2010, no pet.); In re Marriage of Lassmann, No. 13–09–00703–CV, 2010 WL 3377773, at *2 (Tex. App.—Corpus Christi 2010, no pet.)(mem. op.).

In 2011, just prior to the release of the Iliff opinion, the Eighth District Court of Appeals in El Paso upheld an order by the trial court setting the obligor’s child support obligation based on his earning potential, upon finding he was intentionally unemployed. In re N.T., 335 S.W.3d 660, 666–67 (Tex. App.—El Paso 2011, no pet.). The court did not question whether the obligor’s intent was to reduce his child support obligation. See id.

In Iliff, the Texas Supreme Court held that in Texas Family Code Section 154.066(a), the word “intentional” modified “unemployment or underemployment” and could not be said to modify “reduction of child support obligations,” as it is not even a phrase in Texas Family Code Section 154.066(a). Iliff, 339 S.W.3d at 80. The court further noted that the statute is only applicable when the obligor makes significantly less than his potential income. Id. at 82. Additionally, because Texas Family Code Section 154.066(a) is a discretionary rule, then courts should take into consideration the best interests of the child, as well as “a parent’s right to pursue his or her own happiness.” Id. at 81–82.

Despite the importance of a parent’s right to pursue his or her own happiness, the best interest of the child, as in any case involving children, is the paramount guiding principle. In re N.T.P., 402 S.W.3d 13, 27–28 (Tex. App.—San Antonio 2012, no pet.)(citing Iliff, 339 S.W.3d at 82). In N.T.P., the 51-year-old father chose to retire from the military, move to England, and go to law school. Id. at 26. The father admitted that his earning potential was between $60,000 and $90,000 per year. Id. The court of appeals noted that situations exist in which “laudable intentions” prompt a parent’s decision to remain underemployed or unemployed. Id. at 27. However, the record in this case did not excuse the father’s decision to remain completely unemployed, considering the expenses related to his two children. Id.

Speculation of income potential does not constitute evidence of potential income. Trumbull v. Trumbull, 397 S.W.3d 317, 320 (Tex. App.—Houston [14th Dist.] 2013, no pet.); Reddick v. Reddick, 450 S.W.3d 182, 184 (Tex. App.—Houston [1st Dist.] 2014, no pet.). In Trumbull, the mother testified that the husband had “bragged” that he could make between $60,000 and $80,000 because his income was based on commission. Id. However, the evidence established that the father had never earned more than $44,000 annually during the marriage and that he was making less than $30,000 at the time of the proceedings. Id. Thus, the evidence did not support the trial court’s finding that the father had an annual earning potential of $60,000. Id.

In Reddick, the father had owned a business that had done well during the marriage. 450 S.W.3d at 184. However, around 2008, the business started do more poorly each year, and the father was forced to walk away from it. Id. at 184–85. In a suit to reduce his child support obligation, the mother alleged that the father was intentionally underemployed because at the time, he was only mowing lawns. Id. at 185. However, the father had no more than a high school education and a few years of sales experience before he had started his own business. Id. at 190. The evidence clearly established that the father’s business was deeply in debt before he was locked out of his premises for his failure to pay his lease. Id. The mother presented no evidence of how the father was supposed to reach his alleged income potential. Id. Thus, the trial court erred in setting child support based on the father income potential rather than his actual income. Id. at 191.

XI. ACTUAL CARE, CONTROL, AND POSSESSION

Another interesting trend involves a split of authority among the appellate courts regarding the definition of “actual care, control, and possession.” Texas Family Code Section 102.003(a)(9) gives standing to file an original suit to “a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition.” Tex. Fam. Code § 102.003(a)(9). Over the years, the courts of appeals have not reached a consensus, and there remains a split over whether the statute requires legal, exclusive care, control, and possession or whether it requires non-exclusive but permanent and consistent care, control, and possession.

In 2008, the Second District Court of Appeals in Fort Worth held that a petitioner failed to show actual care, custody, and control because the petitioner only ever had possession of the child after receiving permission from the managing conservator. In re Kelso, 266 S.W.3d 586, 590–91 (Tex. App.—Fort Worth 2008, orig. proceeding). Thus, the managing conservator maintained control over when the child was able to stay with the petitioner. Id. at 591.

In 2009, the Fourth District Court of Appeals in San Antonio held that the petitioner step-father raised a fact issue regarding his actual care, custody, and control of the children because there was conflicting testimony regarding the length of time he was in possession of the children. In re Y.B., 300 S.W.3d 1, 5 (Tex. App.—San Antonio 2009, pet. denied). The dissent in this case argued that while the parties disagreed about the length of time the children lived with petitioner, no evidence was presented as to whether the step-father exercised any actual care, control, and possession of the children. Id. at 6. Also in 2009, the Fifth District Court of Appeals in Dallas found that a grandmother had standing to seek custody under Texas Family Code Section 102.003(a)(9) because the child had been spending substantial time at her grandmother’s home, where the child had her own room and dedicated play areas. In re M.K.S.-V., 301 S.W.3d 460, 465 (Tex. App.—Dallas 2009, pet. denied). Although the mother continued to exercise possession and control over the child, the joint possession agreement between the parties indicated an intent that the child would occupy the grandmother’s home consistently over a substantial period of time. Id.

In 2010, the Ninth District Court of Appeals in Beaumont reached a conclusion similar to that of Kelso, finding that because the mother had not abdicated her parental duties and responsibilities, the petitioner failed to establish he had “actual” care, control, and possession of the children. In re C.T.H.S., 311 S.W.3d 204, 209 (Tex. App.—Beaumont 2010, pet. denied). In addition, citing Troxel, the court of appeals found that the trial court erred in allowing the non-parent petitioner to seek custody absent evidence that the parent had not adequately cared for the child. Id.

In 2011, the Third District Court of Appeals in Austin questioned whether a petitioner needed to establish “legal” care, control, and possession of the children. Jasek v. TDFPS, 348 S.W.3d 523, 535 (Tex. App.—Austin 2011, no pet.). The court reasoned that nothing in the statute required the conservator to have relinquished care, control, and possession to the petitioner. Id. Additionally, the court saw significance in the legislature’s choice to include the word “actual,” which could have been omitted or replaced with the word “legal.” Id. By using the word “actual,” the legislature manifested an intent to distinguish actual care, control, and possession from a bare legal right to the same. Id.

The same year, without citing Jasek, the First District Court of Appeals in Houston reached a similar conclusionas the Jasek court. In re Fountain, No. 01-11-00198-CV, 2011 WL 1755550, at *3–*4 (Tex. App.—Houston [1st Dist.] 2011, orig. proceeding)(mem. op.). In Fountain, the court determined that requiring the actual care, control, and possession to be exclusive added a requirement not intended by the Legislature. Id. at *4. Further, the evidence established that the petitioner and the conservator in that case each cared for the child most nights and that the pattern of care and possession was not intended to be a temporary arrangement. Id. Thus, the petitioner had sufficient actual care, control, and possession to establish standing under Texas Family Code Section 102.003(a)(9).

In 2012, the San Antonio Court of Appeals reviewed the conflicting opinions of Kelso and Jasek and found the Jasek reasoning to be more persuasive. In re A.C.F.H., 373 S.W.3d 148, 152–53 (Tex. App.—San Antonio 2012, no pet). Also in 2012, the Seventh District Court of Appeals in Amarillo addressed the issue and also chose to follow the Jasek court’s reasoning. In re K.K.T., No. 07-11-00306-CV, 2012 WL 3553006, at *3–*4 (Tex. App.—Amarillo 2012, no pet.)(mem. op.). The Amarillo Court of Appeals, quoting Jasek, held that a petitioner seeking standing under Texas Family Code Section 102.003(a)(9) must show evidence that he exercised “guidance, governance and direction similar to that typically exercised by parents with their children.” Id. at *4 (citing Jasek, 348 S.W.3d at533).

However, the Beaumont Court of Appeals followed the reasoning of Kelso, as well as its own precedent, and determined that to establish standing under Texas Family Code Section 102.003(a)(9), the petitioner must show that he exercised legal control over the child’s affairs during the relevant time period. In re Wells, 373 S.W.3d 174, 178 (Tex. App.—Beaumont 2012, orig. proceeding).

In 2013, the Dallas Court of Appeals clarified that although actual care, control, and possession need not be exclusive to satisfy the standing requirement of Texas Family Code Section 102.003(a)(9), it must be intended to be a permanent arrangement. In re I.I.G.T., 412 S.W.3d 803, 809 (Tex. App.—Dallas 2013, no pet.). In I.I.G.T., the grandmother who claimed standing under Texas Family Code Section 102.003(a)(9) admittedly cared for the child consistently over a six-month period ending within 90 days of filing her petition. Id. However, the evidence also showed that the arrangement was intended to be temporary. Id.

In December 2014, the Fort Worth Court of Appeals addressed the issue again, and stood by its 2008 holding in Kelso. In re S.D., No. 02–14–00102–CV, 2014 WL 6997169, at *2 (Tex. App.—Fort Worth 2014, no pet.)(mem. op.). The court held that because the parent had not abdicated permanent care, control, and possession of the child to the petitioner, the petitioner lacked standing under Texas Family Code Section 102.003(a)(9). Id.

As it stands the courts of appeals are split as to whether Texas Family Code Section 102.003(a)(9) requires:

  • “Legal” actual care, control, and possession, which requires:
    • legal conservator has abdicated or relinquished his care, control, and possession; and
    • exclusive care, control, and possession; or
  • “Real” actual care, control, and possession, which requires:
    • non-exclusive care, control, and possession;
    • the petitioner provides guidance, governance, and direction similar to that typically exercised byparents with their children; and
    • evidence the present arrangement is intended to be permanent and not temporary.
Court “Legal” Actual Care, Control, and Possession “Real” Actual Care, Control, and Possession
Houston [1st Dist.]
  • In re Fountain, No. 01-11-00198-CV, 2011 WL 1755550, at *3–*4 (Tex. App.—Houston [1st Dist.] 2011, orig. proceeding)(mem. op.)
Forth Worth
  • In re Kelso, 266 S.W.3d 586 (Tex. App.—Fort Worth 2008, orig. proceeding)
  • In re S.D., No. 02–14–00102–CV, 2014 WL 6997169 (Tex. App.—Fort Worth 2014, no pet.)(mem. op.)
Austin
  • Jasek v. TDFPS, 348 S.W.3d 523 (Tex. App.—Austin 2011, no pet.)
San Antonio
  • In re Y.B., 300 S.W.3d 1 (Tex. App.—San Antonio 2009, pet. denied)
  • In re Guardianship of C.E.M.-K., 341 S.W.3d 68 (Tex. App.—San Antonio 2011, pet. denied)
  • In re A.C.F.H., 373 S.W.3d 148 (Tex. App.—San Antonio 2012, no pet.)
Dallas
  • In re M.K.S.-V., 301 S.W.3d 460, 465 (Tex. App.—Dallas 2009, pet. denied)
  • In re I.I.G.T., 412 S.W.3d 803, 809 (Tex. App.—Dallas 2013, no pet.)
Amarillo
  • In re K.K.T., No. 07-11-00306-CV, 2012 WL 3553006 (Tex. App.—Amarillo 2012, no pet.)(mem. op.)
Beaumont
  • In re Wells, 373 S.W.3d 174 (Tex. App.—Beaumont 2012, orig. proceeding)
  • In re C.T.H.S., 311 S.W.3d 204 (Tex. App.—Beaumont 2010, pet. denied)

XII. Informal marriages and fault-based divorces

Since the 2008–2009 term, there has been an increasing number of Opinions and Memorandum Opinions where annulments and divorces based on fault grounds and informal marriages are at issue.

Term Fault Grounds Annulment Informal Marriage Presumption Current Marriage Valid Putative Spouse Total
2008-2009 1 1 0 0 1 3
2009-2010 0 1 0 0 0 1
2010-2011 0 0 0 1 0 1
2011-2012 1 2 3 0 0 6
2012-2013 1 0 0 0 0 1
2013-2014 1 2 3 1 1 8
2014-2015 0 0 1 0 0 1
Total 4 6 7 2 2 20

A. Annulment

In the 2011–2012 and 2013–2014 terms, four annulments were affirmed in situations where one spouse proved that the other had induced the marriage solely to obtain a green card. Zhang v. Zhang, No. 05-13-00389-CV, 2014 WL 3843841 (Tex. App.—Dallas 2014, pet. denied)(mem. op.); Manjlai v. Manjlai, 447 S.W.3d 376 (Tex. App.—Houston [14th Dist.] 2014, no pet.); Desta v. Anyaoha, 371 S.W.3d 596 (Tex. App.—Dallas 2012, no pet.); Montenegro v. Avila, 365 S.W.3d 822 (Tex. App.—El Paso 2012, no pet.)

B. Informal marriage

In a 2014 case, the husband failed to overcome the presumption that his current marriage to his wife was valid, with the dispute centering on whether the wife had obtained a valid divorce from her prior husband under Mohammedan Law. In re A.M., 418 S.W.3d 830 (Tex. App.—Dallas 2013, no. pet.). Similarly, in a 2011 case, the husband attempted to establish that the wife’s prior marriage in Vietnam served as an impediment to a finding that a present common-law marriage existed. Nguyen v. Nguyen, 355 S.W.3d 82 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). The court of appeals did not address the issue of whether the parties were in fact informally married, but it did find that because of the presumption of a subsequent marriage’s validity, the wife’s prior marriage would not preclude the trial court from finding on remand that the parties were informally married. Id. So far in the current term, in the one opinion addressing an informal marriage, the couple was never informally married, but the husband failed to preserve his complaint regarding the marriage’s validity. Farrell v. Farrell, ___ S.W.3d ___, 2015 WL 364093 (Tex. App.—El Paso 2015, no pet.)

In the 2011–2012 term, the courts found informal marriages existed in two of the three cases addressing the topic. Garcia v. Garcia, No. 02-11-00276-CV, 2012 WL 3115763 (Tex. App.—Fort Worth 2012, no pet.)(mem. op.); Riley v. Riley, No. 14-11-00346-CV, 2012 WL 2550957 (Tex. App.—Houston [14th Dist.] 2012, no pet.)(mem. op.); Small v. McMaster, 352 S.W.3d 280 (Tex. App.—Houston [14th Dist.] 2011, pet. denied)(no informal marriage found). However, in the 2013–2014 term, the courts of appeals found no informal marriage in two of the three cases addressing that topic. Fusselman v. Fusselman, 09-11-00935-CV, 2013 WL 5428137 (Tex. App.—Beaumont 2013, no pet.)(mem. op.); Burden v. Burden, 420 SW3d 305 (Tex. App.—Texarkana, no. pet.); McMaster v. Small, No. 14-13-00069-CV, 2014 WL 950471 (Tex. App.—Houston [14th Dist.] 2014, no. pet.)(mem. op.)(appeal of summary judgment—issue of informal marriage not yet determined, Texas does not recognize common law divorce).

C. Fault grounds

The only case prior to 2012 since 2007 addressing fault in the granting of a divorce held that a court could not sua sponte dissolve a marriage on fault grounds without one of the parties specifically pleading for such relief. In re S.A.A.,279 S.W.3d 853 (Tex. App.—Dallas 2009, no pet.). However, in each of 2012, 2013, and 2014, one case addressed a divorce based on cruelty, adultery, or both. Newberry v. Newberry, 351 S.W.3d 552 (Tex. App.—El Paso 2011, no pet.); In re Marriage of C.A.S. & D.P.S., 405 S.W.3d 373 (Tex. App.—Dallas 2013, no pet.); Kemp v. Kemp,11-11-00292-CV, 2013 WL 5891583 (Tex. App.—Eastland 2013, no pet.)(mem. op.).

Appendix A – Reported Non-Termination Family Law Opinions Statistics7

September 2008 – August 2009

Total Opinions: 69
Total Notable Memorandum Opinions: 8
Total Texas Supreme Court Cases: 5

September 2009 – August 2010

Total Opinions: 81
Total Notable Memorandum Opinions: 17
Total Texas Supreme Court Cases: 1

September 2010 – August 2011

Total Opinions: 81
Total Notable Memorandum Opinions: 3
Total Texas Supreme Court Cases: 4

September 2011 – August 2012

Total Opinions: 79
Total Notable Memorandum Opinions: 31
Total Texas Supreme Court Cases: 4

September 2012 – August 2013

Total Opinions: 54
Total Notable Memorandum Opinions: 3
Total Texas Supreme Court Cases: 6

September 2013 – August 2014

Total Opinions: 55
Total Notable Memorandum Opinions: 20
Total Texas Supreme Court Cases: 2

September 2014 – August 2015 (Partial Term)

Total Opinions: 35
Total Notable Memorandum Opinions: 33
Total Texas Supreme Court Cases: 3

NOTES:

7 The “Total Notable Memorandum Opinions” only includes non-termination Memorandum Opinions that were included in the State Bar of Texas Family Law Section Reports because the Memorandum Opinion appeared to be important, despite the “Memorandum” designation.

September 2008 – August 2009

Reported Percentage of all Reported
Total Houston – 1st: 3 4%
Total Fort Worth: 4 6%
Total Austin: 2 3%
Total San Antonio: 4 6%
Total Dallas: 29 42%
Total Texarkana: 3 4%
Total Amarillo: 4 6%
Total El Paso: 4 6%
Total Beaumont: 3 4%
Total Waco: 2 3%
Total Eastland: 2 3%
Total Tyler: 0 0%
Total Corpus Christi: 1 1%
Total Houston – 14th: 8 12%
TOTALS 69 100%

September 2009 – August 2010

Reported Percentage of all Reported
Total Houston – 1st: 11 14%
Total Fort Worth: 9 11%
Total Austin: 6 7%
Total San Antonio: 9 11%
Total Dallas: 17 21%
Total Texarkana: 3 4%
Total Amarillo: 4 5%
Total El Paso: 12 15%
Total Beaumont: 2 2%
Total Waco: 0 0%
Total Eastland: 0 0%
Total Tyler: 0 0%
Total Corpus Christi: 1 0%
Total Houston – 14th: 8 10%
TOTALS 81 100%

September 2010 – August 2011

Opinions Percentage of all Opinions
Total Houston – 1st: 4 5%
Total Fort Worth: 5 6%
Total Austin: 4 5%
Total San Antonio: 17 21%
Total Dallas: 13 16%
Total Texarkana: 5 6%
Total Amarillo: 3 4%
Total El Paso: 8 10%
Total Beaumont: 2 2%
Total Waco: 0 0%
Total Eastland: 2 2%
Total Tyler: 0 0%
Total Corpus Christi: 1 1%
Total Houston – 14th: 17 21%
TOTALS 69 100%

September 2011 – August 2012

Opinions Percentage of all Opinions
Total Houston – 1st: 8 10%
Total Fort Worth: 8 10%
Total Austin: 2 3%
Total San Antonio: 11 14%
Total Dallas: 17 22%
Total Texarkana: 8 10%
Total Amarillo: 2 3%
Total El Paso: 8 10%
Total Beaumont: 2 3%
Total Waco: 0 0%
Total Eastland: 2 3%
Total Tyler: 1 1%
Total Corpus Christi: 0 0%
Total Houston – 14th: 10 13%
TOTALS 79 100%

September 2012 – August 2013

Opinions Percentage of all Opinions
Total Houston – 1st: 7 13%
Total Fort Worth: 1 2%
Total Austin: 0 0%
Total San Antonio: 9 17%
Total Dallas: 9 17%
Total Texarkana: 3 6%
Total Amarillo: 4 7%
Total El Paso: 5 9%
Total Beaumont: 1 2%
Total Waco: 2 4%
Total Eastland: 1 2%
Total Tyler: 1 2%
Total Corpus Christi: 0 0%
Total Houston – 14th: 11 20%
TOTALS 54 100%

September 2013 – August 2014

Opinions Percentage of all Opinions
Total Houston – 1st: 8 15%
Total Fort Worth: 1 2%
Total Austin: 1 2%
Total San Antonio: 5 9%
Total Dallas: 14 25%
Total Texarkana: 3 5%
Total Amarillo: 1 2%
Total El Paso: 6 11%
Total Beaumont: 0 0%
Total Waco: 0 0%
Total Eastland: 0 0%
Total Tyler: 0 0%
Total Corpus Christi: 2 4%
Total Houston – 14th: 14 25%
TOTALS 55 100%

September 2014 – May 2015 (Partial Term)

Opinions Percentage of all Opinions
Total Houston – 1st: 13 37%
Total Fort Worth: 1 3%
Total Austin: 0 0%
Total San Antonio: 2 6%
Total Dallas: 1 3%
Total Texarkana: 0 0%
Total Amarillo: 0 0%
Total El Paso: 5 14%
Total Beaumont: 0 0%
Total Waco: 0 0%
Total Eastland: 0 0%
Total Tyler: 0 0%
Total Corpus Christi: 0 0%
Total Houston – 14th: 13 37%
TOTALS 35 100%

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