Edit: I called around and located one of the drafting lawyer’s of this bill (who happens to also be a close friend of mine and whom I didn’t even know was working on this) and he shared with me they went through multiple iterations of this bill prior to it even going to committee. Appearantly there was an actual schedule on the table being proposed for this bill for children at different ages (1-6 months old, 7-12 months old, 13 -24 months, ect…) but it was ultimately overulled by various interest groups. It’s sort of a shame since it seems like you have to litigate all possession schedules for children younger than three because there is no presumptive schedule. It’s a legal free-for-all. Custody litigation almost always polarizes the parents against each other and makes it difficult for parents of young children to start out on a nonadversarial footing from the very beginning of trying to jointly raise a child. I think this is a disservice to Texas parents.

By:AAThompson

H.B. No. 1262

A BILL TO BE ENTITLED

AN ACT relating to a court order for the possession of or access to a child under three years of age.

 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTIONA1.AASection 153.254, Family Code, is amended to read

as follows: A CHILD LESS THAN THREE YEARS OF AGE.

 (a) The court shall render an order appropriate under the circumstances for possession of a child less than three years of age. In rendering the order, the court shall consider evidence of all relevant factors, including:

      (1) the caregiving provided to the child before and during the current suit;

      (2) the effect on the child that may result from separation from either party;

      (3) the availability of the parties as caregivers and the willingness of the parties to personally care for the child;

      (4) the physical, medical, behavioral, and developmental needs of the child;

      (5) the physical, medical, emotional, economic, and social conditions of the parties;

      (6) the impact and influence of individuals, other than the parties, who will be present during periods of possession;

      (7) the presence of siblings during periods of possession;

      (8) the child’s need to develop healthy attachments to both parents;

      (9) the child’s need for continuity of routine;

      (10) the location and proximity of the residences of the parties;

      (11) the need for a temporary possession schedule that incrementally shifts to the schedule provided in the prospective order under Subsection (d) based on:

            (A) the age of the child; or

            (B) minimal or inconsistent contact with the child by a party;

      (12) the ability of the parties to share in the responsibilities, rights, and duties of parenting; and

      (13) any other evidence of the best interest of the child.

(b) Notwithstanding the Texas Rules of Civil Procedure, in rendering an order under Subsection (a), the court shall make findings in support of the order if:

      (1) a party files a written request with the court not later than the 10th day after the date of the hearing; or

      (2) a party makes an oral request in court during the hearing on the order.

     (c) The court shall make and enter the findings required by Subsection (b) not later than the 15th day after the date the party makes the request.

 (d) The court shall render a prospective order to take effect on the child’s third birthday, which presumptively will be the standard possession order.

 SECTION 2. The enactment of this Act does not constitute a material and substantial change of circumstances sufficient to warrant modification of a court order or portion of a decree that provides for the possession of or access to a child rendered before the effective date of this Act.

 SECTIONA 3. The change in law made by this Act applies to a suit affecting the parent-child relationship that is pending in a trial court on the effective date of this Act or that is filed on or after the effective date of this Act.

 SECTION 4. This Act takes effect September 1, 2011.

H.B.ANo.A1262

The Texas Family Code requires courts to make specific findings if “the amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines.” Tex. Fam.Code Ann. § 154.130(a)(3) (Vernon 2008). Trial courts must provide “specific reasons” for the variance between the child support percentage guidelines and the child support awarded. Id. § 154.130(b)(5). Otherwise, the law presumes the guideline child support payments are in the best interest of the child. Id. § 154.123(a) (Vernon 2008). A finding of voluntary underemployment, for example, allows the court to set child support at the “earning potential” rather than the actual earnings of the child support obligor. Id. § 154.066 (Vernon 2008).

To begin the voluntary underemployment analysis, the trial court contemplates the obligor’s proof of current wages. In re K.N.C., 276 S.W.3d at 627; see also Zorilla v. Wahid, 83 S.W.3d 247, 253 (Tex.App.-Corpus Christi 2002, no pet.); DuBois v. DuBois, 956 S.W.2d 607, 610 (Tex.App.-Tyler 1997, no pet.). Once the obligor’s wages are established, the burden shifts to the obligee to demonstrate the obligor’s intent to decrease income for the purpose of reducing child support payments. In re K.N.C., 276 S.W.3d at 627. Evidence of intent, such as the circumstances of obligor’s education, economic adversities, business reversals, business background, and earning potential, gives rise to an inference of voluntary underemployment. In re P.J.H., 25 S.W.3d at 405-06; see also In re K.N.C., 276 S.W.3d at 627. These factors, however, are not exhaustive. Roosth v. Roosth, 889 S.W.2d 445, 454 (Tex.App.-Houston [14th Dist.] 1994, writ denied); see, e.g., Garner, 200 S.W.3d at 303 (where the trial court considered the gifts and financial support of the obligor’s extended family in determining his net resources).

Husband’s argument rests on his testimony and that of his employer, Lance McDade. McDade stated that by agreement Husband set his own schedule and did not work every day. He further testified that he assigned Husband’s projects and that Husband received a forty percent commission from the profits. McDade told the trial court that Husband earned $62,730 in 2005, $76,900 in 2006, and $54,300 in 2007. When asked about the earnings decline between 2006 and 2007, McDade indicated that he reduced Husband’s workload based on Husband’s emotional state and that his business decreased overall because of adverse economic conditions. He testified Husband did not ask for a reduction of his workload, and that he subsequently asked McDade to increase it. Husband told the court that in 2007 his income decreased more than the income of the business overall because McDade would assign more work in the downturn to those employees with lower commission percentages. There was is no evidence to the contrary.

Wife basically argued that Husband is incorrect that she must provide evidence of intentional underemployment and that the Court has discretion to weigh the testimony of the witness and other evidence. The Appeals Court cited In re P.J.H., 25 S.W.3d at 405-06 that established Wife had the burden at trial to present evidence of underemployment as a specific basis for departing from child support guidelines

Wife relies on In re A.B.A.T.W., 266 S.W.3d 580 (Tex.App.-Dallas 2008, no pet.), to demonstrate that Husband and McDade’s testimony created conflicting evidence which allowed the trial court to make a determination of Husband’s intent. However, in this case the Court found Wife neither testified nor provided other evidence to contradict Husband’s and his employers testimony about Husband’s intent to earn income. The Appeals Court conceded that although the Trial Court was not required to accept the testimony of Husband and his employer as true, the trial Courts rejection of that testimony as not credible would still leave the trial court without any evidence that Husband intended to work less in order to reduce child support payments and presumably that would be an abuse of discretion because there would be no evidence at all of any intentional underemployment. Presumably, if the mother had a chance to respond to the Court of Appeals she would argue that if the Court found the employee/employer testimony not credible regarding why there was a reduction in income then the Trial Court was free to presume other reasons, like intentional underemployment, could be attributed to the drop in income. Again presumably, the Court of Appeals would respond that inconsistent testimony alone regarding a drop in income is not a “specific reason” under the Family Code. The Court remanded the case to set child support according the guidelines.

Patient’s estate brought medical malpractice action against hospital and several of its staff members, relating to patient’s death in hospital two days after he was admitted to hospital with kidney stones. After jury returned unanimous verdict for defendants, the 192nd Judicial District Court, Dallas County, Merrill Hartman, J., granted, “in the interests of justice and fairness,” estate’s motion for new trial as to claims against two nurses and as to hospital as their employer. Hospital and nurses petitioned for writ of mandamus. The Dallas Court of Appeals, 290 S.W.3d 238, 2006 WL 1309583, denied the petition. Hospital and nurses petitioned for writ of mandamus. After briefing and argument, the trial judge was succeeded in office by another judge. The Supreme Court abated and remanded so successor judge could reconsider the order granting new trial. The District Court, Craig Smith, J., reaffirmed the prior order without setting out reasons for granting the new trial.

 The Court ruled that mandamus review was warranted, as to trial court’s order granting in part plaintiff’s motion for new trial in medical malpractice action, which order explained the trial court’s action only as being “in the interests of justice and fairness,” without further explanation of trial court’s reasons for setting aside jury’s verdict; mandamus petition presented significant issue regarding protection of state constitutional right to jury trial, absent mandamus review the defendants seemingly would have no appellate review of order granting new trial, and even if defendants obtained reversal of verdict after second trial such appellate remedy would be inadequate, because they would have lost the benefit of final judgment based on first jury verdict without ever knowing why, and would have endured the time, trouble, and expense of second trial. Vernon’s Ann.Texas Const. Art. 1, § 15.

In re Iliff, 2009 WL 2195559 (Tex. App. – Austin 2009, pet. Filed) – Austin Court of Appeals made the following finding (please note Dallas area residents do not live within the jurisdiction of the Austin Court of Appeals – we live within the jurisdiction of the Dallas Court of Appeals and hence follow slightly different law):

We likewise reject James’s argument that the trial court was required to find that his voluntary unemployment was for the primary purpose of avoiding child support before setting child support based upon his earning potential as opposed to his actual income. In support of this argument, James relies on the holdings of our sister courts of appeals in McLane, 263 S.W.3d at 362, and In re P.J.H., 25 S.W.3d 402, 405-06 (Tex.App.-Fort Worth 2000, no pet.). But this Court has declined to adopt the reasoning of our sister courts. In Hollifield v. Hollifield, 925 S.W.2d 153 finding that unemployment was but one of myriad factors a court could consider when exercising its broad discretion to determine child support obligations, this Court held that “[s]ection 154.066 does not require the court to consider whether the obligor’s ‘voluntary unemployment’ was for the primary purpose of avoiding child support.” 925 S.W.2d at 156. This Court’s holding in Hollifield is consistent with the plain language of section 154.066, and we decline to revisit that holding here. We overrule James’s first issue. 

The Court reasoned that Texas Family Code Section154.066 does not require that a reduction in income is for the ‘primary purpose of avoiding child support’ it’s merely one of the factor’s the Court can use in deciding and setting child support.

Dunham v. Spurgin, 245 S.W.3d 12 (Tex. App.-Dallas 2007, pet. filed) Here are the background facts:

            Burnett-Dunham and Spurgin divorced in December of 1967. The trial court awarded custody of the two children, who were six and eight years old, to Burnett-Dunham and ordered Spurgin to pay thirty dollars per week in child support until the youngest child reached the age of eighteen. After 1967, the court issued no further orders modifying child support payments. Not until March 21, 2006, when the children were in their forties, did Burnett-Dunham file a notice of application for judicial writ of withholding and a child support lien seeking $245,324.69 in unpaid child support. Spurgin filed a motion to stay issuance of the withholding contending the amount of arrearages was incorrect, the action was barred by section 157.005 of the family code, and the order was incapable of enforcement because it was ambiguous. He also filed a motion for release of the lien claiming sections 157.313 and 157.327 of the family code required the notice to include an order determining arrearages, which never occurred.

After a hearing on these two motions, the trial court determined section 157.327 was not available to Burnett-Dunham, and it did not have jurisdiction to determine arrearages. Thus, the trial court dismissed the notice of application for judicial writ of income withholding and the notice of child support lien.

The Dallas Court of Appeals ruled in favor of the father and affirmed the trial court’s judgment mostly by applying dormancy principles to judgments and the 10 year bar. It’s always interesting to read cases where I know three of the four lawyers as well as the presiding Judge at the time. Good advocacy on both sides of this case as well as the correct application of the law.

3.402(a)(3) and (c) provides clear guidance on how to value such a claim.

3.402(a)(3) states ‘the reduction of the principal amount of a debt secured by a lien on property owned before marriage, to the extent the debt existed at the time of marriage’ or in other words, take the value of the mortgage at the time of marriage and deduct from that figure the current outstanding mortgage balance.

3.402(c) reads ‘…the separate estate of a spouse may not claim an offset for use and enjoyment of a primary or secondary residence owned wholly or partly by the separate estate against contributions made by the community estate to the separate estate’ in other words the separate property owner can not claim, per this statue, that the community would have had to pay a rent or mortgage during the marriage because they would have had to live somewhere and thus that money as such is not reimbursable. Speaking with people that worked and drafted this legislation, I was told the reason they instituted this is to simplify the analysis. Simply put, you value the claim at the reduction of principal and the statute eliminates the claim for use and enjoyment while also removing claims of mortgage interest, homeowners insurance and property tax payments from what is reimbursable. I think this makes sense. To me this statue strikes the correct balance of providing enough clarity on what is a reimbursable claim by stating what is the value of the claim while removing ambiguity regarding what can and what can not be offset.

3.402(b) reads ‘the court shall resolve a claim for reimbursement by using equitable principles…’ plainly giving the trial court enough discretion to make the myriad of competing marital property estates and the usual complicating factor’s, that make both a fact finders and litigators job difficult, to ultimately arrive at a just and right division of the marital estate as circumstances necessitate.

The Court affirmed the Trial Courts ruling that it did not have jurisdiction to maintain a divorce but overruled the Trial Courts ruling returning the children after exercising emergency jurisdiction. On a side note, it appears at the time of ruling from the Court of Appeals no one is sure where the mother or the children are located and she may have fled the jurisdiction of the Court. The COA’s ruled the Trial Court has temporary emergency jurisdiction when children are present in the state and have been abandoned or are subject to mistreatment or abuse. This exercise of jurisdiction is reserved for extraordinary circumstances. Nothing in the record justified trial court’s exercise of temporary emergency jurisdiction in this case.

It seems as if the mother’s location isn’t publicly known and potentially returned to either China or Singapore then the father has no remedy at law to seek parenting rights. If this is the case, then I don’t follow the COA’s reasoning the children were not in a state or condition of abuse. In all practicality, they are going to grow up without one of their parents by the unilateral acts of one of the parents. I’m pretty sure this is a form of abuse.