The Court Has Spoken: Case Law Update

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1 The Court Has Spoken: Case Law Update

2 Texas Case Law Mara Flanagan Friesen Deputy Director for Child Support Texas Office of the Attorney General

3 The Office of the Attorney General of Texas v. Scholer, 403 S.W.3d 859 (Tex 2013) Father/NCP signed an affidavit in 2000, in which he relinquished his parental rights. The affidavit was never filed with a court. Father stopped paying child support, believing his paternal rights had been terminated. Tx OAG files an enforcement action. NCP claims estoppel as a defense. Tx Supreme Court held that the equitable defense of estoppel is not available as a defense to a child support enforcement action. The child s welfare underlies child support enforcement suits, and providing monetary support is a part of a parent s contribution to that welfare. The parent s actions, collectively or individually, cannot affect the duty of support, except as provided by statute. A parent who owes a duty of support must diligently satisfy it.

4 In re C.M.H.G, 2014 Tex. App. LEXIS 3099 (Tex. App. Fort Worth Mar. 20, 2014) Prior to child s birth, Grandmother (G mom) and Father (Dad) had a business and romantic relationship. Mother (G'mom s daughter) gave birth to the child, C.M.H.G. Dad testified that he and Mother had a sexual relationship during the time of the child s conception and that he was the child s father. He also testified that he intended to sign the birth certificate at the hospital where the child was born, but was prevented from doing so by G mom. No genetic test was ever taken. The trial court later found that Mother executed a document in which she acknowledged Dad s paternity

5 In re C.M.H.G, 2014 Tex. App. LEXIS 3099 (Tex. App. Fort Worth Mar. 20, 2014) Department of Family and Protective Services placed the child with G mom shortly after the child s birth. Mother was struck and killed by a car later the same year. G mom testified that she had primary care of the child. Dad testified that G mom relinquished possession of the child to him for the first eighteen months of the child s life and that he provided for the child s daily needs. Another witness testified that G mom was inattentive to the child. The witness testified that G mom would state that the child was a demon seed and that Mother had the child to punish G mom.

6 In re C.M.H.G, 2014 Tex. App. LEXIS 3099 (Tex. App. Fort Worth Mar. 20, 2014) About one year after Mother s death, G mom and Dad traveled to Illinois with the child to visit G mom s family. Dad returned to Texas without the child. The next week, G mom returned to Texas without the child. G mom told Dad that a family member would return the child the following week. Shortly thereafter, G mom threatened Dad with a gun and demanded $10, she claimed he owed her from a business dispute. Dad removed the gun from G'mom and removed G'mom from the premises. G'mom later sent a text message apologizing for the incident and stating that she would return the child in exchange for $10, Five days later, G'mom sent a text message demanding the money.

7 In re C.M.H.G, 2014 Tex. App. LEXIS 3099 (Tex. App. Fort Worth Mar. 20, 2014) Early in the following year, Judge issued a Child Support Review Order establishing Dad s paternity and duty to support the child. Dad later filed a petition to take physical possession of the child. The trial court issued a letter ruling rendering in part that Dad was the acknowledged father of the child. Grandmother filed a petition requesting genetic testing that the trial court later deemed to be a challenge to Dad s acknowledgment of paternity.

8 In re C.M.H.G, 2014 Tex. App. LEXIS 3099 (Tex. App. Fort Worth Mar. 20, 2014) The trial court made these fact findings: DG is the only father that the child has ever known. If DG were not adjudicated as the child's father, there is virtually no chance that the child would ever have a father. It is in the best interest of the child that DG's paternity of the child be established. It is in the best interest of the child that DG should be named as the sole managing conservator.

9 In re C.M.H.G, 2014 Tex. App. LEXIS 3099 (Tex. App. Fort Worth Mar. 20, 2014) The court of appeals held that subsection Texas Family Code (f) gives the trial court the discretion to deny a motion for genetic testing in a case involving acknowledged paternity. The court of appeals stated That despite the formal deficiencies of the acknowledgment of paternity, the trial court acted within its discretion by applying statutory estoppel under section

10 De Leon v. Perry, F.Supp.2d, No. SA-13-CA OLG (W.D. Tex. Feb. 26, 2014) Two women, after an 8-year relationship, got married in Massachusetts, but their marriage could not be recognized in Texas, where they live, because of Texas s constitutional and statutory prohibition on same sex marriage. The women asked the federal district court in San Antonio to overturn Texas s ban on same-sex marriage so that their Massachusetts marriage can be recognized in Texas. Two men, after an 11-year relationship, applied for a marriage license from the Bexar County (San Antonio) district clerk, but were refused because of that prohibition. The men asked the court to overturn Texas s ban so they can legally marry in Texas.

11 De Leon v. Perry, F.Supp.2d, No. SA-13-CA OLG (W.D. Tex. Feb. 26, 2014) The precise issue before the court was whether to issue a preliminary injunction against Texas s prohibition on same sex marriage. Both couples argued that Texas s prohibition violates the equal protection clause of the United States Constitution. The court therefore considered whether there is a rational basis for the prohibition.

12 De Leon v. Perry, F.Supp.2d, No. SA-13-CA OLG (W.D. Tex. Feb. 26, 2014) The couples also argued that Texas s prohibition violates the Due Process Clause of the United States Constitution. The court started with the premise, acknowledged by all, that marriage is a fundamental right which is part of the liberty protected by the Due Process Clause. This right includes the right to marry the person one chooses. The court reasoned that because Texas s prohibition on same sex marriage categorically denies this right to particular persons, it can be upheld only if it survives strict scrutiny. Because the court found no rational basis for denying same sex couples the right to marry, it also found that the ban could not withstand strict scrutiny. The court applied the same reasoning to the recognition of out-ofstate same sex marriages.

13 De Leon v. Perry, F.Supp.2d, No. SA-13-CA OLG (W.D. Tex. Feb. 26, 2014) The State of Texas argued that there were two rationales for the prohibition: (1) to increase the likelihood that a mother and a father will be in charge of childrearing; and (2) to encourage stable family environments for responsible procreation WL , at *14. The court rejected both rationales. It found no evidence to support the assertion that denying marriage to same-sex couples positively affects childrearing. Id.

14 De Leon v. Perry, F.Supp.2d, No. SA-13-CA OLG (W.D. Tex. Feb. 26, 2014) The court concluded that Art. I, 32 of the Texas Constitution banning same sex marriage and the corresponding provisions of the Texas Family Code were unconstitutional. It issued a preliminary injunction against the enforcement of these provisions, but stayed the injunction pending a possible appeal to the Fifth Circuit Court of Appeals. Texas s Attorney General Greg Abbott has appealed this case to the Fifth Circuit.

15 Office of the Attorney General of Tex. v. Long, 401 S.W.3d 911(Tex. App. Houston [14 th Dist.] May 21, 2013, no pet.). Father and Mother filed for divorce in North Carolina. The North Carolina trial court issued a judgment of absolute divorce. In its findings of fact, the North Carolina trial court found that there are no claims for child support, alimony or equitable distribution of marital property between the parties. The North Carolina court never issued an order setting Father s child support obligation.

16 Office of the Attorney General of Tex. v. Long, 401 S.W.3d 911(Tex. App. Houston [14 th Dist.] May 21, 2013, no pet.). Father moved to Texas while Mother and the children remained in North Carolina. Mother sought services from the North Carolina Title IV-D Agency who referred the matter to the Texas OAG to establish child support. The Texas OAG filed a petition to establish Father s child support obligation. Father filed a plea to the jurisdiction arguing that the Texas trial court did not have subject matter jurisdiction to modify the child support order pursuant to Texas Family Code because the North Carolina Court was the Court of Continuing Exclusive Jurisdiction (CCEJ). The trial court granted Father s plea to the jurisdiction and dismissed the cause without prejudice.

17 Office of the Attorney General of Tex. v. Long, 401 S.W.3d 911(Tex. App. Houston [14 th Dist.] May 21, 2013, no pet.). On appeal, the OAG argued that the North Carolina judgment of absolute divorce did not confer CCEJ on that court because it does not expressly establish a child support obligation. Under North Carolina law, if claims for custody or support are not pursued in the original divorce proceeding, they may be maintained as independent civil actions. Because of this, parties can limit their request for relief solely to dissolution of marriage. The divorce decree in this case expressly states that there are no claims for child support. Under these circumstances, the Texas OAG argued that the North Carolina court was likely precluded from establishing the child support obligation.

18 Office of the Attorney General of Tex. v. Long, 401 S.W.3d 911(Tex. App. Houston [14 th Dist.] May 21, 2013, no pet.). The Texas OAG relied on a Nevada case, Mason v. Cuisenaire, 128 P.3d 446 (Nev. 2006), in which the Nevada Supreme Court held that a North Carolina judgment of absolute divorce containing language similar to the judgment in the present case was not a child support order that conferred CCEJ. The court of appeals relied on Mason and held that the judgment for absolute divorce was not a child support order that conferred CCEJ on the North Carolina court. Thus, the court of appeals reversed the trial court s judgment and remanded the cause back to the trial court.

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