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Sometimes courts make mistakes.  When a Texas divorce court makes a clerical error, the court has the power to correct that error for a period of time, generally within 30 days.  If the error is not corrected before the court’s plenary power to correct has expired, it may still be corrected by a judgment nunc pro tunc. The court may only correct a clerical error through a judgment nunc pro tunc and cannot use a judgment nunc pro tunc to correct a judicial error.

A husband recently challenged a judgment nunc pro tunc on the grounds that the alleged error in the original judgment was not a clerical error.  The parties had each signed the decree and approved it in form and substance, but the wife’s attorney approved it as to form only.  The divorce court and all parties also signed another document, the Qualified Domestic Relations Order (QDRO), that awarded 35 percent of the husband’s military retirement pay to the wife.  The divorce decree did not reflect this award.

The husband petitioned the court to amend the QDRO to match the decree, arguing the QDRO was an impermissible modification of the property division.  The wife argued its omission was a clerical error in the divorce decree and that the decree was ambiguous.  The husband argued the divorce court did not have subject matter jurisdiction to modify the decree.

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Modification of a Texas custody order can generally only occur on agreement of the parties or when there is a material and substantial change in circumstances.  However, the change in circumstances alone is not sufficient to justify modification, the modification must also be in the child’s best interests.

In a recent case, a father challenged a trial court’s denial of his petition to modify custody.  He argued the trial court abused its discretion in finding there was no material or substantive change, allowing the mother to be joint-managing conservator and failing to render a possession order in his favor.

The original order was modified in 2015.  In 2016, the father petitioned to modify the order, asking to be named sole-managing conservator with the sole right to designate the child’s primary residence.  He alternatively requested the court name him joint-managing conservator with all the exclusive rights of a managing conservator or with the sole right to designate primary residence and expanded possession.  He asked the court to either deny the mother access to the child or to have her access supervised.

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A Texas divorce case is not always over when the judge signs the final divorce decree.  The decree sets forth the property division, but the parties must take action to achieve the division.  If party fails to surrender property, the other party may need to file a motion to enforce the property division in the decree.  A former husband recently challenged an enforcement order, arguing that the motion had not been filed timely and the claim was time-barred.

The couple divorced in 2012.  The wife moved for enforcement of the agreed divorce decree in 2016.  She also petitioned for breach of alimony contract.  The court held a bench trial and subsequently signed an enforcement order, ordering the husband to make the payments to satisfy the funds transfers required by the decree, to make the unpaid alimony payments, to provide health insurance for the children and reimburse the mother for the premiums she had paid, add the mother to the custodial accounts for the children, and pay the mother’s attorney’s fees.  The husband appealed.

The husband argued the portions of the order awarding funds to the wife were barred by the statute of limitations.  Section 9.003 of the Texas Family Code requires a suit to enforce division of tangible personal property to be filed within two years from the date the decree was signed or becomes final after appeal.

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The dispute in a Texas custody case is usually between the child’s parents.  In some cases, however, other parties may become involved.  In one recent case, the father’s parents got so involved, they intervened in the custody case and the mother filed claims against them.

In 2015, the trial court appointed the mother and father joint managing conservators of their daughter.  The father was given the exclusive right to determine her primary residence.  The daughter primarily lived with her father’s parents and went to school in Santa Fe.  The mother lived in Houston.

The mother moved to modify the order after learning the father had been arrested.  She sought the exclusive right to designate the daughter’s primary residence and requested that the father be denied access or have his visits supervised.

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When a respondent fails to answer a Texas divorce petition, the petitioner may seek a default judgment granting the divorce.  However, unlike in other types of cases, the unanswered allegations in a divorce petition are not deemed confessed.  The petitioner must present evidence that supports the material allegations.  If the trial court makes findings without sufficient supporting evidence, the non-participating party may have a right to appeal in certain circumstances, despite his or her failure to participate.

In a recent case, a husband filed a restricted appeal of a final divorce decree.  The husband did not answer the divorce petition.  Only the wife appeared and testified at the final hearing.  The court entered a divorce decree that designated conservatorship over the children, addressed visitation, ordered the husband to pay child support, and divided the community estate.  To succeed on a restricted appeal, the husband must show that he filed notice of the restricted appeal within six months of the judgment or order, he was party to the suit but did not participate in the hearing, and he did not file a timely post-judgment motion, request findings of fact and conclusion of law, or file notice of appeal within the required time frames.  Furthermore, he must also show that there is an error apparent on the record’s face.  The appeals court may therefore only consider evidence that was before the trial court.

The appeals court found the husband had met the requirements for the restricted appeal.  He had timely filed his restricted appeal.  He had not answered the petition or participated in the hearing.  Additionally he had not filed a post-judgment motion, request for findings and conclusions, or appeal.  Although a hearing had been held by the trial court, there was no evidence regarding the value of the marital estate, the income and debts of the parties, the children’s relationship with their parents, the children’s ages, or the children’s residences.  The appeals court found the trial court had made factually based decisions without supporting evidence.  The trial court made decisions relating to conservatorship and visitation.  It ordered the husband to pay child support.  The court also divided the community estate.  The appeals court therefore found there was error apparent on the face of the record.

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Most Texas divorces address property division and custody and visitation issues, where there are children.  In some cases, however, there are more unusual issues that must be addressed.  In one recent case, a father challenged a court’s order allowing the mother to change the children’s last name from their father’s name to their mother’s maiden name.

The parents had two children together.  The father is currently serving a life sentence without parole for an offense that occurred when his children were one and three years old.  The mother petitioned for divorce.  She requested to be appointed sole managing conservator, to change the children’s name, and to keep the father from having contact with the children.

The mother testified that the father’s family did not help after he was incarcerated.  She thought contact with the father would threaten the kids’ emotional welfare.  She testified that the father was a former gang member and she was afraid of him. She argued that keeping their father’s name “would be a source of anxiety, embarrassment, inconvenience or disruption” to the kids.

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Usually, in a Texas divorce case, both parties know and agree that they were married.  In some cases, however, the parties may disagree as to whether there has been an informal marriage.  An informal marriage can be proven by showing that the couple agreed to be married, subsequently lived together in Texas as spouses, and represented themselves as married.  TEX. FAM. CODE ANN. § 2.401.  Texas courts have held that evidence that the parties held themselves out as married must be particularly convincing and be more than occasional references to each other as husband or wife.

A mother recently challenged a court’s finding that she had not been informally married to the father of her children.  The couple had two children together, one who was six and the other who was 21.  The mother petitioned for divorce, arguing that she and the father married on or about 1996.  In his answer, the father stated there was no existing marriage.

At the hearing, the mother testified that she believed she and the father had agreed to be informally married when they moved in together.  She said the father introduced her to his friends and family as his wife.  She admitted, however, that she always filed her taxes as single.  She also conceded that her name was not on the deed to the house, and it instead named the father and his father as the owners.

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When one parent wants to move away with the child, the court hearing the Texas custody case must determine whether the move is in the child’s best interest.  In making its determination, the court needs to consider the public policies set forth in the Texas Family Code.  The court may also consider reasons for and against the move, opportunities the move will provide, accommodation of the child’s needs and talents, relationships with extended family, visitation and communication with the noncustodial parent, the non-custodial parent’s ability to relocate, and the child’s age.  The court may also consider the same factors to be considered in determining the best interest of the child generally.

In a recent case, a mother challenged a geographic residency limitation the court placed on the child when she had planned to move.  The mother filed for divorce and asked the court to appoint her as joint managing conservator and give her the exclusive right to designate the child’s primary residence.  The father asked that the parties be appointed joint managing conservators, but also sought the exclusive right to designate the child’s primary residence.

During the marriage, the couple had lived in Cass County.  The child went to pre-K in Cass County, but both parents worked in Bowie County.  After the separation, both parents moved to different areas of Bowie County and the child went to school where his mother lived.

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A change in Texas custody may be justified even when both parents love and care for the child.  A custody modification is appropriate when there is a material and substantial change in circumstances of the parent or child and if the change is in the child’s best interest.  Sometimes, changed circumstances put the non-custodial parent in a better position to provide for the child’s best interests, even if everyone agrees that the custodial parent loves and cares for the child.

A mother recently challenged a custody modification. The parents were originally named joint managing conservators under the divorce decree, and the mother was given the exclusive right to determine the child’s primary residence.  The mother was also granted the exclusive right to receive child support.  The father gained expanded possession rights through subsequent agreements, including a mediated settlement agreement (MSA).  The court set forth the terms of the MSA in a 2015 order.

The father later petitioned for greater periods of possession and the right to make educational and medical decisions.  He also sought the exclusive right to determine his son’s primary residence so his home would be the child’s primary residence during the school year.

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After a court issues a Texas child support order based on an agreement of the parties, the trial court may only modify the order if there has been a material and substantial change in circumstances.  If there has been such a change, the court has the discretion to modify the order.  The court’s analysis depends on the resources of the obligor.  If the parent paying child support has net monthly resources equal to or less than an identified amount, currently $8,550, the court must base the presumptive award on a percentage of the net resources and the number of children.  If the net monthly resources are greater than this amount, then the court has the discretion to order amounts greater than the presumptive award, depending on the parties’ income and the “proven needs” of the children.  Thus, the court must determine the proven needs of the children before awarding an amount greater than that set by the guidelines.  If the children’s needs exceed the presumptive award, the court allocates the difference between the parties.  No party can be required to pay more than 100% of the proven needs of the children.  Unfortunately, neither the legislature nor the courts have clearly defined “needs,” but the Texas Supreme Court has stated that needs are not determined by the family’s lifestyle or the parents’ ability to pay.

In a recent case, a father challenged a modification that ordered him to pay an amount greater than the monthly guidelines.

The father also challenged whether there was a material and substantial change in circumstances, but the appeals court readily found that a significant increase in the father’s income since the Agreed Order was sufficient to support a modification.

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