In re A.T.
| Decision Date | 31 May 2017 |
| Docket Number | No. 05-16-00539-CV,05-16-00539-CV |
| Parties | IN THE INTEREST OF A.T., N.T., B.T., AND B.T., CHILDREN |
| Court | Texas Court of Appeals |
On Appeal from the 470th Judicial District Court Collin County, Texas
Before Justices Fillmore, Whitehill, and Boatright
Opinion by Justice Fillmore
Father filed a petition for divorce in the 401st Judicial District Court seeking to dissolve his common law marriage with Mother. Mother filed a counter-petition for divorce also seeking to dissolve the parties' common law marriage. Father failed to appear at trial and, after hearing evidence, the trial court made oral rulings granting the divorce, naming Mother the sole managing conservator of the parties' four children, A.T., N.T., B.T., and B.T., and dividing the community estate. Before the judge of the 401st Judicial District Court signed a final divorce decree, the case was transferred to the 470th Judicial District Court. The judge of the 470th Judicial District Court signed a final divorce decree reflecting the rulings made at trial.1
Father appeals the final divorce decree asserting, in his first eight issues, that the trial court abused its discretion by (1) granting, ten days prior to trial, Father's attorney'ssubstantively defective motion to withdraw and by failing to sign a written order granting the motion; (2) entering a default judgment against Father without proof that he had actual notice of the trial setting; (3) ordering Father to pay child support and medical support for the children without evidence of his income at the time of trial; (4) granting a divorce and dividing property without evidence at trial establishing a common law marriage; (5) awarding a disproportionate share of the community estate to Mother; (6) appointing Mother sole managing conservator and Father possessory conservator of the children when there was no or insufficient evidence to rebut the statutory presumption that parents should be named joint managing conservators (7) ordering Father to pay Mother's attorney's fees when there was no evidence of fees incurred for the divorce that were not related to enforcement and other proceedings for which Father had already paid attorney's fees ordered by the trial court; and (8) denying Father's motion for new trial. In his ninth issue, Father asserts he was denied due process of law because the judge of the 401st Judicial District Court applied a different standard for notice of the trial setting than did the judge of the 470th Judicial District Court. We reverse those portions of the final divorce decree (1) pertaining to child support and medical support for the children and to conservatorship of the children, and (2) ordering Father to pay $20,000 in attorney's fees and remand those issues to the trial court for further proceedings consistent with this opinion. In all other respects, we affirm the final divorce decree.
On April 11, 2014, Father filed a pro se petition for divorce seeking the dissolution of his and Mother's common law marriage. Father alleged the parties were married on or about May 2007. Father requested he and Mother be appointed joint managing conservators of the parties' four children, but that he be given the exclusive right to establish the children's primary residence and to make decisions regarding their education.
Mother responded and filed a counter-petition for divorce also seeking to dissolve the parties' common law marriage. Mother alleged the parties had been married on or about July 30, 2005. Mother also alleged Father had a history of committing family violence. Mother requested she be appointed sole managing conservator of the children and sought child support and spousal maintenance. She also requested a disproportionate share of the marital estate based on fault in the breakup of the marriage, disparity in the earning power of the spouses and their ability to support themselves, need for future support, wasting of community assets by Father, attorney's fees to be paid, and actual and constructive fraud committed by Father.
The trial court held a hearing on May 8, 2014, on the parties' request for temporary orders. Father testified that he began living with Mother in 2002 in his mother's house. He and Mother were married without a marriage license or a wedding ceremony, but had a Vietnamese-style ceremony for their engagement. According to Mother, she and Father were married without a marriage license on July 30, 2005. The couple moved to the marital residence in 2006.
Mother testified there was always a "lot of tension" in her and Father's relationship, and Father was physically, mentally, and emotionally abusive. Father would often come home late at night intoxicated and would wake her and the children by yelling and screaming. Mother stated that Father had hit her, thrown things at her, and called her "very bad names," and had threatened to kill her sister. Mother's sister testified that Father threatened to physically harm her and she had seen Father hit, strike, and push Mother. According to Mother, Father had a criminal history including convictions for assault in a family violence case, driving while intoxicated, possession of marijuana, evading arrest, and driving with a suspended license.
Father testified he was never physically abusive toward either Mother or the children, but Mother physically abused him. According to Father, every time he and Mother had an argument,she would push him. In 2004, Mother pushed him during an argument and he "tried to block." While he was trying to defend himself with his hands, he accidently hit Mother in the face. After a neighbor called the police, he was arrested for "family violence." Father also testified about an incident in which he hit a wall after Mother pushed him when he was holding their son. Father "pressed charges," but dropped the case after Mother asked him to do so.
Mother testified she quit working in 2007 to care for the children. Father owned an automotive mechanic shop specializing in European vehicles. According to Mother, Father was sometimes paid in cash for his work, "made money" from his business, and owned a Ferrari, a Mercedes, a BMW, and a Honda Odyssey. Father testified he earned approximately $100,000 per year, but was not certain of the amount because he did not "keep track." Father denied that he was ever paid for his work in cash. As to the vehicles that Mother testified about, Father stated the Honda was his brother's van, his father owned the Ferrari, and he sold the BMW two years before the hearing. He currently owned a 1999 Mercedes S500.
Mother testified that, during the marriage, she had access to personal bank accounts and bank accounts for Father's business. The money in Mother's personal account was from "what [Father] gave" her, and she used the money to pay the family's expenses. With Father's authorization, she also made personal and family purchases using the business accounts. According to Father, he gave Mother cash and Mother would pay the family's expenses. He never authorized Mother to spend money from the business's bank accounts. Father left the marriage after he learned during an audit of his business by the Internal Revenue Service (IRS) that Mother had been embezzling money from his company. A deficiency notice issued by the IRS on December 5, 2012, following an audit of the business for the 2010 tax year, indicated that $196,775.25 of corporate business income was deposited in Mother's and Father's personal bank accounts, $5,615 was transferred from business bank accounts to Mother and Father's accounts,and $59,850.69 of personal expenses were paid by the business. The IRS found a tax deficiency of $30,228.
According to Mother, in February 2014, Father "cut off" her access to funds, canceled the automobile insurance on her vehicle, and canceled her and the children's health insurance policy. Mother had been forced to borrow money from her family to pay her monthly bills and attorney's fees. After moving out of the marital home, Father changed his phone number and had not told Mother where he was living. Father had not been involved in caring for the children and had not seen the children since March 30, 2014. Mother's sister confirmed that, based on her observations, Father had not been very involved with the children.
At the end of the hearing, the trial court orally made an affirmative finding of family violence, named Mother temporary sole managing conservator and Father possessory conservator of the children, and established a standard visitation schedule for Father. The trial court ordered Father to reinstate the automobile insurance policy for Mother's vehicle and the health insurance policy for Mother and the children. The trial court also ordered Mother and Father to prepare inventories and appraisals within forty-five days of the hearing. "By way of temporary spousal support," the trial court ordered Father to pay the mortgage and insurance on the marital residence. Mother was ordered to pay the costs of utilities and maintenance for the residence. Father was also ordered to pay $15,000 to Mother for interim attorney's fees and, based on the finding of family violence, $500 per month in spousal support. Noting the evidence showed a "lifestyle that sure indicates a heck of a lot of money," the trial court ordered Father to pay "guideline child support" based on "at least $100,000."
Finally, the trial court made a finding that there was an informal marriage. It indicated it did not have sufficient evidence to determine the exact date of the marriage, but stated it was clear both Mother and Father "believe they have been married for a number of years." The trialcourt stated it would "figure that one out" if it needed to, "but at the very least, we're eight years."
The trial court signed "agreed" temporary orders on August 11, 2014, reflecting its rulings. Father...
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