THL_AprMar14

Above-Guideline Child Support: From Divorce to Bankruptcy and Modification The Status of Marriage Equality in the Aftermath of DOMA’s Demise Immigration Considerations for the Family Law Practitioner “Late to the Game” Standing in CPS Cases for Relatives In re Lee: A Mediated Agreement Causes a Clash Between Long Standing Policies

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THE HOUSTON

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Volume 51 – Number 5

March/April 2014

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contents Volume 51 Number 5

March/April 2014

10

16

FEATURES Child Support: 10 Above-Guideline From Divorce to Bankruptcy and Modification

By Aaron M. Reimer and Benjamin Ritz

Status of Marriage Equality in 16 The the Aftermath of DOMA’s Demise

By Sam M. (Trey) Yates, III

Considerations for 20 Immigration the Family Law Practitioner

By Kelly L. Fritsch

20

24

to the Game Standing’ 24 ‘Late in CPS Cases for Relatives

By Patrick W. Upton

re Lee: A Mediated Agreement 30 InCauses a Clash Between Long Standing Policies

By The Hon. Josefina M. Rendón

Bar Foundation 34 Houston Recognizes Outstanding Pro Bono, Volunteer Efforts

The Houston Lawyer

30

34

The Houston Lawyer (ISSN 0439-660X, U.S.P.S 008-175) is published bimonTHLy by The Houston Bar Association, 1300 First City Tower, 1001 Fannin St., Houston, TX 77002-6715.

Periodical postage paid at Houston, Texas. Subscription rate: $12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1300 First City Tower, 1001 Fannin, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehoustonlawyer.com, e-mail: leo@quantumsur.com Views expressed in The Houston Lawyer are those of the authors and do not necessarily reflect the views of the editors or the Houston Bar Association. Publishing of an advertisement does not imply endorsement of any product or service offered. ©The Houston Bar Association, 2014. All rights reserved.

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March/April 2014

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contents Volume 51 Number 5

March/April 2014

34 36

37

departments Message 6 President’s Growing the Bar’s Family

By David A. Chaumette the Editor 8 From Family Law is Changing With Society

By Robert Painter Lawyers Who Made a Difference 36 Houston Dan Walton

By The Hon. Mark Davidson Profile in Professionalism 37 AMarcy Rothman

38

39

Director, Kane Russell Coleman & Logan, P.C.

the Record 38 Off A Lawyer Who Danced

By The HON. Jeff Work SPOTLIGHT 39 COMMITTEE Gender Fairness Committee

Promoting Success For All Lawyers

By Judy Ney

Trends 40 Legal General Liability Insurance Policy

42

Must Protect the Policy Holder’s Failure to Perform Construction Work in a “Good and Workmanlike Manner”

By Preston Hutson

A Fatal Analytical Gap: Legal-Malpractice-Damages Experts Must Provide a Reasoned Basis for Their Opinions

By Angie Olalde Reviews 42 Media World War II Law and Lawyers:

Issues, Cases, and Characters Reviewed by Preston D. Hutson

Gods of Guilt Reviewed by Taunya Painter

The Houston Lawyer

44 Litigation MarketPlace THE BAR 45 ATPortrait Unveiling and Judicial Investitures

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March/April 2014

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Join the Houston Bar Association’s 100 Club The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal profession and the betterment of the community. The following law firms, corporate legal departments, law schools and government agencies with five or more attorneys have become members of the 100 Club by enrolling 100 percent of their attorneys as members of the HBA. Firms of 5-24 Attorneys Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Adair & Myers PLLC Ajamie LLP Andrews Myers, P.C. Bair Hilty, P.C. Baker Williams Matthiesen LLP The Bale Law Firm, PLLC Barrett Daffin Frappier Turner & Engel, LLP Bateman | Pugh | Chambers, PLLC Bell, Ryniker & Letourneau, P.C. Berg & Androphy Bingham, Mann & House Blank Rome LLP Brewer & Pritchard PC Buck Keenan LLP Burck, Lapidus, Jackson & Chase, P.C. Bush & Ramirez, P.L.L.C. Caddell & Chapman Cage Hill & Niehaus, L.L.P. Campbell Harrison & Dagley LLP Campbell & Riggs, P.C. Chernosky Smith Ressling & Smith PLLC Christian Smith & Jewell, L.L.P. Connelly • Baker • Wotring LLP Cozen O’Connor Crady, Jewett & McCulley, LLP David Black & Associates De Lange Hudspeth McConnell & Tibbets LLP Devlin Naylor & Turbyfill PLLC Dinkins Kelly Lenox Lamb & Walker, L.L.P. Dobrowski, Larkin & Johnson LLP Dow Golub Remels & Beverly, LLP Doyle Restrepo Harvin & Robbins, L.L.P. Ebanks Horne Rota Moos LLP Edison, McDowell & Hetherington LLP Ellis, Carstarphen, Dougherty & Griggs P.C. Ewing & Jones, PLLC Faubus Keller LLP Fernelius Alvarez PLLC Fibich Hampton Leebron Briggs Josephson, LLP Fisher, Boyd, Brown & Huguenard, LLP Fisher & Phillips LLP Fizer Beck Webster Bentley & Scroggins, P.C. Fleming, Nolen & Jez, L.L.P. Frank, Elmore, Lievens, Chesney & Turet, L.L.P. Fullenweider Wilhite PC Funderburk Funderburk Courtois, LLP Galloway Johnson Tompkins Burr & Smith Germer PLLC Givens & Johnston PLLC Godwin Lewis, P.C. Goldstein Law PLLC Gordon & Rees LLP Greer, Herz & Adams, L.L.P. Hagans Burdine Montgomery & Rustay, P.C. Harberg Huvard Jacobs Wadler LLP Harris, Hilburn & Sherer Harrison, Bettis, Staff, McFarland & Weems, L.L.P. Hartline Dacus Barger Dreyer LLP

Hays McConn Rice & Pickering, P.C. Henke Law Firm, LLP Hicks Thomas LLP Hirsch & Westheimer, P.C. Holm | Bambace LLP Holmes, Diggs & Eames, PLLC Hunton & Williams LLP Jackson Gilmour & Dobbs, PC Jackson Lewis LLP Jenkins Kamin, L.L.P. Johnson DeLuca Kurisky & Gould, P.C. Johnson Radcliffe Petrov & Bobbitt PLLC Johnson, Trent, West & Taylor, L.L.P. Jones Walker LLP Joyce, McFarland + McFarland LLP Kane Russell Coleman & Logan PC Kelly, Sutter & Kendrick, P.C. Kroger | Burrus LeBlanc Bland P.L.L.C. Legge Farrow Kimmitt McGrath & Brown, L.L.P. Linebarger Goggan Blair & Sampson LLP Liskow & Lewis Lorance & Thompson, PC MacIntyre, McCulloch, Stanfield & Young LLP McGinnis Lochridge McGuireWoods LLP McLeod Alexander Powel & Apffel PC MehaffyWeber PC Miller Scamardi & Carraba Mills Shirley L.L.P. Morris Lendais Hollrah & Snowden Munsch Hardt Kopf & Harr, P.C. Murray | Lobb PLLC Nathan Sommers Jacobs Ogden, Gibson, Broocks, Longoria & Hall, LLP Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Pagel Davis & Hill PC Parrott Sims & McInnis, PLLC Perdue Brandon Fielder Collins & Mott Perdue & Kidd LLP Phelps Dunbar LLP Phillips, Akers & Womac, PC Pillsbury Winthrop Shaw Pittman LLP Ramey, Chandler, McKinley & Zito Ramsey & Murray PC Reynolds, Frizzell, Black, Doyle, Allen & Oldham L.L.P. Roach & Newton, L.L.P. Ross, Banks, May, Cron & Cavin, P.C. Royston, Rayzor, Vickery & Williams, L.L.P. Rusty Hardin & Associates, P.C. Rymer, Moore, Jackson & Echols, P.C. Schiffer Odom Hicks & Johnson PLLC Schirrmeister Diaz-Arrastia Brem LLP Schwartz, Junell, Greenberg & Oathout, LLP Schwartz, Page & Harding L.L.P. Shannon, Martin, Finkelstein & Alvarado, P.C. Shepherd, Scott, Clawater & Houston, L.L.P. Shipley Snell Montgomery LLP Short Carter Morris, LLP

Singleton Cooksey PLLC Smith Murdaugh Little & Bonham, L.L.P. Smyser Kaplan & Veselka, L.L.P. Sprott, Rigby, Newsom, Robbins & Lunceford, P.C. Stevenson & Murray Strong Pipkin Bissell & Ledyard, L.L.P. Stuart & Associates P.C. Sutton McAughan Deaver, PLLC Tekell, Book, Allen & Morris, L.L.P. Thompson & Horton LLP Thompson, Coe, Cousins & Irons, LLP Tucker, Taunton, Snyder & Slade, P.C. Tucker Vaughan Gardner & Barnes, P.C. The Ward Law Firm Ware, Jackson, Lee & Chambers, L.L.P. Watt Beckworth Thompson Henneman & Sullivan LLP Weycer Kaplan Pulaski & Zuber, P.C. White Mackillop & Gallant P.C. Williams, Birnberg & Andersen, L.L.P. Williams Kherkher Williams Morgan, P.C. Willingham, Fultz & Cougill, LLP Wilson, Cribbs & Goren, P.C. Wilson, Elser, Moskowitz, Edelman & Dicker Wright Abshire, Attorneys, PC Wright & Close, L.L.P. Yetter Coleman LLP Ytterberg Deery Knull LLP Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. Zimmermann, Lavine, Zimmermann, & Sampson, P.C. Zukowski, Bresenhan, Sinex & Petry LLP Firms of 25-49 Attorneys Adams & Reese LLP Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C. Akin Gump Strauss Hauer & Feld LLP Baker & McKenzie LLP Beck I Redden LLP Beirne, Maynard & Parsons, L.L.P. Chamberlain Hrdlicka White Williams & Aughtry Coats I Rose Cokinos Bosien & Young Gibbs & Bruns LLP Greenberg Traurig, LLP Hoover Slovacek LLP Jones Day Littler Mendelson, PC Martin, Disiere, Jefferson & Wisdom, L.L.P. Olson & Olson LLP Roberts Markel Weinberg Butler Hailey PC Seyfarth Shaw LLP Firms of 50-100 Attorneys Baker Hostetler LLP Gardere Wynne Sewell LLP Jackson Walker L.L.P.

Morgan, Lewis & Bockius LLP Porter Hedges LLP Thompson & Knight LLP Winstead PC Firms of 100+ Attorneys Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski LLP Haynes and Boone LLP Locke Lord LLP Vinson & Elkins LLP Corporate Legal Departments Anadarko Petroleum Corporation AT&T Texas BP CenterPoint Energy El Paso Corporation Kellogg Brown & Root Inc LyondellBasell Industries MAXXAM Inc Newfield Exploration Company Petrobras America Inc. Plains Exploration & Production Co. Pride International Inc. Rice University S & B Engineers and Constructors, Ltd Sysco Corporation Texas Children’s Hospital Total E&P USA Inc. University of Houston System Law School Faculty South Texas College of Law Thurgood Marshall School of Law University of Houston Law Center Government Agencies City of Houston Legal Department Harris County Attorney’s Office Harris County District Attorney’s Office Harris County Domestic Relations Office Metropolitan Transit Authority of Harris County Texas Port of Houston Authority of Harris County Texas

president’s message

By David A. Chaumette Chaumette, PLLC

I

Growing the Bar’s Family

n February, I had the pleasure of speaking at the investiture of

We at the HBA are fortunate to have a strong, vibrant—and

Associate Judge Katrina Griffiths in the family courts. I have

hardworking­—Family Law Section. It’s one of our largest sections,

been fortunate enough to speak at several investitures over

and their monthly luncheons provide important opportunities for

the years, even before I became HBA president, and those are

CLE and networking. In addition, there are family law lawyers

some of the true highlights of my bar service. It’s an opportunity to join with the

legal community to recognize and thank someone whose journey of service has reached an important milestone.

Preparing my remarks for that day, I reflected on the importance of family law lawyers in our society. It is often some of the most difficult, heart-wrenching work we lawyers do.

Yes, a complex Reg D fililng can be stressful, but dealing with abuse cases, helping navigate emotionally difficult issues, can really wear on you. Those who practice in that area have a special place in the bar, as they protect those who often have nowhere else to turn and need our guidance the most.

Furthermore, those practitioners are often the real face of the bar. As much as I love e-

“

From adoptions to divorce and everything in between, lawyers in this area are on the front lines for the public as people go through their lives.

discovery as a practice area, the general public probably will never have that much use for my particular area of expertise. I under-

The Houston Lawyer

at every Legalline and on several other HBA

”

committees, not to mention the HBA Board.

As we look for reasons to join and be active in the HBA, the Family Law Section stands out as a pillar and an example of what the Bar does best.

Basically, family law lawyers help the rest of us (including other lawyers) navigate the tricky issues that come up in this area. And if you have ever spent any time in the Family Law Center, you know that there is no shortage of work in that area. In fact, family law assistance is a cornerstone of our Houston Volunteer Lawyers program. Every year, HVL advises over 6,000 Houston area residents on legal issues, many of them family issues. That said, there is always room for more of us to help on these cases—and we should all find ways to

help those with needs in this area, either at a clinic or by taking a case through the HVL.

stand that and am comfortable with my place in the pantheon.

For those reasons, I asked The Houston Lawyer editorial board

Family lawyers are in a far different place. Few, if any of us, can

to focus on family law for this issue. For those of us who do not

say that we do not personally know of someone who has needed

practice in this area, the articles provide insight into the key issues

professional assistance in this area. From adoptions to divorce and

facing family lawyers. It is also recognition of the important work

everything in between, lawyers in this area are on the front lines

being done in that area, work that impacts people from every seg-

for the public as people go through their lives.

ment of society every day.

6

March/April 2014

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Defending Texans Since 1994 Former Assistant United States Attorney Former Assistant District Attorney Founding Member of the National College of DUI Defense of Counsel Williams Kherkher LLP Law Office of Ned Barnett

Gulf Freeway Office: 8441 Gulf Freeway, Suite 600 • Houston, Texas 77017

713-222-6767 • www.nedbarnettlaw.com Board Certified in Criminal Law by the Texas Board of Legal Specialization thehoustonlawyer.com

March/April 2014

7

from the editor

By Robert Painter Painter Law Firm PLLC

Associate Editors

Julie Barry Attorney at Law

Angela L. Dixon Attorney at Law

Farrah Martinez Harris County District Clerk’s Office

Family Law is Changing With Society

D

avid Guinn was one of my favorite progoing on in society. fessors at Baylor Law School. He taught And, like Supreme Court decisions, someone in the constitutional law and future looking at the rapid changes related courses. Probeing decided by our courts would fessor Guinn frequenthave to look at contemporaneous ly commented that history for context. the U.S. Constitution was “always Courts are writing opinions that changing, yet always the same.” would have been unimaginable to This scholar and master story teller most people even 20 years ago. As was also fond of saying that it is a result of this new common law, impossible to interpret many U.S. statutes and regulations are also beSupreme Court decisions correctly ing rewritten. without understanding what was This issue of The Houston Lawgoing on in society at that time. yer reflects a gamut of evolving As I read the interesting articles family law topics, from new twists in this issue, I could not help but on old concepts to new laws that think about how Professor Guinn’s are changing almost daily. Judge sage observations are also true in Josefina Rendon writes about methe area of family law. diated agreements and the In re Family law is always changing, Lee case. Trey Yates discusses maryet always the same. riage equality following DOMA’s Like it or not, our society’s view demise. Patrick Upton writes of the family is rapidly changing. about a challenge for “late to the Many young people choose longgame” relatives in CPS cases. term cohabitation without getting Aaron Reimer and Benjamin Ritz married. Divorce rates are high. address considerations for aboveSame-sex marriage is an issue being guideline child support. And Kelly Professor David Guinn litigated all over the country. As soFritsch tackles immigration issues ciety changes the law is evolving, too, to reflect what is for family lawyers.

“

The Houston Lawyer

Don Rogers Harris County District Attorney’s Office

Jill Yaziji Yaziji Law Firm

8

March/April 2014

U.S. Constitution was ‘always changing, yet always the same.’

”

thehoustonlawyer.com

BOARD OF DIRECTORS President

Secretary

David A. Chaumette

Neil D. Kelly

President-Elect

Treasurer

M. Carter Crow

Laura Gibson

First Vice President

Past President

Todd M. Frankfort

Brent Benoit

Second Vice President

Benny Agosto, Jr.

DIRECTORS (2012-2014)

Alistair B. Dawson Brent C. Perry

Warren W. Harris John Spiller

Hon. David O. Fraga Bill Kroger

DIRECTORS (2013-2015) Jennifer A. Hasley Daniella D. Landers

editorial staff Editor in Chief

Robert Painter Associate Editors

Julie Barry Farrah Martinez Jill Yaziji

Angela Dixon Don Rogers Editorial Board

Keri Brown Stacey Burke Suzanne Chauvin Alan Curry Britt Davis Eric Davis Jonathan C.C. Day Todd Dupont Sammy Ford Kelly Fritsch Jason Goff Polly Graham John Gray Amy Hargis Al Harrison Preston Hutson Tammy Manning Chance McMillan Judy Ney Anjali Nigam Angie Olalde Jeff Oldham Taunya Painter Bridget Purdie Aaron Reimer Hon. Josefina Rendon Timothy Riley James Stafford Hon. Jeff Work

Managing Editor

Tara Shockley

HBA office staff Membership and Technology Services Director

Executive Director

Kay Sim

Administrative/ Financial Assistant

Ron Riojas

Ashley G. Steininger Director of Projects

Membership Assistant

Ariana Ochoa

Bonnie Simmons

Continuing Legal EducationAssistant

Receptionist/ Resource Secretary

Director of Education

Lucia Valdez

Lucy Fisher Cain

Communications Director

Communications/ Web Designer

Tara Shockley

Amelia Burt

Amy Verbout

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thehoustonlawyer.com

March/April 2014

9

By Aaron M. Reimer and Benjamin Ritz

Above-Guideline Child Support:

From Divorce to Bankruptcy and Modification

T

exas Family Code Section 151.001(b) imposes an affirmative duty on Texas parents to support their unemancipated minor children who are fully enrolled in a high school or other secondary education program.1 Section 151.001(d) gives courts the authority to issue orders affecting those rights and duties, including the duty of support.2 The purpose of a child-support suit is to obtain an order requiring a parent to pay for a child’s financial3 and medical support.3 The suit may be initiated independently or filed together with another suit, such as a suit for divorce, conservatorship or parentage. To determine the amount of support payable by a parent, Texas Family Code Chapter 154 includes guidelines (“guideline child support”) together with other factors that might justify deviating from the guidelines and adjust the support amount as appropriate (“above-guideline child support”).5 Consider a fictional Mr. Jones, who was divorced from his wife several years ago and had not been back to court since the date of his divorce. The couple’s property had been divided, child support had been allocated and he and his wife were done.

According to his lawyer, he had received a generous child support award to assist him with their two children, ages ten and fifteen.

1. The Divorce At the time of the divorce, Mr. Jones earned considerably less than the former Mrs. Jones. Mr. Jones was awarded custody and above-guideline child support.

Mr. and Mrs. Jones enjoyed a dysfunctionally functional marriage until the sudden success of Mrs. Jones’s entrepreneurial venture, the Sit’N’Soak day care/day spa franchise. At first, the extra income was welcomed, because it allowed the couple to pay off their debts. Their older child, Bobby, was able to attend a special day care for his autism, regularly see a psy-

chiatrist and get medication, have speech and social therapy, and later attend a private extended-year school with private tutors. Their younger child, Sarah, could attend private school, keep up her piano lessons, and pursue her love of robotics.

At the time of the parties’ divorce, the children’s expenses alone were more than $6,000 a month, but Mr. and Mrs. Jones were glad that they could finally provide unique educational experiences for their children. As Mrs. Jones’s business became more successful, requiring more of her time and attention, Mr. Jones was able to quit his job as an elementary school teacher to take care of the family’s domestic and childcare needs and to assist Mrs. Jones with her business.

After several years, circumstances began to change. Mrs. Jones started spending more time away from home, not only on business trips to kick start new franchise locations outside the state, but also at the office when she was in town. Later, the couple began to argue about how to spend or invest her income. Mr. Jones had invested in the Buddy Animal Shelter, which Bobby took a special interest in, but it was losing money. Mrs. Jones had invested in real estate, which Mr. Jones thought was too expensive and unnecessarily ostentatious, even for their relative success. They fought, became distant and ceased being intimate.

After another six months, Mrs. Jones sued Mr. Jones for divorce and custody of the children. The Sit’N’Soak franchise was booming in Florida, and she wanted to relocate and take the children with her. The judge was unwilling to allow the children to relocate to Florida and awarded Mr. Jones custody, child support and a disproportionate division of the property.

In determining the amount of child support, the court considered the income level of the parents and the proven needs of the children, pursuant to Section 154.126.6 The “proven needs” are more than the bare necessities of life, are not determined by the parents’ ability to pay and do not necessarily correspond to the family’s previous lifestyle.7 Ultimately, the court con-

sidered the best interests of the children.8 Utilizing the statutory guidelines of Sections 154.123 (standard cases)9 and 154.304 (disability cases),10 the court considered: a. The ability of Mr. Jones to contribute to the support of his children; b. The financial resources available to Mr. Jones as a teacher; c. The financial resources of Mrs. Jones as a successful entrepreneur; d. Negative cash flow of Mr. Jones in the Buddy Animal Shelter; e. The pending sale of the real estate investments; f. Bobby’s present and future psychological treatment needs; g. Sarah’s robotics supplies and future school enrollment; h. The needs of the children in living at the current residence; i. The amount of possession time by each parent; and j. The travel costs of Mrs. Jones to and from Florida to visit the children.

During the trial, Mrs. Jones’s attorney argued that any above-guideline award would inappropriately bolster the lifestyle of Mr. Jones, be a distribution of Ms. Jones’s separate property estate and interfere with her right as a parent to determine the appropriate level of support for her children.

In response, Mr. Jones separated his living expenses from those of the children and established the needs of the children. Also, because the children’s activities had been consistent for over a year and Mrs. Jones’s concern about spoiling the children was sudden and new, the court did not find her argument persuasive. The stability of the children’s activities was the deciding factor for the court, which held for Mr. Jones and adopted his proposed finding of child support.11 Upon presentation of the parties’ tax returns and additional evidence of Mrs. Jones’s entrepreneurial success by Mr. Jones, the court found that Mrs. Jones’s net resources were $25,000 per month.

According to Section 154.062(b)-(c), “resources” include most income other than

return of principal or capital, accounts receivable, benefits paid per the Temporary Assistance for Needy Families program or other public assistance program and payments for foster care of a child.12 According to Section 154.062(d), “net resources” are resources less social security, federal and state taxes, union dues, cost of health insurance and medical support for the obligor’s child, if court ordered; and if the obligor does not pay social security taxes, nondiscretionary retirement plan contributions.13 The court first determined that the guideline child support was $2,137.50 by applying 25 percent to the first $8,550 of Mrs. Jones’s net resources under Section 154.125(b).14 However, Mr. Jones’s attorney argued, and the court found, that the demonstrated financial needs of the children were more than the guideline child support amount, based on their needs and activities. The court then allocated the remaining obligation between both parents pursuant to Section 154.126(b).15 Mrs. Jones’s portion of that additional obligation is considered above-guideline child support. The total child support ordered payable by Mrs. Jones to Mr. Jones was $4,500 per month.

2. The Bankruptcy Initially, Mrs. Jones actually made child support payments substantially in excess of the awarded child support amount, but then her business partner in the Sit’N’Soak franchise was found to be embezzling money. This led to a series of lawsuits against Sit’N’Soak and Mrs. Jones, leaving her with nothing. She filed for bankruptcy.

For bankruptcy purposes, child support payments are considered a “domestic support obligation” that are not dischargeable, meaning the child support obligation will survive the bankruptcy and remain a liability of the debtor. Yet, child support payments can be challenged in bankruptcy court—and Mrs. Jones’s were.

The trustee assigned to Mrs. Jones’s bankruptcy case, Mr. Warren, was suspicious of awards outside of guidelines.

Because an above-guideline child support was awarded, Section 154.126 did not thehoustonlawyer.com

March/April 2014

11

require the court to record calculations in the findings,16 and the parties had not requested any findings. So, Mr. Warren could look only to the findings of the net resources of each parent, the percentage applied to Mrs. Jones’s net resources and the reason for deviating from the guidelines under Section 154.130.17 Mr. Warren argued that these were not child support payments, but a disguise for community property payments to the other spouse. Having read in the news

about the collapse of the Sit’N’Soak franchise and the embezzlement scandal, he suspected that the value of the real estate investments had been misrepresented in the divorce.

A bankruptcy court may look beyond the language of the decree to determine if the obligation is really for support of the child or spouse. If it is in reality a compensation of the spouse’s community estate, it is dischargeable via bankruptcy.18 For example, in In re Rhodes, a lump sum pay-

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ment of $5,000 one year after a divorce was held to be compensation for the remainder of the wife’s share of the house, not intended for the welfare of the children.19 In Mrs. Jones’s bankruptcy case, the court found that the payments to Mr. Jones were appropriate and were calculated to support the children. Also, during the bankruptcy case, the real estate investments were appraised by a court-appointed auditor, which put Mr. Warren’s suspicions of their actual value to rest.

Mr. Warren’s next question was how Mrs. Jones’s prior excess child support payments should be credited during bankruptcy.

Either they could be treated as a gift for the children, which would mean no credit would be given for those payments in the bankruptcy, or they could be treated as a credit toward future child support payments. To decide, the court would need to evaluate Mrs. Jones’s intent in making the payments.

Fortunately for Mrs. Jones, her attorney had specifically included language in the decree that any excess payments would first be treated as a credit against later payments.20 Also, while Section 154.012 requires that a person receiving child support return any payments received that exceed the amount of support ordered, the requirement does not arise until the entire child support obligation is terminated.21 Because Bobby and Sarah were unemancipated minors and had not yet graduated from high school, Mr. Jones was not required to return any of the excess payments.

3. The Modification Proceeding Following the bankruptcy, Mrs. Jones filed a request to modify child support with the family court. Her attorney argued that she was destitute and that Mr. Jones now earned more than she did. Therefore, the court should allocate more of the above-guideline support to Mr. Jones and decrease her child-support obligation.

Mr. Jones filed a counter-suit and also sought modification of his child support award. His son, Bobby, had regressed and

required more treatment, while his daughter, Sarah, was attending more and more advanced robotics camps. His attorney would have to prove that each of these treatment facilities or camps had special benefits such as class size, curriculum or benefit to future college placement,22 and he was confident that he would be able to do so.

According to Section 156.401, the parties would need to prove either a material and substantial change or that both (a) three years had passed since the initial order and (b) the award differed by either 20 percent or $100 from what would be awarded if the case were brought before the court today.23 To determine whether there have been material or substantial changes in circumstances, the trial court may consider the child support guidelines under Section 156.402 or any other factors it deems relevant.24 However, Section 156.403-05 specifically prevents courts from considering any increase in the needs, standard of living or lifestyle of the supported spouse, any history of voluntarily provided support and resources of new spouses.25 Except for those items, the family’s present circumstances will be compared to the original circumstances when the decree was rendered.26 As it so happened, the former Mrs. Jones had recently married a very successful venture capitalist worth billions of dollars and her new standard of living far exceeded the standard she had enjoyed during her marriage to Mr. Jones—but this could not be considered in the modification. In turn, Mr. Jones’s attorney would argue that, though the former Mrs. Jones was living off of the tycoon, she could be earning more.27 Under Section 154.066, the court could find that the former Mrs. Jones was intentionally unemployed or underemployed and determine child support based on her earning potential.28 To prevail, Mr. Jones’s attorney would have to prove that the former Mrs. Jones’s actual income is significantly less than her earning potential and that she has intentionally chosen to be unemployed or underemployed.

Mr. Jones’s attorney was not confident that he would receive the requested modification, particularly considering the former Mrs. Jones’s financial misfortune. In other cases, courts have considered any of the following reasons sufficient to justify unemployment or underemployment: spend more time with children, live close to children in order to attend their events and be more involved in their lives, provide the children with better health benefits, start a new business, gain further ed-

ucation, become a public servant, address health needs or pursue other employment or improve quality of life.29 The fictional story of Mr. Jones and the former Mrs. Jones illustrates the myriad legal issues that must be considered and litigated for the award and revision of child support.

Conclusion While guideline child support is appropriate in many circumstances, it is not ap-

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propriate in all circumstances. Regardless of whether the circumstances warrant deviating from the guidelines and adjusting the support amount as appropriate, counsel for both parents should understand the law, how it applies to their cases, and advise their clients accordingly.

Aaron M. Reimer is an associate attorney at Jenkins & Kamin, LLP, a boutique family law firm, where he handles complex property issues in divorce litigation and preand post-marital agreements, as well as contested custody litigation.

Benjamin Ritz is a law clerk at Jenkins & Kamin, LLP, and is currently a student at South Texas College of Law. Endnotes 1. TEX. FAM. CODE ANN. § 151.001(b) (West 2006).

2. TEX. FAM. CODE ANN. § 151.001(b) (West 2006).

3. TEX. FAM. CODE ANN. § 154.003 (West 2006).

4. TEX. FAM. CODE ANN. § 154.008 (West 2006).

5. See generally Diana S. Friedman, Barbara D. Nunneley & Jane H. Mapes, Obtaining and Modifying Above Guidelines Child Support, STATE BAR OF TEX. 39th Annual Marriage Dissolution Inst., Ch. 19 (2013).

6. TEX. FAM. CODE ANN. § 154.126 (West 2006).

7. Scott v. Younts, 926 S.W.2d 415, 420 (Tex. App.—Corpus Christi 1996, writ denied).

8. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 n.3 (Tex. 1993); See In re Grossnickle, 115 S.W.3d 238, 248 (Tex. App.—Texarkana 2003, no pet.) (noting that trial courts have broad discretion as to what constitutes extravagance.); McCain v. McCain, 980 S.W.2d 800, 802 (Tex. App.—Fort Worth 1998, no pet.) (discussing that trial courts are accorded broad discretion in determining whether a movant has met the burden of proving the needs of the child.).

9. TEX. FAM. CODE ANN. § 154.123 (West 2006).

10. TEX. FAM. CODE ANN. § 154.304 (West 2006).

11. Kathleen A. Hogan, Child Support in High Income Cases, 17 J. AM. ACAD. MATRIM. LAW. 349, 355 (2001) (“Such a consideration may carry significant weight in the event that the parties’ spending habits during the marriage reflected expenditure patterns that were modest in comparison with the available income. However, a concern that the child not be ‘spoiled’ by lavish spending on his or her behalf is less likely to be credible if the parent’s frugality is newly acquired.”).

12. TEX. FAM. CODE ANN. § 154.062(b)-(c) (West 2006).

13. TEX. FAM. CODE ANN. § 154.062(d) (West 2006).

14. TEX. FAM. CODE ANN. § 154.125(b) (West 2006).

15. Id. 16. TEX. FAM. CODE ANN. § 154.126 (West 2006); Zajac v. Penkava, 924 S.W.2d 405, 410 (Tex. App.—San Antonio 1996, no writ).

17. TEX. FAM. CODE ANN. § 154.130 (West 2006).

18. In re Rhodes, 44 B.R. 79, 81 (Bankr. D.N.M. 1984).

19. Id. 20. Bruce D. Bain, Child Support: Statutory and Contractual, State Bar of Tex. 35th Annual Marriage Dissolution Inst., Ch. 10, 3 (2012).

21. TEX. FAM. CODE ANN. § 154.012 (West 2006).

22. Bain, supra note 21, at 3; See Also Kendall v. Kendall, 340 S.W.3d 483, 512–15 (Tex. App.—Houston [1st Dist.]

2011, no pet.) (discussing needs of private-school tuition after fund exhaustion).

23. TEX. FAM. CODE ANN. § 156.401 (West 2006); Rumscheidt v. Rumscheidt, 362 S.W.3d 661, 666 (Tex. App.— Houston [14th Dist.] 2011, no pet.).

24. TEX. FAM. CODE ANN. § 156.402 (West 2006); Friermood v. Friermood, 25 S.W.3d 758, 760 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (discussing that court’s consideration of the child support guidelines in a modification proceeding is discretionary, not mandatory); see also Rooney v. Rooney, 14-10-01007-CV, 2011 WL 3684618, at *3 (Tex. App.—Houston [14th Dist.] Aug. 23, 2011, no pet.) (noting that trial court inquiry is “not guided by rigid or definite rules and is fact-specific”).

25. TEX. FAM. CODE ANN. § 156.403–05 (West 2006).

26. Holley v. Holley, 864 S.W.2d 703, 705–06 (Tex. App.— Houston [1st Dist.] 1993, writ denied).

27. Iliff v. Iliff, 339 S.W.3d 74, 81–82 (Tex. 2011).

28. TEX. FAM. CODE ANN. § 154.066 (West 2006); Iliff, 339 S.W.3d at 76.

29. Iliff, 339 S.W.3d at 76.

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By Sam M. (Trey) Yates, III

The Status I of Marriage Equality in the Aftermath of DOMA’s Demise

n the landmark case of United States v.

Windsor,1 which was decided on June 26, 2013, the U.S. Supreme Court struck down Section 3 of the federal Defense of Marriage Act (DOMA).2 This invalidated section defined a “marriage” as a “legal union between one man and one woman as husband and wife,” and a “spouse” as a “person of the opposite sex who is a husband or a wife,” for the purpose of determining the meaning of any federal law. Justice Kennedy, who wrote the majority opinion, observed the following about the statute: The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the states in the exercise of their sovereign power, was more than an incidental effect on the federal statute. It was its essence...

Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways... It prevents samesex married couples from obtaining government healthcare benefits they would otherwise receive. It deprives them of the Bankruptcy Code’s special protections for domestic-support obligations. It forces them to follow a complicated procedure to file their state and federal taxes jointly.

It prohibits them from being buried together in Veteran’s cemeteries...

What has been explained to this point should more than suffice to establish that the principal purpose and necessary effect of [DOMA] are to demean those persons who are in a lawful samesex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of liberty of the person protected by the Fifth Amendment of the Constitution.3

Currently, 17 states4 and Washington,

D.C., recognize same-sex marriages, and three states offer same-sex couples broad protections short of marriage.5 Over 38 percent of the U.S. population lives in states that either allow same-sex couples to marry or honor out-of-state same-sex marriages, and over 41 percent of the U.S. population lives in states with either marriage laws for same-sex couples or legal statuses, such as civil unions or domestic partnerships.6 In the states that do not recognize same-sex marriages, couples have challenged laws, including constitutional amendments, containing DOMA-type language. On December 20, 2013, in Kitcher v. Herbert, U.S. District Judge Robert Shelby considered Windsor and struck down Utah’s ban on same-sex marriage, observing that: The State of Utah has provided no evidence that opposite-sex marriage will be affected in any way by samesex marriage. In the absence of such evidence, the State’s unsupported fears and speculations are insufficient to justify the State’s refusal to dignify the family relationships of its gay and lesbian citizens. Moreover, the Constitution protects the Plaintiff’s fundamental rights, which include the right to marry and the right to have that marriage recognized by their government...

The Constitution therefore protects the choice of one’s partner for all citizens, regardless of their sexual identity.7 The Utah Attorney General requested a stay in that case from the U.S. Supreme Court, and, on January 6, 2014, Justice Sotomayor granted the stay pending final disposition of the appeal by the Tenth Circuit Court of Appeals.8 The Obama Administration later announced that the same-sex marriages performed in Utah after Judge Shelby’s decision and before the stay are considered legal under federal law, and that same-sex couples who married during that period will be eligible for all federal benefits.

On January 14, 2014, in Bishop v. United States, U.S. District Judge Terence C.

Kern struck down Oklahoma’s ban on same sex marriage, and permanently enjoined the enforcement of Part A of an Oklahoma constitutional amendment defining marriage as the union of one man and one woman because it precluded same-sex couples from receiving an Oklahoma marriage license and, therefore, violated the Fourteenth Amendment’s Equal Protection Clause.9 However, Judge Kern stayed the injunction pending final disposition of any appeal of his ruling to the Tenth Circuit Court of Appeals.10 After Windsor was decided, the federal government updated its policies by promulgating new federal tax guidelines recognizing same-sex marriages, even in states that ban such marriages, and extending federal benefits to some samesex couples. In that regard, on August 29, 2013, the U.S. Treasury and the Internal Revenue Service announced that all legal same-sex marriages are recognized as marriages for all federal tax purposes, no matter which state they call home. And, in a letter to Congress dated September 4, 2013, Attorney General Eric Holder stated that the Justice Department would not prohibit same-sex spouses of veterans from receiving military benefits if they live in a jurisdiction that recognizes their marriage.

In November 2013, the Texas National Guard announced that same-sex spouses could apply for military benefits at its state facilities instead of federal facilities.

According to Texas officials, the Texas National Guard previously could not process benefits for same-sex couples because the state’s constitution prohibited recognition of same-sex marriage. The Defense Department now provides federal personnel, funding and equipment to enroll the spouses, ensuring that no Texas National Guard members in state status will have to do the work.

A variety of individuals and entities have brought lawsuits across the country to implement the ruling in Windsor, especially in states known as “marriage prohibition” states. In Nevada, a peti-

tioner in a federal case unsuccessfully argued that the state’s constitutional ban on marriage equality violates the Equal Protection Clause of the U.S. Constitution, but the case is currently pending on appeal in the Ninth Circuit Court of Appeals.11 In Virginia, a pending federal class action lawsuit seeks freedom for all same-sex couples in the state to marry, and an end to the state’s refusal to recognize lawful same-sex marriages from other jurisdictions.12 In West Virginia, a federal lawsuit was filed on behalf of three same-sex couples, and the child of one of the couples, challenging the constitutionality of statutes that prevent same-sex couples from marrying and deny recognition of same-sex marriages lawfully entered into in other jurisdictions.13 Challenges have been made to similar constitutional provisions and laws in Texas, and there is an open question as to whether Texas courts have jurisdiction to grant divorces to same-sex Texas residents who were legally married to each other in another state. In that regard, on November 8, 2005, Article 1, Section 32, of the Texas Constitution, was amended to state that marriage is only allowed between one man and one woman.14 This amendment also forbids the state from recognizing out-of-state marriage relationships or domestic partnerships for same-sex couples. Texas Family Code Section 2.001’s prior use of the terminology “a man and a woman” for those seeking a marriage license effectively prohibited a county clerk from issuing a marriage license for “persons of the same sex.”15 In accordance with the constitutional amendment, Texas Family Code Section 6.204(c) currently provides that “[t]he state or an agency or political subdivision of the state may not give effect to a: (1) public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction; or (2) right or claim to any legal protection, benefit, or responsibility asserted as thehoustonlawyer.com

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17

a result of a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction.”16 While the Texas prohibition against recognition of same-sex marriages lawfully entered into in other states seems clear, the resulting lack of divorce options for same-sex Texas residents who were lawfully married to each other in another state has become a pressing issue for Texas family law judges and attorneys.

On November 5, 2013, the Texas Supreme Court heard oral arguments in three consolidated cases on the samesex divorce issue.17 The two essential questions presented in those cases are: (1) whether Texas Family Code Section 6.204 strips district courts of jurisdiction to hear a petition for divorce involving a same-sex couple who was legally married in another state, and (2) whether Texas Family Code Section 6.204, if construed to prevent a same-sex couple who was legally married in another state from obtaining a divorce in Texas, violates the U.S. Constitution. Additional questions raised in these cases are whether the state may intervene to contest the trial court’s jurisdiction to grant the divorce and, if not, whether the state can challenge the trial court’s jurisdiction to issue such a judgment in a mandamus proceeding.

Additionally, on February 26, 2014, in DeLeon v. Perry,18 U.S. District Judge Or-

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lando Garcia, of San Antonio, issued an injunction barring Texas from enforcing Texas Family Code Sections 2.001 and 6.204, as well as Article 1, Section 32, of the Texas Constitution. The court held that the current marriage laws of Texas deny same-sex couples the right to marry and, by doing so, demean their dignity for no legitimate reason.19 Therefore, Article 1, Section 32, of the Texas Constitution and the corresponding provisions of the Texas Family Code were unconstitutional.20 However, consistent with the stays in Utah and Oklahoma, Judge Garcia stayed the ruling while Texas officials appeal to the Fifth Circuit Court of Appeals.21 As Justice Kennedy wrote in the majority opinion in Windsor, “The responsibility of the states for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people.”22 Whether Texas will redefine marriage within its borders or grant divorces to same-sex couples who lawfully married elsewhere is unclear. What is certain is that additional changes and challenges in this area of the law are surely on the horizon.

Sam M. (Trey) Yates, III is a board certified family law trial attorney at The Law

Office of Sam M. (Trey) Yates, III, P.C., a boutique family law firm, with a focus in complex family law matters, probate/guardianship litigation, and estate planning.

Endnotes 1.

2.

3.

4.

United States v. Windsor, 133 S. Ct. 2675 (2013).

1 U.S.C. § 7 (2006).

See Windsor, 133 S. Ct. at 2693–95 (emphasis added).

Those 17 states are California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, Maine, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont and Washington.

5. Colorado allows civil unions, while Oregon and Nevada offer domestic partnerships, and Wisconsin recognizes a more limited domestic partnership.

6. Freedom to Marry, available at http://www.freedomto marry.org/states/ (last visited Feb. 26, 2014).

7. Kitchen v. Herbert, 2:13-CV-217, 2013 WL 6697874, at *29 (D. Utah Dec. 20, 2013).

8. Herbert v. Kitchen, 134 S. Ct. 893 (2014).

9. Bishop v. United States ex rel. Holder, 2014 U.S. Dist.

LEXIS 4374, at *121 (N.D. Okla. Jan. 14, 2014).

10. Id. at *121–22.

11. Sevcik v. Sandoval, 911 F. Supp. 2d 996 (D. Nev. 2012).

12. Harris v. McDonnell, 5:13CV00077, 2013 WL 5720355 (W.D. Va. Oct. 18, 2013).

13. McGee v. Cole, CIV. 3:13-24068, 2014 U.S. Dist. LEXIS 10864 (S.D. W.Va. Jan. 29, 2014).

14. TEX. CONST. art. I, § 32.

15. TEX. FAM. CODE ANN. § 2.001 (West 2006).

16. TEX. FAM. CODE ANN. § 6.204(c) (West 2006).

17. In re State, No. 11-0222, 2013 Tex. LEXIS 610 (Aug. 23, 2013); State v. Naylor, 330 S.W.3d 434 (Tex. App.—Austin 2011, pet. filed); In re Marriage of J.B. & H.B., 326 S.W.3d 654 (Tex. App.—Dallas 2010, pet. filed).

18. DeLeon v. Perry, No. SA-13-CA-00982-OLG, 2014 WL 715741, at *48 (W.D. Tex. Feb. 26, 2014) (designated for publication).

19. Id. 20. Id. 21. Id. 22. Windsor, 133 S. Ct. at 2693.

By Kelly L. Fritsch

Immigration I Considerations for the Family Law Practitioner

mmigration issues are increasingly arising in family law cases. When representing a client in a family law matter where immigration status is at issue, it is important to determine how the immigration status was obtained. For example, a noncitizen’s ability to remain in the United States may be at risk as a result of a divorce filing. In contrast, documents filed as part of the immigration process may require a citizen to pay support to a noncitizen in an amount over and above that required by the Texas Family Code. Although advice should be sought from an immigration expert when necessary, the family law practitioner’s understanding of the impact of immigration law on a prospective case will result in more comprehensive representation.

I. Marriage When a noncitizen applies for citizenship based upon marriage to a United States citizen, the noncitizen must establish that his or her marriage is valid.1 In general, a marriage certificate is prima facie evidence that the marriage was properly and legally performed.2 A marriage is valid for immigration purposes in cases where the marriage is valid under the law of the jurisdiction in which it is performed, and the law of the jurisdiction does not conflict with federal laws on marriage or the laws of the state of the spouse’s domicile.3 In Texas, a man and a woman desiring to enter into a ceremonial marriage must obtain a marriage license from the county clerk of any county of this state.4 Each person applying for a marriage license must: (1) appear before the county clerk; (2) submit proof of identity and age as provided

by Section 2.005(b) of the Texas Family Code; (3) provide applicable information in spaces provided in the application form; (4) mark appropriate boxes on the application form; and (5) take the oath printed on the application form and

sign the form before the county clerk.5 The U.S. Citizenship and Immigration Service (USCIS) does not recognize the following relationships as marriages or intended marriages: • relationships involving bigamy, polygamy or incest; • relationships where one party is not present during the marriage ceremony (a/k/a proxy marriages) unless the marriage has been consummated; or • relationships entered into for purposes of evading U.S. immigration laws.6 USCIS also recognizes common law marriage. In order for a common law marriage to be valid for immigration purposes, the parties must meet the qualifications for common law marriage for the jurisdiction in which they live.7 For example, in Texas, a common law marriage may be proved by evidence showing that the parties to it either: (1) signed a declaration of marriage; or (2) agreed to be married, subsequently lived together in Texas as husband and wife, and represented to others that they were married.8 USCIS recognizes common law marriages for purposes of naturalization if the marriage was valid and recognized by the state in which the marriage was established.9 This applies even if the naturalization application is filed in a jurisdiction that does not recognize or has never recognized the principle of common law marriage.10 II. Impact of Divorce or Separation on the Noncitizen Spouse It is important for the noncitizen spouse to understand the impact that a divorce or separation can have on his or her immigration status. A noncitizen is no longer the spouse of a U.S. citizen after a divorce or annulment is granted and, therefore, is not eligible to become a citizen as the spouse of a U.S. citizen if a divorce or annulment is granted before or after the naturalization application is filed.11 USCIS determines the validity

of a divorce by examining whether the state or country that granted the divorce properly assumed jurisdiction over the divorce proceeding.12 USCIS also determines whether the parties followed the proper legal formalities required by the state or country in which the divorce was obtained to determine if the divorce is legally binding.13 There are two ways a noncitizen can obtain permanent resident status through a spouse. The first way is by qualifying as the direct beneficiary of an immigration petition made by a sponsoring citizen spouse.14 The second way is by qualifying for permanent resident status through a petition where the noncitizen’s spouse is permitted to include the noncitizen on his or her immigration petition as a derivative beneficiary.15 In both instances, the noncitizen’s immigration petition is predicated on the basis of a valid marriage. In general, if the marriage is terminated by divorce before permanent resident status is granted, the noncitizen spouse will not be eligible for permanent resident status through that relationship.16 As a result, lack of eligibility will likely result in the noncitizen’s deportation.

Although Texas does not recognize the concept of “legal separation,” in the event a prospective divorce client who has not yet attained naturalization is considering living apart from his or her spouse, such separation may also impact the noncitizen’s immigration status. A “legal separation” is a formal process by which the rights of a married couple are

“

altered by a judicial decree that does not end the marital relationship.17 In most cases, after a legal separation, the noncitizen will no longer be actually residing with his or her U.S. citizen spouse and, therefore, will not be living in marital union with the U.S. citizen spouse. As a result, such a separation may cause the noncitizen’s naturalization to fail because of the requirement that the spouses must be living in a marital union for a requisite period of time.18

When

III. Immigration Support A United States citizen who petitions for a noncitizen to gain residency in the United States must sign an affidavit of support that demonstrates that the citizen has adequate income or assets to support the noncitizen immigrant and accepts legal responsibility for financially supporting the noncitizen.19 Moreover, the affidavit requires the petitioning party to provide financial support at a level no less than 125 percent of the federal poverty income level during the period of enforceability.20 If support falls below this level, the petitioning party must reimburse the government for any support that it provides to the noncitizen immigrant.21 Once this process is complete, the immigrant will apply for the immigrant visa. If a divorce occurs, this support obligation should be considered in conjunction with spousal support, and, if children are involved in the naturalization process, child support. The liability of the sponsor executing the affidavit of support terminates only when the spon-

representing a client in a

family law matter

where immigration status is at issue, it is important to determine how the

immigration status was

”

obtained.

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21

sored immigrant becomes a U.S. citizen, earns or is credited with a total of 40 qualifying quarters, as defined by Social Security law, dies, loses or abandons LPR status and departs from the United States or is ordered removed but readjusts status in immigration proceedings through submission of a new I-864.22 In August 2013, an affidavit of support executed by a United States citizen as part of an immigration proceeding formed the basis of a post-divorce breach of contract

lawsuit filed in a federal court in Texas.23 In that case, four years after their divorce was granted, the plaintiff ex-wife, who was originally from Mexico, sued the defendant, a U.S. citizen, for breach of contract claiming that an affidavit of support he executed on her behalf in an immigration proceeding before they were married was a contract that obligated him to support her to the extent of 125 percent of the federal poverty level regardless of the terms of their divorce decree

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or the fact that she remarried and was divorced after their marriage ended.24 The defendant’s counsel and other experts say the case is unusual because affidavit of support clauses are rarely litigated.25 The defendant’s counsel argued, among other things, that his client’s signature on the affidavit of support was never meant to obligate him to indefinitely support his ex-wife, who failed to gain employment or become naturalized.26 Regardless of the outcome of that case, other litigants may argue that a citizen-spouse is contractually obligated to support the noncitizen pursuant to an affidavit of support in an attempt to overcome the spousal support limitations set forth in Chapter 8 of the Texas Family Code.

IV. Same-Sex Spouse In July 2013, Secretary of Homeland Security Janet Napolitano issued the following statement regarding same-sex spouses: After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an oppositesex spouse.27 Because DOMA was found unconstitutional, same-sex spouses of U.S. citizens, along with their minor children, are now eligible for the same immigration benefits as opposite-sex spouses. Consular officers at U.S. Embassies and Consulates will adjudicate their immigrant visa applications upon receipt of an approved I-130 or I-140 petition from USCIS.28 As immigration benefits are extended to same-sex couples, the immigration

status of a noncitizen same-sex spouse will, as in the case of a noncitizen heterosexual spouse, be at risk if the marriage is terminated by a decree of divorce or annulment.

V. Conclusion An understanding of basic immigration procedures and policies, including knowledge of the impact that divorce, separation or annulment may have on citizenship, will allow the family law practitioner to provide more comprehensive representation to a broader spectrum of clientele. When more complex immigration issues arise in the context of a divorce, counsel should join forces with an immigration specialist to insure that his or her client’s interests are adequately protected.

Kelly L. Fritsch is a partner at Jacob, Fritsch, and Ramos, P.C., a firm specializing in all aspects of family law including divorce, child custody, termination, adoption, guardianship and mediation.

Endnotes 1.

2.

3.

4.

5.

See 8 C.F.R. 319.1(b)(1). www.uscis.gov.

Id. TEX. FAM. CODE ANN. § 2.001 (West 2006).

TEX. FAM. CODE ANN. § 2.002 (West Supp.

2013).

6. www.uscis.gov.

7. Id. 8. TEX. FAM. CODE ANN. § 2.401 (West Supp.

2013).

9. The date a common law marriage commences is determined by laws of the relevant jurisdiction.

10. www.uscis.gov.

11. See 8 C.F.R. 319.1(b)(2)(i) & 8 C.F.R. 319.2(c).

12. See Matter of Hussein, 15 I&N Dec. 736 (BIA 1976).

13. See Matter of Luna, 18 I&N Dec. 385 (BIA 1983).

14. www.uscis.gov.

15. Id. 16. Id. 17. See, e.g., Nehme v. INS, 252 F.3d 415, 422-27 (5th Cir. 2001) (discussing legal separation for purpose of derivation of citizenship).

18. See 8 C.F.R. 319.1(b)(2)(ii)(A).

19. 8 C.F.R. 213.a.2(a)(1); USCIS Form I-864.

20. 8 C.F.R. 213.a.2(c)(2)(i); USCIS Form I-864.

21. 8 C.F.R. 213a.2(c)(2)(i)(C)(2).

22. 8 C.F.R. 213a.2(e)(2)(i.).

23. FOX News Latino, Unique Texas divorce case highlights little-known immigration clause, Aug. 13, 2013.

24. Id. 25. Id. 26. Id. 27. www.uscis.gov/family/same-sex-marriages.

28. See United States v. Windsor, 133 S. Ct. 2675 ( 2013).

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By Patrick W. Upton

‘Late to W the Game Standing’ in CPS Cases for Relatives

hen a relative, who is ready, willing and able to care for a child under the temporary custody of Department of Family and Protective Services (DFPS) is disregarded in favor of continuing foster care it creates a very emotional problem for the extended family.1 This scenario occurs when relatives seeking to intervene at the later stages of an existing Child Protective Services (CPS) case are precluded from doing so because of a lack of standing. Typically, in the early stages of a CPS case, relatives cannot be located and notified prior to and after a child is taken into the care of DFPS. Additionally, current standing provisions in the Texas Family Code can serve as barriers for a “late to the game” relative seeking to intervene. As a result of these and other obstacles, arguing for standing on behalf of a “late to the game” relative can prove both frustrating and futile. This article addresses the possible scenarios in which the “late to the game” relative predicament emerges, explains why it is problematic and proposes solutions for removing the obstacles that “late to the game” relatives face when intervening in an existing lawsuit.

In a typical CPS case, family reunification is the primary goal. Ideally, children should be reunified with their parents.

However, when a parent cannot or does not make an effort toward family reunification, secondary goals are often proposed by CPS to the court. Secondary goals include relative conservatorship, relative adoption and non-relative adoption. Because secondary goals often run concurrently with the primary goal, CPS will look to other family members when reunification is not possible. The Family Code provides that DFPS must develop a program to place children with a relative or other designated caregivers to promote continuity and stability for children.2 State law, federal law, CPS policies

and procedures and the Supreme Court of Texas Permanent Judicial Commission for Children, Youth, and Families all underscore the importance of keeping families together. Kinship caregivers, a term that includes relatives and other designated caregivers who live outside of the child’s home, are given priority for placement.3 Accordingly, CPS should only place a child in foster care once all kinship options have been ruled out.4 The “late to the game” relative predicament occurs soon after the child is removed and placed in the care of DFPS. Upon removal, a series of statutory duties are imposed on CPS to locate and notify relatives. According to its own policies, CPS has 30 days after requesting courtordered removal to exercise due diligence in notifying and locating all adult relatives of a child who are related within the third degree of consanguinity (i.e., grandparents, great-grandparents, aunts, uncles, nieces, nephews and siblings).5 Immediately after initiating an investigation, CPS is statutorily required to provide parents with a child resources placement form asking the parent to identify relative caregivers or other designated caregivers.6 The statute requires CPS to continue looking until it has identified a relative or other designated individual.7 Despite these requirements, CPS may nonetheless fail to locate relatives or others in a timely manner. It is important to realize that substance abuse, mental illness, criminal conduct and incarceration are elements present in the vast majority of CPS cases. When parents are struggling with these issues, additional problems in relative placement arise. For example, the whereabouts of a parent may be unknown, parents refuse to cooperate with CPS or parents have no communication with family members. As a result, the task of locating and notifying relatives may be challenging. Moreover, even if a relative learns that the child is in the care of CPS through other channels, he or she may have difficulty accessing information on the case because of the confidentiality imposed upon such cases. When no relative

or other designated placement has been located, a child will be placed in foster care.

After a child has been placed in foster care and resided in the same foster home for six months, the foster parents have the right to intervene in the lawsuit and protect any potential “adoption” interest that they may have in the event that the court terminates the rights of the natural parents. A relative who is located after foster parent intervention faces several obstacles. Many family courts have “no move” orders in place that limit the opportunity for immediate placement with a “late to the game” relative until after a home study and a criminal background check on that relative have been completed and approved. Those investigations can take several months to complete.

During this period, the relative will be placed at a further disadvantage because the child will remain in foster care as the 12- and 18-month permanency deadlines approach.8 Even after the home study and criminal background check on the relative are approved, the child’s placement with the relative is not automatic because of standing issues in CPS cases.

Standing is not required for a court to appoint an individual as managing conservator of the child after parental rights have been terminated.9 Standing is important, though, because it allows those with a justiciable interest to become parties to the suit and to present their positions directly to the court without relying on other parties to voice their positions. Stand-

“

ing to intervene is particularly important where the possibility of reunification with parents is unlikely and the child has spent the majority of time after removal in one placement. If CPS deems a placement unsuitable at any point, and the caregiver has not intervened, a child could be removed and the caregiver left with no way to defend his or her interests.10 Section 102.004(a) of the Texas Family Code gives specified relatives standing to file and maintain an original suit affecting the parent child relationship.11 This statute is relevant in the case of an intervention because an individual who has original standing also has standing to intervene.12 The statute allows relatives of the child related within the third degree of consanguinity to file an original suit requesting managing conservatorship. But it only confers standing if the petitioning relative can prove that the child’s present circumstances would impair the child’s physical health or emotional development or if the parents consent to the suit. The statute is, therefore, unlikely to confer standing to a “late to the game” relative because it would be difficult to argue that the child’s present circumstances would cause significant impairment while the child is in the custody of CPS. At the time the relative seeks to intervene, CPS has already removed the child from the home and the deficiencies in care have already been remedied. Moreover, if the parents of the child are not cooperating with CPS, or are otherwise unavailable,

In a typical CPS case, family reunification is the primary goal.

Ideally, children should be reunified with their parents.

However, when a parent cannot or does not make an effort toward family reunification, secondary goals are often proposed by CPS to the court.

”

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it may be impractical to rely on their consent.

Even if a relative or foster parent does not have original standing to file suit, he or she may have standing to intervene in an existing lawsuit under Section 102.004(b).13 This statute permits intervention by a person who can show “substantial past contact” with the child.14 The party seeking to intervene must also prove that appointment of the parents as managing conservator or both parents as joint managing conservators would significantly impair the child’s physical health or emotional development.15 The statute does not distinguish relatives, other than grandparents, from other individuals with “substantial past contact,” including foster parents. The term “substantial past contact” is not statutorily defined, and courts have been hesitant to set standards for conduct that rises to the level of “substantial past contact.” The Sixth Court of Appeals explained that “[t]he existence of ‘substantial past contact’ is an inherently fact intensive inquiry for which it will be

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difficult, if not impossible, to formulate a concise standard or comprehensive factors.”16 In the case of the “late to the game relative,” it would be difficult to argue for standing under this provision. As previously mentioned, many parents in these cases have engaged in destructive and unhealthy behaviors. Consequently, a relative who is able to provide a safe and stable environment for the child, and is otherwise a law abiding citizen and contributing member of society, is likely to clash with a parent exhibiting such levels of dysfunction. As a result, the relationship between the parent and relative is often strained to varying degrees. Depending on the age of the child, a strained relationship with the parent likely equals a strained relationship with the child.

Furthermore, when a relative has been disconnected from the parents and the child during the period leading up to removal, it may be especially difficult to prove “substantial past contact.” A foster parent who has already intervened will argue that the relative would have taken

steps to prevent removal of the child or at least would have been aware of CPS involvement if a relationship between the relative and child actually existed. Additionally a foster parent will call into question the relative’s lack of interest in the whereabouts and welfare of the child, and the relative’s initial failure to make himself or herself known to the court.

Despite these arguments, a determination of “substantial past contact” would ultimately be a fact-intensive inquiry for the court that would include the consideration of factors such as the child’s age at the time of the suit and the nature and duration of the past contact. The trial court is permitted to consider whether the petition in intervention would jeopardize the prompt resolution of a termination hearing.17 The strongest case for “substantial past contact” would be one in which the child is old enough at the time of the lawsuit to have had a relationship the relative, and the period of disconnect between the relatives began once a relationship between the relative and child had already

been firmly established.

The relaxed standing rule can be used as a “backdoor” for a foster parent who would not meet the standing requirements of Section 102.003(a)(12), which only confers standing when the child has been placed in the foster parent’s home for at least one year ending no more than 90 days before the petition is filed.18 In fact, in Mendez v. Brewer, which preceded the Legislature’s enactment of Section 102.004(b), the Texas Supreme Court held that foster parents lacked standing to intervene in a termination suit because their interest was contingent on its outcome, and was thus too weak to be justiciable.19 Now, however, a party who could not file an original suit under the Mendez “justiciable interest” standard may intervene in a suit filed by way of the statutory “substantial past contact” standard.20 Nevertheless, a strong argument can be made that the child’s limited time in foster care does not qualify as “substantial past contact” at the time a foster parent attempts to intervene. Similarly, any past contact between the child and a foster parent is not based on a naturally occurring relationship but is manufactured only as a result of the inability to locate relatives and designated caregivers. A foster parent cannot establish “substantial past contact” when any contact with the child up to the point of intervention was merely as an agent of CPS. Despite the merits of this argument, it will likely go unheard because a court is not permitted to strike an intervention unless a party to the suit has filed a written motion to strike.21 At the stage that a foster parent seeks to intervene, the foster placement will appear to be the only permanent option for the child when the parents are uncooperative, unavailable and reunification is not possible. Presuming that the parents are not available to file a motion to strike, CPS and the attorney for the child will have no reason to file a motion to strike the intervention and the foster parent will be welcomed as a party to the suit. In contrast, at the time a relative attempts to intervene, he or she will be met with strong opposi-

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tion from the foster parent. With interests diametrically opposed to those of the “late to the game” relative, a foster parent will not hesitate to file a motion to strike.

The simplest way to address the standing dilemma would be to amend the statute to allow relatives to intervene without having to demonstrate “substantial past contact.” This would eliminate the burden on “late to the game” relatives to prove “substantial past contact” when none exists due to strained familial relationships. Alternatively, the statute could be amended to specifically exempt a foster parent from acquiring standing under Section 102.004(b), and the Mendez “justiciable interest” standard could be reinstated. A foster parent would then be forced to rely on Section 102.003(a)(12) and wait at least one year, ending no more than 90 days before the petition is filed.

The current reality is that in many instances a “late to the game” relative can effectively intervene only if he or she can do so before a foster parent has intervened. If a foster parent is forced to wait a

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year before filing, the main impediment to the intervention of the “late to the game” relative would be removed. Furthermore, requiring a foster parent to wait one year will provide CPS with additional time to locate relatives before the foster parent can become a party to the suit.

Finally, allowing a foster parent to intervene prematurely is unnecessary in the majority of CPS cases where CPS has qualified the foster parent as a “foster parent to adopt.” These designated foster parents are the preferred choice for adoption regardless of whether they are parties to the suit. The benefit of allowing a relative to intervene without opposition will far outweigh any negative effects that will result from delaying the point at which a foster parent may intervene.

The Texas Family Code, as it stands, creates many obstacles for a “late to the game” relative. The current standing provisions can effectively place a foster parent in a position superior to that of a relative for purposes of an intervention. Changes to the current statutory framework will

be necessary as more “late to the game” relatives attempt to intervene in existing lawsuits.

Patrick W. Upton began his practice as an ad litem attorney appointed on CPS cases, and currently represents clients in Harris, Montgomery and Fort Bend Counties on issues including division of property, conservatorship, child support, adoptions, and modifications.

Endnotes 1. DFPS is the umbrella state organization. CPS is the division of DFPS that protects children from abuse and neglect through investigations, services, foster care and adoption.

2. TEX. FAM. CODE ANN. § 264.752(a) (West 2008).

3. The term “designated caregiver” is synonymous with “fictive kin” and both refer to caregivers with a longstanding and significant relationship with a child or the child’s family. TEX. FAM. CODE ANN. § 264.851 (West Supp. 2013); CPS Handbook §4513; CPS Handbook § 4521.

4. CPS Handbook § 4120.

5. CPS Handbook §6123.

6. TEX. FAM. CODE ANN. § 261.307(a)(2) (West 2008).

7. TEX. FAM. CODE ANN. § 262.114(a) (West Supp.

2013).

8. The court is required to dismiss the case one year

at Home M a ry McBeth,

after the court rendered a temporary order appointing the department as temporary managing conservator. The court can extend the deadline for another 180 days when extraordinary circumstances exist. TEX. FAM. CODE ANN. § 263.401 (West 2008).

9. In re R.A., Jr., No. 07-08-0084-CV, 2009 WL 77853, at *2 (Tex. App.–Amarillo, Jan. 13, 2009, no pet.) (mem. op., not designated for publication).

10. See In re A.M., 312 S.W.3d 76 (Tex. App.–San Antonio 2010 pet. denied).

11. TEX. FAM. CODE ANN. § 102.004(a) (West 2008).

12. In re M.J.G., 248 S.W.3d 753, 757 (Tex. App.–Fort Worth 2008, no pet.).

13. TEX. FAM. CODE ANN. § 102.004(b) (West 2008).

14. Id. 15. Id. For this paragraph, presume that there is no possibility of reunification of the child with parents, and the “parental presumption” can be rebutted.

16. In re C.M.C., 192 S.W.3d 866, 871 (Tex. App.–Texarkana 2006, no pet.).

17. In re Northrop, 305 S.W. 3d 172 (Tex. App.–Houston [1st Dist.] 2009, no pet.).

18. TEX. FAM. CODE ANN. § 102.003(a)(12) (West Supp. 2013).

19. Mendez v. Brewer, 626 S.W.2d 498, 499 (Tex. 1982).

20. See In re A.M., 60 S.W.3d 166, 169 (Tex. App.– Houston [1st Dist.] 2001, no pet.); Rodarte v. Cox, 828 S.W.2d 65, 70 (Tex. App.–Tyler 1991, no pet.).

21. TEX. R. CIV. P. 60; Guaranty Fed. Sav. Bank v.

Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex.1990); Flores v. Melo-Palacios, 921 S.W.2d 399, 404 (Tex. App.–Corpus Christi 1996, writ denied).

Cf., M.J.G., 248 S.W.3d at 756-57.

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By Hon. Josefina M. Rendón

In re Lee:

A Mediated Agreement Causes a Clash Between Long Standing Policies

S

hould a minor be allowed to stay or visit with her mother if her mother is now married to a registered sex offender who is prohibited from being around children? This question, which may cause a strong visceral reaction in many of us, was recently considered by the Texas Supreme Court in the case of In re Lee.1 The inquiry, though, was posed in much different terms: “The sole issue... is whether a trial court presented with a request for entry of judgment on a validly executed MSA (mediated settlement agreement) may deny a motion to enter judgment based on a best interest [of the child] inquiry.”2 Lee pitted long-standing public policies and statutes against each other. The case

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was deemed so important that the State Bar of Texas Family Law Council broke a 25-year-old tradition and filed an amicus brief urging the MSA’s enforcement. In contrast, in a brief filed on behalf of the State of Texas, the Office of the Solicitor General argued that the trial court did not abuse its discretion by refusing to enter judgment on the MSA. The Facts As shown in the Supreme Court’s opinion, Stephanie Lee became primary joint managing conservator of her daughter after her divorce. She later married a convicted sex offender. Despite knowing that her new husband was on probation and prohibited from being around children, she allowed her daughter to live with them. She later allowed the child to move in with her biological father, who soon filed for modification of the parent-child relationship.

The parents ultimately executed an MSA that gave the father the exclusive right to establish the child’s primary residence, allowed Lee periodic unsupervised visitation subject to protective conditions that required the sex offender to be least five miles away from the child during same and allowed the father to verify compliance with those conditions. The agreement included a prominently displayed statement that it was not subject to revocation by the parties, and a statement that “[t]he parties wish to avoid potentially protracted and costly litigation, and agree and stipulate that they have carefully considered the needs... and the best interest of the child.”

An associate judge refused to enter judgment on the MSA after learning that the stepfather was a registered sex offender, and Lee subsequently filed a motion requesting the trial court to enter judgment on it. In turn, the father withdrew his consent to the MSA. After a hearing, the trial court determined that the MSA was not in the child’s best interest, declined to enter judgment on it, and set the case for trial.

Lee ultimately filed a petition for a writ of mandamus with the Texas Supreme

Court after an intermediate appellate court denied her request for mandamus relief.3 She argued that a trial court may decline a statutorily-compliant MSA only if: (1) a party to the agreement was a victim of family violence that impaired that party’s ability to make decisions and (2) the agreement was not in the child’s best interest. She accordingly contended that the trial court abused its discretion because those factors were not present.

tody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”8

Continuing Contact with Parents: “The public policy of this State is to: (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable, and nonviolent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.”5

Peaceable Resolution of Disputes: “It is the policy of this state to encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures.”9 In furtherance of the State’s policy on peaceable resolution of disputes, the Texas Family Code provides that a MSA is binding on the parties if it provides in a prominently displayed statement that it is not subject to revocation and is signed by each party and the attorney (if any and if present at the time).10 The code further provides that “[i]f a mediated settlement agreement meets [the previous requirements], a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.”11 However, as protection to potential victims of violence, the legislature also provided that notwithstanding the above, a court may decline to enter a judgment on a MSA if it finds that: “(1) a party to the agreement was a victim of family violence, and that circumstance impaired the party’s ability to make decisions; and (2) the agreement is not in the child’s best interest.”12

Fourteenth Amendment’s Due Process Clause: “[N]or shall any state deprive any person of life, liberty, or property, without due process of law.”6 The United States Supreme Court has held that the Due Process Clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.7 “The liberty interest... of parents in the care, cus-

The Opinions: The Majority Opinion Justice Debra Lehrman’s opinon, which was joined in relevant parts by Justices Johnson, Willett, Boyd and Guzman, held that the MSA was enforceable. “We hold that this language means what it says: a trial court may not deny a motion to enter judgment on a properly executed MSA on such [best interest of the child] grounds.”13 Because the MSA statute was

Dueling Policies In Lee, the Texas Supreme Court was presented with a dilemma of how to reconcile competing, yet long-standing, policies and laws. How different members of the Court tried to reconcile these contradictions is an interesting study on judicial decision making. Below are some of the policies and laws considered in their opinions: Best Interest of the Child: “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”4

unambiguous, the majority found that it would be inappropriate to resort to rules of statutory construction to construe it, but observed that, in any event, statutory construction provides that a newer and more specific statute (authorizing a nonrevocable MSA) “trumps” the older and more general statute (requiring consideration of the best interest of the child).14 In short, the majority held that the trial court abused its discretion by refusing to enter judgment on the statutorily-compliant MSA.15 The majority, however, did not completely disregard the child’s best interest considerations. It suggested that this important policy is, in part, the force behind the policy urging peaceable resolution of disputes and enforcement of a properly executed MSA. In that regard, it stated that “[e]ncouragement of mediation as an alternative form of dispute resolution is critically important to the emotional and psychological well-being of children involved in high-conflict custody disputes.”16 The majority further stated that “[t]his policy is well-supported by, inter alia, literature discussing the enormous emotional and financial costs of highconflict custody litigation, including its harmful effect on children.”17 And it observed that “[a]llowing courts to conduct such an inquiry in contravention of the unambiguous statutory mandate in section 153.0071 has severe consequences that will inevitably harm children.”18 The majority agreed that “[c]ourts can never stand idly by while children are placed in situations that threaten their health and safety.”19 But it also observed that the trial court based its decision to refuse to enter judgment on the MSA solely on “child’s best interest” concerns, and not because it believed that the MSA would subject the child to abuse, neglect, or endangerment.20 In any event, the majority pointed out that the “[t]rial courts have other statutorily endorsed methods by which to protect children from harm without eviscerating section 153.0071(e)’s mandatory language or reading language into the statute under the guise of ‘interthehoustonlawyer.com

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preting’ it.”21 Some such methods are: • Involving a government agency like the Department of Family and Protective Services (DFPS); • Entering temporary orders, temporary restraining orders or temporary injunctions to protect a child’s safety and welfare; • Appointing a representative for the child, such as an amicus attorney or an attorney ad litem; • Issuing temporary orders during an appeal;

• Ruling on motions to modify or habeas corpus proceedings; and/or • Continuing the MSA hearing for a period of time.22 The Dissenting Opinion In contrast, Justice Paul Green, in a dissenting opinion joined by Chief Justice Jefferson and Justices Hecht and Devine, opined that the Legislature meant what it said when it created the law providing that “[t]he best interest of the child shall always be the primary consideration of the court...”23 The dissent would hold that the trial court had discretion to refuse to enter judgment on a MSA that could endanger the child’s safety and welfare, and, therefore, is not in the child’s best interest.

“To suggest that the Legislature intended otherwise is, I believe, absurd,” stated Justice Green.24 In all, the dissenting opinion used the word “absurd” 13 times in discussing the majority opinion.

The Concurring Opinion Finally, in a concurring opinion, Justice Eva Guzman, a former family judge from Houston who joined in the majority’s holding that the properly-executed MSA foreclosed the trial court’s inquiry on best interest, observed that “[t]he statute furthers the time-honored ‘presumption that fit parents act in the best interests of their children’ and comports with the public policy and purpose of mediation by letting the parties settle their affairs ‘as they see fit’—keeping those matters out of the courtroom.”25 Nevertheless, she agreed “[w]ith the dissent to the extent it believes that a contextual reading of the Family Code allows a narrow inquiry into whether entering judgment on an MSA could endanger the safety and welfare of a child,”26 but found that the Court’s conditional mandamus relief was warranted because the record revealed no legally sufficient evidence that entering judgment on the MSA could endanger the child.27 Conclusion In short, Lee was a momentous and wellwritten yet, possibly, fragile decision.

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Considering the difficult facts, competing laws and compelling public policies involved, it is no surprise that the outcome was so divided. It is, however, a victory for mediation and the solidity of mediated settlement agreements in Texas. On the other hand, the case does not necessarily mark the demise or weakening of the child’s best interest standard, as some family lawyers fear. In a way, the best interest of the child was still considered by all of the Supreme Court’s justices. They just arrived at very different conclusions on how to reach that goal.

Hon. Josefina M. Rendón is president of the Association for Conflict ResolutionHouston and former president of the Texas Association of Mediators. She is also a retired City of Houston municipal judge, a former civil district judge, and former editor of The Texas Mediator.

Endnotes

1. In re Lee, 411 S.W.3d 445 (Tex. 2013).

2. Id. at 450.

3. In re Lee, No. 14-11-00714-CV, 2011 WL 4036610 (Tex. App.–Houston [14th Dist.] Sept. 13, 2011, orig. proceeding) (mem. op., not designated for publication), mand. granted, In re Lee, 411 S.W.3d result of business globalization and an 445 (Tex. 2013). ease in our4. international clientele base, we, (emphasis TEX. FAM. CODE ANN. § 153.002 added). he Law Offices of Marshall Taheri, a U.S. and 5. TEX. FAM. CODE ANN. § 153.001(a) (emphasis rnational litigation law firm, have developed added). expertise and extensive experience to handle all 6. U.S. CONST. amend. XIV, § 1. cts of international matters, as530 follows: 7. Troxel v.

Granville, U.S. 57, 65-66 (2000).

8.

Id. at 65 (emphasis added).

ERNATIONAL BUSINESS LITIGATION AND 9. TEX. CIV. PRAC. & REM. CODE ANN. § 154.002 ITRATION (emphasis added).

10. PERSONAL TEX. FAM. CODE ANN. § 153.0071(d).

ERNATIONAL INJURY AND 11. TEX. FAM. CODE ANN. § 153.0071(e) (emphasis ONGFUL DEATH added).

12. TEX. FAM. CODE ANN. § 153.0071(e-1) (emphasis ERNATIONAL WHITE COLLAR CRIMINAL DEFENSE added).

EXPORT CONTROLS, 13. Lee, 411 OFAC, S.W.3d AND at 447.INTERNATIONAL TRADE 14.

Id. at 451, 455 (“[T]he MSA provision was added CUSTOMS AND COMPLEX IMMIGRATION SOLUTIONS long after the general ‘best interest’ provision and therefore prevailsACT as ‘the statute latest in date EIGN CORRUPT PRACTICES (FCPA) of enactment.’”); TEX. GOV’T CODE ANN. §§ EIGN SOVEREIGN IMMUNITIES ACT (FSIA) 311.025(a), § 311.026(b).

15.

Lee, 411 S.W.3d at 461.

EN TORT CLAIMS ACT (ATCA) 16. Id. at 449.

17. Id. 18. Id. at 455.

19. Id. at 456.

20. Id. at 455.

21. Id. at 456.

22. Id. 23. Id. at 466.

24. Id. at 466-67.

25. Id. at 463.

26. Id. at 463-64.

27. Id. at 466.

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Houston Bar Foundation Recognizes Outstanding Pro Bono, Volunteer Efforts Williams Take office as 2014 Foundation Chair

2014 Foundation Chair, John Eddie Williams.

T

he Houston Bar Foundation marked its 31st year of service with an Annual Meeting and Luncheon held February 25 at the Four Seasons Downtown. The luncheon not only commemorated the installation of new officers, but also recognized the contributions of volunteers who provide pro bono legal representation and other services to the community.

John Eddie Williams of Williams Kherkher Hart Boundas LLP took office as 2014 Chair of the Houston Bar Foundation. Welcoming him and serving as keynote speaker was the Hon. Kay Bailey Hutchison, former U.S. Senator from Texas and now senior counsel in the Dallas office of Bracewell & Giuliani LLP. Williams succeeded Glenn A. B allard, Jr. of B racewell & Giuliani’s Houston office. William R. (B ill) Buck of Exxon Mobil Corporation was elected chair elect and treasurer, and 2013 Foundation Chair Glenn Ballard with keynote Chris Popov of Vinson & Elkins will serve as vice chair. New directors are Craig Glidden speaker, the Hon. Kay Bailey Hutchison. of Lyondell Basell Industries; Tom Godbold of Twin Eagle Resource Management, LLC; and Tim McConn of Andrews Kurth LLP. Completing terms as directors are David B rinley of Shell Oil Company; Chris Arntzen of CenterPoint Energy; and Denise Scofield of Morgan, Lewis & B ockius LLP. Ballard will serve on the board as immediate past chair.

Ballard pesented the Foundation’s annual awards for pro bono service through the Houston Volunteer Lawyers Program (HVL), volunteer mediation services through the Dispute Resolution Center (DRC), and legal writing in The Houston Lawyer, the HBA’s professional journal.

Presentation of James B. Sales Pro Bono Leadership Award to S. Jack Balagia, Jr. S. Jack Balagia, Jr., vice-president and general counsel of Exxon Mobil Corporation, was honored as the fifth recipient of the James B. Sales Pro Bono Leadership Award. Balagia M. Carter Crow accepted the award for Fulbright & was appointed by the Texas Supreme Court to the Board of Disciplinary Appeals, where Jaworski LLP for Outstanding Contribution to HVL he served as chair from 2003-2005, and he has held leadership positions for ExxonMobil’s by a Large Firm. charitable giving campaigns, as well as in community charitable organizations.

Balagia served on the board of directors of the Houston Bar Foundation from 2007-2010, including service as vice chair. Balagia’s support for pro bono services in the corporate sector has developed ExxonMobil as a model for other corporate law departments nationwide. His hands-on approach and encouragement of support from management has earned ExxonMobil numerous awards and recognition for outstanding volunteer and pro bono service at the local, state and national level, including through the Houston Bar Foundation.

Special Awards for Exceptional Pro Bono Contributions HVL presented three special awards for exceptional service on a pro bono case to Jack Edwards and his firm, Ajamie LLP, and to John Spiller of Strasburger & Price. This case Stephen Moll and Holly O’Neill accepted the award involved pro bono work over five years, as well as a dispute related to the case. At the for Gardere Wynne Sewell LLP for Outstanding end of the case, Edwards and Ajamie LLP donated recovered attorney’s fees to HVL. Contribution to HVL by an Intermediate Firm.

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S. Jack Balagia, Jr. accepted both the James B. Sales Pro Bono Leadership Award and the award for Exxon Mobil Corporation for Outstanding Contribution to HVL by a Corporation.

Kristin Craig accepted the award for BakerHostetler for Outstanding Contribution to HVL by a Mid-size Firm.

Alistair Dawson accepted the award for Beck Redden as one of two firms honored for Outstanding Contribution to the HVL by a Small Firm.

Dori Kornfeld Goldman accepted the award for Yetter Coleman LLP as one of two firms honored for Outstanding Contribution to the HVL by a Small Firm.

Bruce Coane accepted the award for Coane and Associates as one of two firms honored for Outstanding Contribution to the HVL by a Boutique Firm.

Peter J. Bennett was honored for the fourth time for Outstanding Contribution to HVL by a Solo Practitioner.

Joan Jenkins accepted the award for Jenkins & Kamin, L.L.P. as one of two firms honored for Outstanding Contribution to the HVL by a Boutique Firm.

John Spiller of Strasburger & Price was honored, along with Jack Edwards and his firm, Ajamie LLP, for exceptional pro bono work on a case that stretched over five years and involved several different issues. thehoustonlawyer.com

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Susan Sanchez of Exxon Mobil Corporation was honored for Outstanding Contribution to HVL by a Pro Bono Coordinator.

Robert G. Devlin earned the award for Outstanding Contribution to the Dispute Resolution Center.

The Hon. Alvin L. Zimmerman was honored for Longevity of Exemplary Service to the Dispute Resolution Center.

The Hon. Dan Hinde of the 269th District Court was honored as the author of the Outstanding Legal Article in The Houston Lawyer for 2013.

Houston Lawyers Who Made a Difference

Dan Wal ton

By The Hon. Mark Davidson

I

t is hard to imagine a legal system in which an entire class of people is excluded from jury service based solely on their race. That is what Harris County had until 1955. African-Americans could, and did, report for jury duty. It made no difference. For years, it had been customary for lawyers to ask judges to strike all African-American jury panelists for cause, and those motions were consistently and uniformly granted. This insidious “gentleman’s understanding” changed because of the will, wisdom and courage of one man—The Hon. Dan Walton.

Judge Walton was elected District Attorney in 1954. Judge Walton came from a 36

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conservative background, and had served as First Assistant District Attorney under a District Attorney that continued the exclusion of Black jurors. Shortly after Judge Walton took office, George Moses was charged with the capital offense of murder of a police officer. Moses was African-American, and the police officer was Caucasian.

Judge Walton used this case to make a statement that the exclusion of any citizen from a jury panel on account of race was wrong, and that the custom would stop immediately. He did so knowing that the stance would be unpopular with many, including the trial

judge and several of the prosecutors in his office. He might also have thought that he was risking getting a conviction by using the Moses case as the breakthrough case that used an integrated jury.

Mr. Moses was convicted, and any justification for continuation of exclusion of jurors ended immediately. Judge Walton said near the end of his life that his decision to unilaterally integrate juries was one of the actions of his thirty-five year public career of which he was proudest. To everyone who has received a fair trial by a jury of their peers in the last sixty years, Judge Walton made a difference.

The Hon. Mark Davidson is an MDL judge and judge (retired) of the 11th District Court. His column for The Houston Lawyer focuses on Houston attorneys who have had significant impact on the law, the legal profession and those served by the law.

A Profile

in pro f e s s io n a l i s m

Marcy Rothman Director, Kane Russell Coleman & Logan, P.C.

ly on what remains. The threshold is competency and candor.

There is more to professionalism. It is putting our best efforts toward the representation of our clients at a deeper level. Professionalism requires us to invest in truly learning our clients’ businesses, so that the counsel we provide does more than answer a question in a vacuum. It is our obligation to respond in the context of our clients’ businesses and what they are trying to accomplish. This requires an inquisitive mind, absorption of the costs of learning, the willingness to be challenged, the ability to examine problems from new perspectives, well-grounded creativity and, when necessary, standing up when the court asks the parties to announce ready or the Board asks for a solution.

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The Houston Lawyer

I

started practicing law in 1988 in Beaumont, Texas, during a period in which the statewide legal culture encouraged “Rambo” litigation tactics. In my opinion, the perception of what lawyers were supposed to do and how lawyers were supposed to conduct themselves in order to properly represent their clients hinged primarily on making work and noise. The legal culture has changed and matured and, while some lawyers still practice in the old style, the majority of our profession has determined that our clients are generally best served by adopting a less overtly pugilistic approach. Having tried dozens of cases to verdict, it seems to me that professional conduct superficially includes doing one’s best to agree on what can be agreed and then joining issue politely but vigorous-

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OFF THE RECORD

A Lawyer Who Danced

By The HON. Jeff Work

The Houston Lawyer

M

versity of Connecticut team to the chamarch Madness was just pionship. Jennifer thought it would be “so upon us and its ripples cool” to be in the tournament one day. have long affected HousJennifer’s senior year at Rice was a banton civic culture. Although ner year. Her Rice Owl’s team won the the Men’s Final Four was Western Athletic Conference Tournain Dallas this year, in 2015, Houston’s Rement, punching their ticket to the NCAA liant Stadium will host Regional games, Tournament as a No. 13 seed. In the first then in 2016, Reliant will host the Men’s round, they upset the No. 4 seed UniversiFinal Four. No matter whether an alma ty of California at Santa Barbara on UCSB’s mater is in the tournament, many Houston home court. Jennifer’s favorite tournament attorneys stare anxiously and expectantly memory was the after-game celebration, at their brackets. Many of these desk jockparticularly since it was an upset. One eys wonder whether they could ever have assistant coach celebrated so enthusiastitaken their “real” game to the tournament. cally that he separated his shoulder. Two As can be imagined, to actually have days later, North Carolina beat Rice in the played in March Madness is a very excluCafferty at the 2000 NCAA’s First Round at second round, but the “Dance” experience, sive club. Houston is home to a few attoras a whole, was still very memorable. neys who have actually played in March UC Santa Barbara.

When asked how the tournament exMadness. The University of Houston’s Phi perience affected her ability to become a Slama Jama’s story has been well doculawyer, Jennifer responded, “At Rice, we mented including specials on ESPN. This were usually considered the underdog in Cougar team included Houston lawyers any matchup. Although it sounds cliché, Reid Gettys and Lynden Rose. However, I think the experience taught us that you there are other lawyers who have danced can accomplish anything if you set your in the Big Dance also known as March mind to it.”

Madness.

In addition to her tournament experiOne is Jennifer Cafferty, former General ence, during her senior year, Jennifer won Counsel to the Texas Supreme Court, and the women’s three point contest during the currently the Director of Alumni RelaNBA All-Star weekend, then she beat the tions at Vinson & Elkins. Jennifer played men’s winner. for Rice’s Women’s Basketball Team from 1996 to 2000. Jennifer is originally from Minnesota and her father, who was 6’7,” The Hon. Jeff Work is a former judge of the among other things coached his daughter Harris County State District Courts. to be a basketball player. In 1995, Jennifer Jennifer Cafferty today as Director of Alum- He practices commercial and personal injury remembers attending the Women’s Final ni Relations at Vinson & Elkins. litigation, as well as mediation and arbitraFour in Minneapolis and watching Rebecca Lobo lead the Unition, through the Work Law Firm.

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COMMITTEE SPOTLIGHT

Gender Fairness Committee

Promoting Success For All Lawyers

By Judy Ney

T

he Gender Fairness Committee of the Houston Bar Association has just completed its fourth networking event of the year, featuring a panel of in-house counsel discussing their pathways to inhouse, their experiences, and how firms get business from in-house counsel. The event was sponsored by Bracewell & Giuliani LLP. Co-chaired by Chelsie King Garza of Abraham, Watkins, Nichols, Sorrels, Agosto & Friend; Jennifer Hasley of Hasley Scarano, L.L.P.; and Kristin Kruse of Winstead PC, the Committee continues to study and monitor the opportunities for women in Houston’s legal arena. Co-chairs Kruse and King Garza emphasized that no matter how times and attitudes about women change, there is still the need for women to empower one another.

In 2003, the HBA announced the first gender fairness initiative to discuss issues related to gender fairness and to urge law offices to “shatter the glass ceilings” within their organizations. The HBA then established the Gender Fairness Task Force to develop programs and policies to promote equality for women in law offices and corporate legal departments. The Task Force developed a commitment statement that encouraged firms to increase the number of women in partnership and management roles, maintain equal retention rates, offer flexible work schedules, provide mentoring, and take other actions that promote gender fairness. In 2006-2007, the Task Force became a standing committee of the

HBA, and is now known as the Gender Fairness Committee.

The Committee plans programs each year that examine the important issues facing women in the legal profession. It strives to educate both men and women about gender fairness. At the September 2013 networking breakfast, sponsored by

Justice Tracy Christopher and Judge Caroline Baker were among the mentors at the HBA’s first Speed Networking Event, sponsored by the Gender Fairness Committee in February.

ing negotiation strategies for women. This event was sponsored and hosted by Norton Rose Fulbright. The third networking event of the year was sponsored by Andrews Kurth LLP and featured Collyn Peddie who presented “Beyond Fairness: Why Women Are Critical to Winning Cases and Prospering in Today’s Legal Environment.”

On February 26, 2014, the Committee sponsored a “Speed Mentoring” event that provided first to fourth year associates the opportunity to ask questions of managing partners of firms that have signed the gender fairness commitment statement as well as other esteemed attorneys and judges. This event was sponsored by Abraham, Watkins, Nichols, Sorrels, Agosto & Friend. This year’s programs are outstanding examples of how women attorneys, at all levels of practice in their careers, can benefit from networking. The Committee is very thankful for its sponsors’ generous and sincere involvement.

Co-chair Hasley summed up the true meaning of the Committee’s work, stating, “The Gender Fairness Committee brings people together for meaningful networking, social, and educational opportunities that focus on promoting successful working and mentoring relationships for all lawyers.”

Winstead PC, attendees heard Diane Darling of Boston speak on the topic of networking. The second networking event of the year took place in November 2013 and featured a panel presentation discuss-

Judy Ney is a Hearing Officer at the Texas Department of Insurance, Division of Workers’ Compensation and is a member of The Houston Lawyer editorial board.

Co-chairs Jennifer Hasley and Chelsie King Garza, September speaker Diane Darling, and co-chair Kristin Kruse at a networking luncheon.

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LEGAL TRENDS

A General Liability Insurance Policy Must Protect the Policy Holder’s Failure to Perform Construction Work in a “Good and Workmanlike Manner”

By Preston Hutson

The Houston Lawyer

O

n January 17, 2014, the Texas Supreme Court issued its long-awaited opinion in Ewing Const.

Co. v. Amerisure Ins. Co., 57 Tex. Sup. J. 195; 2014 WL 185035 (2014), thereby delivering its decision on what some had termed the “most watched” insurance coverage case in the United States for 2013. In a significant victory for policyholders, the Texas Supreme Court rejected the latest insurance industry effort to exclude coverage for “breach of contract” claims under the standard Comprehensive General Liability (CGL) insurance policy.

The core dispute in this case involved Ewing Construction, which served as the general contractor hired by the Tuluso-Midway I.S.D. (TMISD) in order to construct, among other things, ten40

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nis courts in a “good and workmanlike manner.” When the tennis courts began crumbling soon after completion, TMISD sued Ewing for breach of contract and negligence. Ewing promptly tendered its defense to Amerisure, from whom it had purchased its CGL coverage. After Amerisure denied coverage, Ewing filed a declaratory judgment action in the Southern District, asserting that Amerisure had breached the insurance contract and owed a duty to defend and indemnify it in the underlying litigation.

At issue in the case was the “contract liability exclusion,” which specifically excludes coverage for “‘property damage’ for which the insured is obligated to pay damages by reason of the assumption of liability in a contract...” In short, the CGL insurer sought to distinguish between property damage arising from the general contractor’s negligence, (which would be covered under the CGL Policy,) and property damage associated with the general contractor’s failure to construct a good tennis court as it promised in the construction agreement, (which would not be covered). According to Amerisure, Ewing’s obligation to construct the tennis courts in a “good and workmanlike manner” arose within its construction contract with TMISD and, as a result, constituted “the assumption of liability in a contract,” thus triggering the “contract liability exclusion.”

Conversely, Ewing disputed Amerisure’s contention that its contractual obligation to construct the tennis courts in a “good and workmanlike manner” created additional obligations over its pri-

“

mary obligation to comply with the terms of the contract and to exercise ordinary care while constructing the tennis courts.

In other words, Ewing argued that its express promise to construct the tennis courts in a “good and workmanlike manner” merely restated its tort obligation to use ordinary care in constructing the tennis courts, i.e. the obligations are essentially the same.

As such, the obligation to construct the tennis courts in a “good and workmanlike manner” did not constitute an “assumption of liability” sufficient to trigger the exclusion.

The Texas Supreme Court sided with Ewing Construction, agreeing that TMISD’s allegation that Ewing failed to build the tennis courts in a “good and workmanlike manner” could not be substantively distinguished from its allegation that Ewing failed to use ordinary care while constructing the tennis courts.

In reaching its decision, the Court appears to have issued a clear message: at least in terms of the “contractual liability exclusion,” the issue is not whether the underlying claim sounds in tort, contract, or breach of warranty, but whether the insured assumed liability for damages other than those already implied within the underlying contract, i.e. the duty to perform its contractual obligations in a good and workmanlike manner.

In a significant victory for

policyholders, the

Texas Supreme Court rejected the latest

insurance industry effort to exclude

coverage for ‘breach of

”

contract’ claims...

Preston D. Hutson is of counsel with Hays, McConn, Rice & Pickering, P.C., in Houston. His practice is dedicated to personal injury and civil litigation.

He is a member of the Editorial Board of The Houston Lawyer.

LEGAL TRENDS

A Fatal Analytical Gap: LegalMalpracticeDamages Experts Must Provide a Reasoned Basis for Their Opinions

By Angie Olalde

I

n Elizondo v. Krist, 56 Tex. Sup. J. 1074, 2013 WL 4608558 (Aug. 30, 2013), the Texas Supreme Court reconfirmed that an expert’s mere ipse dixit cannot provide case-saving evidence. In affirming the grant of a no-evidence motion for summary judgment, the Court reminds practitioners that experts must provide a reasoned, fact-based explanation for their conclusions when proffering affidavits in opposition to summary judgment.

The case arose from the 2005 BP plant explosion in Texas City, which led to thousands of claims, all of which settled.

Jose Elizondo was injured in the explosion. He and his wife, Guillermina, hired an attorney, William Wells, to negotiate their claims with BP. Wells demanded $2 million, while BP countered at $50,000.

Wells teamed up with attorneys from the Krist Law Firm in an attempt to increase BP’s offer, but BP’s offer did not change.

Elizondo ultimately accepted the $50,000, and executed a release which Guillermina Elizondo did not sign. Ronald Krist later represented BP. More than one year after settlement, the

Elizondos sued Wells, the Krist Law Firm and its attorneys for legal malpractice, alleging that the settlement was inadequate.

The defendants filed a no-evidence motion for summary judgment challenging the Elizondos’ malpractice damages.

In response, the Elizondos submitted an 8-page expert affidavit from Arturo Gonzalez, an attorney with prior experience settling cases against BP. In the affidavit, Gonzalez stated that confidentiality provisions precluded him from providing specific settlement amounts, but listed several factors that BP considered when valuing cases for settlement.1 He then described facts relating to Jose Elizondo’s injuries, and concluded that the Elizondos’ case would have been valued between $2–$3 million.

Gonzalez deemed BP’s $50,000 settlement offer as made “basically for nuisance value.”

The Texas Supreme Court explained that legal-malpractice damages are measured by the difference between the result obtained and the case’s true value, which can be established by showing a probable recovery following trial with competent counsel. The Court held that, since BP settled every case, the Elizondos could prove malpractice damages using the settlement value of their underlying case—that is, their expert could compare what similarly situated plaintiffs obtained from the same defendant in determining the true value of their underlying case. The Court held that, in a legal malpractice case alleging inadequate settlement, a plaintiff must present expert testimony to establish damages—lay testimony is insufficient.

The Court acknowledged that Gonzalez was qualified to give an opinion on the true value of the case, that his affidavit de-

“

tailed the factors involved in valuing the underlying case, and that Gonzalez had considered the relevant facts. Nonetheless, the Court held that the 8-page affidavit was conclusory because it failed to explain why the Elizondos’ original lawsuit presented a multi-million-dollar case, rather than a $50,000 case. The Court noted that, to fill this analytical gap, the expert could have analyzed the type of injuries involved, compared settlement amounts to medical reports and expenses, or compared similar underlying settlements.

Since Gonzalez’s affidavit did not provide a reasoned explanation, the Court was left to “simply... take his word that the settlement here was inadequate.” The Court therefore affirmed the trial court’s dismissal.

Justice Boyd dissented, joined by Justice Lehrmann, explaining that he believed the Court imposed too strict a standard in the context of a no-evidence motion for summary judgment. Justice Boyd pointed to the extensive facts laid out in the Gonzalez affidavit—remarking that any method of proof that the case’s true value exceeded the results obtained could be used to raise a fact issue. He stated that a fact-finder could have determined that the Elizondos’ claims had substantial merit, but were settled as if they had no merit at all.

The Court reminds practitioners that experts must provide a reasoned, fact-based explanation for their conclusions when proffering affidavits in opposition to summary judgment.

”

Angie Olalde is an associate in the League City office of Greer, Herz and Adams, L.L.P. and a member of The Houston Lawyer editorial board.

Endnote 1. While the defendants opposed the Elizondo’s attempts to obtain discovery about BP settlements, the Court noted that the Elizondos did not preserve these discovery disputes on appeal.

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41

Media Reviews

World War II Law and Lawyers: Issues, Cases and Characters

By Thomas J. Shaw ABA Publishing, 2013

Reviewed by Preston D. Hutson

The Houston Lawyer

D

espite the passing of almost 70 years since the close of World War II, we continue to devour books telling and retelling the story of that generation. Yet, until now, few authors have attempted to analyze the legal issues inherent to this titanic conflict of good vs. evil. Into this void comes Thomas L. Shaw with his new book, World War II Law and Lawyers: Issues, Cases, and Characters. Shaw, the son of an American copilot that flew bomber planes in the Pacific Theater, merges his natural life-long fixation on the war with the legal profession. This is best described as a historical legal treatise tackling a gamut of legal issues that navigate President Roosevelt’s Lend-Lease Program through pre-war neutrality laws to the multi-national tribunals hosting the trial of the war’s most notorious criminals.

Shaw outlines each legal issue in broad terms by detailing the relevant statutes and the controlling legal precedent. From there, he provides a historical account of the issue through to its end. When appropriate to the reader, Shaw continues his historical analysis past the war’s conclusion, describing the ultimate resolution.

With each issue, Shaw identifies those lawyers and judges central to the dispute, briefly summarizing their legal careers.

The book includes over 300 vignettes of various national and international legal personalities ranging from the renowned

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Learned Hand to the relatively obscure John T. Cahill, a former United States Attorney for the Southern District of New York.

Included within these is Texas’ own Tom T. Connally who after voting to declare War on Germany in 1917 resigned his seat in Congress to join the army, despite being 40 years old. Subsequently, Connally returned to Congress, serving in both the House of Representatives and the Senate.

As a Senator, Connally helped both in the creation of the United Nations’ Charter and in obtaining Senate approval.

Much of the book has a distinct American flavor that details many legal issues specific to the United States. Shaw uncovers those issues necessary for America’s transition from peace-time economy to war-time economy while ensuring the American economy maximized both the accumulation and husbanding of scarce resources as well as the production of necessary goods. Shaw also explores the federally enacted price controls, the rationing requirements, and describes the considerable resistance those requirements faced and the efforts to enforce compliance.

Additionally, the book offers a more global perspective reflecting Shaw’s legal career as an international lawyer in Asia.

Shaw details issues encountered in Europe as various European governments crumbled and were later replaced by Fascists.

Shaw illustrates the demise of the “rule of law” within these countries.

Ultimately, Shaw offers a compelling account of the panoply of legal issues incumbent to World War II, and this book is a great addition to the personal libraries for those of us who fancy ourselves amateur World War II historians.

Preston D. Hutson is of counsel with Hays, McConn, Rice & Pickering, P.C. His practice is dedicated to personal injury and civil litigation. He is a member of the editorial board of The Houston Lawyer.

Gods of Guilt

By Michael Connelly Little, Brown and Company, 2013 Reviewed by Taunya Painter

F

inally, an innocent client? Well, not completely innocent, but likely innocent of murdering a prostitute, the charge now pending against him. Andre La Cosse is a pimp. But don’t think tough guy working the streets. He’s a cyber pimp, hiring out his girls via social media and the Internet. Think diminutive geek on trial for murder.

Criminal defense attorney Michael Haller (“Mickey”), the Lincoln Lawyer (aka, Matthew McConaughey in the 2011 hit movie), is back in the game with this not-so-high-profile murder case representing La Cosse. But trials always escalate with Mickey. To win over the “Gods of Guilt” -- the jury that will determine his client’s fate -- he decides not to point to the easiest alternative target or poke holes in the prosecutor’s case. This time, winning is personal for Mickey. He knew and was a sort of friend to the victim, Gloria Dayton (“Glory Days”), and although he’s the defense attorney, he wants to nail the murderer.

Mickey’s attempt to avenge the victim’s death drives him to unfold his own gritty investigation and turn an unwelcomed spotlight on potential adversaries to his client’s freedom—a drug lord, DEA agent, cop on the take, plenty of thugs, and competing criminal lawyers (with emphasis on criminal).

In his fifth Lincoln Lawyer book, author Michael Connelly works up a complex plot that unfolds with such ease that shows just how much of a pro he is at criminal and legal drama. As he opens up “Gods of Guilt,” Mickey is at an all-time low -- he just lost a political election by indirectly causing the death of an innocent woman and her child, his ex-wife with whom he was reconciling is barely talking with him, his daughter is Continued on page 45

Pro Bono in Houston...

Rebuilds Families…Helps Veterans . . .Provides Peace of Mind for Seniors

Equal Access Champions

The firms and corporations listed below have agreed to assume a leadership role in providing equal access to justice for all Harris County citizens. Each has signed a five-year commitment to provide representation in a certain number of cases through the Houston Volunteer Lawyers. For more information contact Kay Sim at (713) 759-1133. *Bold type indicates new Equal access Champion.

Large Firm Champions Andrews Kurth LLP Baker Botts L.L.P. Bracewell & Giuliani LLP Fulbright & Jaworski LLP Locke Lord LLP Vinson & Elkins LLP

Corporate Champions

Baker Hughes Incorporated BP America Inc. CenterPoint Energy, Inc. ConocoPhillips Exxon Mobil Corporation Halliburton LyondellBasell Marathon Oil Company Shell Oil Company

Intermediate Firm Champions Gardere Wynne Sewell LLP Haynes and Boone, L.L.P. King & Spalding LLP

Mid-Size Firm Champions

Adams & Reese LLP Akin Gump Strauss Hauer & Feld LLP Baker Hostetler LLP Beirne, Maynard & Parsons, L.L.P. Chamberlain, Hrdlicka, White, Williams & Aughtry Greenberg Traurig, LLP Jackson Walker L.L.P. Jones Day Looper Reed & McGraw, P.C. Morgan, Lewis & Bockius LLP Porter Hedges LLP

Strasburger & Price, L.L.P. Susman Godfrey LLP Weil, Gotshal & Manges LLP Winstead PC

Small Firm Champions

Abraham, Watkins, Nichols, Sorrels, Agosto & Friend Beck | Redden LLP Burleson LLP Gibbs & Bruns LLP Hays, McConn, Rice & Pickering, P.C. Hughes Watters Askanase LLP Johnson DeLuca Kurisky & Gould, P.C. Kroger | Burrus McGuireWoods LLP Schwartz, Junell, Greenberg & Oathout, L.L.P Sidley Austin LLP Sutherland Asbill & Brennan LLP Weycer, Kaplan, Pulaski & Zuber, P.C. Yetter Coleman LLP

Boutique Firm Champions

Blank Rome LLP Coane & Associates Connelly • Baker • Wotring LLP Edison, McDowell & Hetherington LLP Fullenweider Wilhite PC Funderburk Funderburk & Courtois, LLP Hicks Thomas LLP Hogan Lovells US LLP Jenkins & Kamin, L.L.P. Ogden, Gibson, Broocks, Longoria & Hall, L.L.P. Sutton McAughan Deaver LLP Strong Pipkin Bissell & Ledyard, L.L.P. Wilson, Cribbs & Goren, P.C.

Solo Champions

Brian Albrecht Law Office of Peter J. Bennett Law Office of J. Thomas Black, P.C. Law Office of Robbie Gail Charette Chaumette, PLLC Damani Law Firm Helene Dang Law Office of Papa M. Dieye The Ericksen Law Firm Flowers & Frankfort Frye, Steidley, Oaks & Benavidez, PLLC Fuqua & Associates, P.C. Hunton & Williams LLP Law Office of James and Stagg, PLLC Katine & Nechman L.L.P. Kim Ly Law Firm PLLC Gregory S. Lindley Law Office of Maria S. Lowry Alejandro Macias Martin R.G. Marasigan Law Offices Danielle H. Maya The Law Office of Evangeline Mitchell, PLLC Bertrand C. Moser Patel Ervin PLLC Law Office of Brent C. Perry, P.C. Pilgrim Law Office Robert E. Price Cindi L. Robison Scardino & Fazel Shortt & Nguyen, P.C. Jeff Skarda Tindall & England, P.C. Travis Torrence Diane C. Treich Norma Levine Trusch Clinton Yu

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GALLERIA AREA ST. JAMES PLACE Attorney-size office with secretarial work station for sublease – AV rated firm, Class A build out. Possibility for referrals. Please send inquiries to houstongallerialawfirm@gmail.com Galleria Area - Available for sublease to a sole practitioner, a furnished 240 sq. ft. exterior office (wall of windows). Includes use of a conference room, wifi, phone w/vm, receptionist and limited secretarial assistance. Call 713-993-9363.

Galleria area law firm has attorney’s office for lease. Class A building.

Downtown view. Conference room.

Receptionist. $1000 per month. mgibson@mdgibson.com 44

March/April 2014

Galleria area suite with great view offices available for lease. Top floor of Chase Bank building at Richmond and Sage. Approximately 200 - 225 square feet per office.

Well appointed suite includes conference room, limited library, wet bar, and free parking. Fax, copier, reception/secretary service available at additional cost. $900.00 per month. Dorena 713-961-5555.

Three nice offices available for sublease in prime downtown location.

All have hardwood flooring. Two offices have loft ceilings and overlook Preston Avenue. The other overlooks Main Street. Both are within an upscale boutique criminal defense law firm. Centrally located between the state and federal courthouses. Please call 713-715-4500 to inquire.

Galleria area law firm has attorney office for lease. Seeking tenant with own practice. Referrals possible. Base rent $1,000 per month includes internet, internet research, telephone, conference room, kitchen; additional services available. Contact: John at 713-374-7032.

120.3 sq. ft. to 249.7 sq. ft. Great for individual or start up firm. Contract work available for court hearings and mediations. Reception area, 3 conference rooms, kitchen, free parking. Fax/copy/scan machine, internet and phones included. Contact Frank Mann (mannfamilylaw.com) at 713-524-6868.

HOUSTON/GALLERIA. One office is available in an office suite shared with seven experienced and established attorneys. Included in monthly rent are three conference rooms, receptionist, Internet access, telephone system, Toshiba color copier/scanner, postage machine, fax and a fully stocked kitchen. Covered parking, file storage facilities and secretary/paralegal space are available. Office furniture not included. Call Jim Westmoreland at 713-759-1188 for details.

Museum Dist/Montrose office space. One office for $500/month.

One atty office and one secretary office for $1100/month. Use of three conference rooms, kitchen. Receptionist to greet your clients. Many other lawyers in the two remodeled homes with 22 offices. Ask for Downtown. Beautiful offices in Macon Strother, 713-781-0778.

Bank of America building. 700 Louisiana, 48th floor. Amazing HOUSTON/GALLERIA/MEMOviews. Office-sharing with estab- RIAL – 7880 San Felipe, Suite 115. lished lawyers. Partner and Associ- Next to Piney Point Village in Meate offices available. Includes re- morial. Sublease two window ofceptionist, phone, internet, copiers, fices overlooking the Buffalo Bayou postage meter, coffee, etc. Shared & trees. $850/mo each. Recently reception, conference rooms, remodeled. Fully furnished, conkitchen. Available April 1. Visit ference room, kitchenette, Internet, www.fb4800.com for photos, etc. very quiet, free covered parking, cleaning service, Wi-Fi. Call Tyler 713-255-3225.

Call 713-468-4600 or email ari.pramudji@pro-ip.com MEMORIAL/GALLIERA AREA (VOSS & SAN FELIPE) Small AV rated Litigation Firm HOUSTON – OFF-SITE RECORD with up to 3 offices for sublease STORAGE. Inside 610 Loop in an with secretarial areas available. office park. 2,655 sq. ft. Utilities Covered parking, access to 2 con- and bathroom. Very clean. White ference rooms, kitchen, phone sys- walls, great lighting. Garage door tem with voicemail, new copier/ on one end. Looking to sublease or scanner, fax, internet and secre- have you take over existing lease. tarial services available. $1,500- Call Wally at (713)599-0211 or email wgallant@wmglegal.com $3,500 monthly. Send inquiries to knewman@ombtxlaw.com S. Gessner & Westheimer Furnished window office (~125 sq.

HOUSTON/ I-10 AT ft.) for sublease with tax controT.C. JESTER/SHEPHERD Office share with established fam- versy attorney. Seeking sole practiily law firm on Katy Freeway. Four tioner with transactional/planning spaces, $600 a month and up. From practice for laid-back environment.

thehoustonlawyer.com

Includes use of conference room, telephone, internet, copier, scanner, shredder, covered parking, file room use. $1,200 per month. Secretarial assistance available at additional cost. Please contact: Lance at 713-972-1040.

Heights area office sharing - 15 minutes from courthouse. Newly built out space on North Loop near Shepherd with downtown views.

Color copier/fax/scanner available on network, internet, full featured phone system, attached covered parking, large offices and room for your files. Kitchen in suite with microwave/pizza oven, coffee, soft drinks & water; deli in building.

Business litigator looking for compatible lawyers to share space.

Call Teri 713-529-2020.

Professional Services Ticket and DWI defense, traffic warrant removal, DPS license hearings, occupational driver’s licenses, and driver’s license issues. Robert W. Eutsler. www.TheTicketAttorney.com.

Tel. 713-464-6461.

Other

PORSCHE / VINTAGE PORSCHE / 36 Years in Houston - International Sales & Consignment, Full Service Department, Bodywork, Restorations of Any Size, Interior Repairs, Top Replacement, Track Support, Valet Service & Insured Worldwide Shipping. Specializing in low-mileage air-cooled 911s & All Current Porsche models. Select models include rare factory builds, color combinations, factory turbo or factory body packages; exceptional examples of mileage / condition for their age. Contact Robert Neal www.victorymotorcars.com 713-783-6555.

For classifieds ads please contact:

Mary Chavoustie mary@quantumsur.com

281.955.2449 ext.13

Expert Witness/Consultant Securities Arbitration and Litigation Over 35 years experience and 100 cases

Thomas R. Temple MBA, RIA

thomas.temple@att.net

281-433-5448

Title Got You Tied Up? Free up your time and bring surety to your negotiations.

• Litigation Support • Mineral Ownership • Limit Surface Use For Oil & Gas Exploration • Locate “Lost” Owners • Evaluate Removal Of: – Designated Drill Sites – Cumbersome Easements • Cure Title Issues • Over 25 Years Of Property Experience

Media Reviews From page 42

definitely not talking with him, and once again he’s broke. But Connelly successfully shows how a defense lawyer in the middle of a big trial tunes it all out. Mickey has laser focus – 100% gutsy, smart, and a good dose of crazy. Well, crazy in the sense that he will stop at nothing.

Do we call it greasing the wheels, manipulating the system, or just being a really effective lawyer? How is it that a judge agreed to rule in his favor based on the signature of someone who is arguably comatose? Or the use of an amended trial witness list to entrap his enemies into being videotaped in criminal enterprises? Discovery and trial maneuvers are to Mickey what paper clips and gasoline are to McGyver.

If you want a suspense-filled read with plenty of out-ofcourt sleuthing and in-court antics, pick up Michael Connelly’s Gods of Guilt. You’ll soon be cheering for the off-beat lawyer who is one of the good guys.

Taunya Painter is an attorney with the Painter Law Firm, focusing on international law, business law, and litigation. She is a member of The Houston Lawyer Editorial Board.

at the bar

Javelyn Land Services, LLC 11999 Katy Frwy, Ste. 501, 77079

Portrait Unveiling

713-829-4854 Richard A. Smith, CPL, SR/WA License Texas R. E. Broker

rick@jlsllc.com

the

A portrait of the Hon. Doug Shaver was unveiled in a ceremony on March 20, honoring his service on the 262nd Judicial District Court from 1981-1999. Judge Shaver was joined by his wife Judy, daughter Leigh and Judge Michael McSpadden of the 209th Judicial District Court for the unveiling.

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Enhance your practice Try the HBA advantage.

Judicial Investitures

The Hon. Katrina Griffiths was sworn in as the associate judge for the new Harris County CPS Project Court on February 28 by the Hon. Doug Warne, senior district family court judge. Judge David Farr presided.

www.hba.org thehoustonlawyer.com

March/April 2014

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