Category Archives: family

When Keeping Kids Is a Crime

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Hammack v. State, No. PD-0636-19, Tex. Crim. App. May 19, 2021. Judge Newell wrote for the 7-2 majority; Presiding Judge Keller and Judge Keel dissented.

Michael Anthony Hammack was convicted of the crime of interference with child custody and sentenced to five years’ probation. On appeal, he argued that the evidence was legally insufficient to convict him because there was no proof he knew the express terms of the order he was charged with violating. The Texarkana Court of Appeals affirmed the conviction, as did the Texas Court of Criminal Appeals.

Hammack was charged and convicted of interference with child custody. The Penal Code makes it a state jail felony to “take[] or retain[] a child younger than 18 years of age” if the person taking or retaining the child “knows that [doing so] violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody.” Tex. Penal Code § 25.03(a)(1), (d).

I want to point out that neither the majority nor the dissent discussed the taking-or-retaining element in any depth. According to the majority’s recitation of the facts, Hammack’s daughter escaped CPS custody and went to her grandmother’s. Even if she wound up in Hammack’s physical custody, one could argue that he never took her from CPS’s custody. Was it sufficient that he “took” her from her grandmother’s? The court doesn’t say.

Instead, the appeal focused on Hammack’s knowledge of the express terms of the order he violated. Hammack did not challenge the existence of the order or that he violated it. He conceded that CPS had obtained an emergency order giving CPS temporary custody of his 16-year-old daughter. He also conceded that he violated that order by keeping the girl for about a week after she “escaped” CPS custody. (Among other things, he chased CPS out of his mother’s house, where the girl was staying, and took her to Oklahoma for a shotgun wedding to her 18-year-old boyfriend.)

Instead, Hammack challenged his conviction on the ground that he could not have known that keeping the girl for a week “violate[d] the express terms” of the order because he had not been formally (or informally) served with the order or told its express terms.

The majority concluded that he had been told the express terms and held that formal service of the order violated is not an element of the crime of interference with child custody. The statute only requires proof that the defendant knew his conduct violated the express terms of the order. While proof of service “may provide sufficient evidence of knowledge in a given case,” it is not necessary in every case. The State can also carry its burden with circumstantial evidence. In this case, the State presented evidence that Hammack was told about the order on three different occasions, including specifically the “express term” that gave CPS custody.

The dissent disagreed about whether he was told the express terms of the order. The dissent emphasized the distinction between being told that CPS had “custody” and being told that CPS had “sole custody.” Here, Hammack was told several times that CPS had been given “custody,” not “sole custody.” Without that key word (“sole”), the dissent would have determined that there was not sufficient evidence to support the conviction.

The majority took some pains to distinguish Tex. Penal Code § 25.07 and Harvey v. State, 78 S.W.3d 368 (Tex. Crim. App. 2002). Section 25.07 criminalizes the violation of a list of “statutorily defined orders, each one having specific notice requirements, among them actual service, necessary to make each respective order ‘binding’.” Section 25.03, on the other hand, criminalizes the violation of custody orders, which may or may not require prior notice to be binding. For example, an ex parte CPS removal order is binding with or without service for up to 14 days. See Tex. Fam. Code § 262.102, 103.

In sum—formal service of the violated order is not an essential element of the crime of interference with child custody. Though the state must prove knowledge of the express terms of the order, it may do so through circumstantial evidence, such as testimony by a witness that she told the offender about the order in sufficient detail that he knew what its express terms required.

Property Divisions Are Forever (Maybe)

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The case of the week is Moore v. Moore, 568 S.W.3d 725 (Tex. App.—Eastland 2019, no pet.). Divorces are never pretty, and they are seldom quick. They usually keep going long after the judge has signed the decree. But this week’s case takes it to a new level.

Background

Ronald and Zuzanna Moore were divorced in June 2005. During the proceedings, Ronald gave Zuzanna “a list of his mineral interests.” 568 S.W.3d at 733. The divorce decree, however, did not list the mineral interests. Instead, it divided the “oil, gas or other minerals . . . standing in the name of the parties or either party” equally between them, and did not award any oil and gas interests to either party as their separate property.  568 S.W.3d at 728. Ronald filed a motion for new trial, but he did not appeal.

Eight years later, Zuzanna discovered “multiple interests that [Ronald] had not included on the list.” 568 S.W.3d at 733. She contacted the producers and instructed them to pay her half the revenues from those interests. They did. When Ronald found out, he filed a petition for clarification in the divorce court, asking that court to clarify that the oil and gas interests were his separate property. In response, Zuzanna filed a motion to enforce the decree, asking the Court to order Ronald to execute the necessary documents to properly transfer her share of the oil and gas interests to her. The divorce court denied Ronald’s petition for clarification and granted Zuzanna’s motion to enforce. Ronald appealed, making four interesting (if unsuccessful) arguments. (He made others, but they are not as interesting and did not succeed.)

Limitations

Ronald argued that Zuzanna’s claims were barred by the statute of limitations. Chapter 16 of the Civil Practice & Remedies Code contains most of the statutes of limitations in Texas law. The two statutes he relied on were the 4-year statute for foreclosing on liens on real property and the 4-year “residual statute,” for actions “for which there is no express limitations period.” Tex. Civ. Prac. & Rem. Code §§ 16.035, 16.051. But statutes of limitations only apply to independent causes of action. Zuzanna, however, was not asserting an independent cause of action; she was trying to enforce a final judgment—to obtain the relief she had already been awarded. Therefore, the ordinary statutes of limitations set forth in Chapter 16 do not apply.

Rather, Chapter 9 of the Family Code governs the time limits for enforcing divorce decrees. Chapter 9 provides that a party has two years to enforce the division of “tangible personal property” and “future property.” Tex. Fam. Code § 9.003. But Chapter 9 is silent about the time limit for enforcing the division of real property.

We presume that the legislature chooses the language of a statute carefully, purposefully choosing each word that it includes and purposefully omitting words that it did not include. [¶] We believe it to be significant that the legislature did not include provisions in Chapter 9 of the Family Code that limit the time within which a party must seek to enforce the division of real property.

568 S.W.3d at 731 (citations omitted). In other words, there is no statute of limitations to enforce a property division (or at least Ronald didn’t carry his burden to prove it). Issue number one overruled.

Laches

Ronald argued that Zuzanna’s claims were barred by the related defense of laches. Laches is a time-based defense like limitations, but it is less mathematically strict. The elements of laches are (1) an unreasonable delay caused by the plaintiff in asserting some legal or equitable right, and (2) a goof-faith change in position by the defendant because of the delay.  528 S.W.3d at 732 (citing City of Fort Worth v. Johnson, 388 S.W.2d 400, 403 (Tex. 1964)).

But Ronald failed to prove unreasonable delay caused by Zuzanna. First, the reason it took her eight years to find the mineral interests was because Ronald failed to disclose them. Once she found them, she promptly researched the claims, hired lawyers, obtained the appropriate division orders, all “within two years after she discovered the existence of the mineral interests.”  528 S.W.2d at 732. When Ronald sued to stop her from taking the royalties, she promptly filed a counterclaim to enforce the property division. None of that delay was unreasonable. No unreasonable delay means no laches defense. Issue number two overruled.

Separate Property

Ronald argued that the oil and gas interests were his separate property and always had been, so the trial court could not divest him of his separate property rights, either in 2005 or 2013. But the time for proving separate property rights is the divorce itself, not in a later enforcement action. Any property held at the time of the divorce is presumed to be community property.  See Tex. Fam. Code § 3.003(a), Pearson v. Fillingim, 332 S.W.3d 361 (Tex. 2011). Because Ronald did not prove the separate property character of his mineral interests during the initial divorce proceedings, that issue could not be revisited—or visited for the first time—at the enforcement stage.

Adverse Possession

Ronald argued that, even if the mineral interests were community property and even if half the interests were awarded to Zuzanna in the divorce, he nevertheless should get to keep them under the doctrine of adverse possession. Adverse possession is one of the most controversial concepts in real property law. The basic idea is that a non-owner of real property can become the owner by making “an actual and visible appropriation” of the real property that “is inconsistent with and is hostile to the claim of another person” for a certain amount of time. Tex. Civ. Prac. & Rem. Code § 16.021(1). The requisite duration of the appropriation depends on the circumstances. For example, a person who merely cultivates, uses, or enjoys property “in peaceable and adverse possession” must do so for 10 years, while somebody who cultivates, uses, or enjoys the property and pays taxes and registers a deed need only wait 5 years. See Tex. Civ. Prac. & Rem. Code §§ 16.025(a); 16.026. Not everything can be adversely possessed. Mineral interests can be adversely possessed, but “nonpossessory interests, including royalty interests, are not subject to adverse possession.”  568 S.W.3d at 733 (citing Nat. Gas Pipeline Co. of America v. Pool, 124 S.W.3d 188, 192 (Tex. 2003)). The distinction between a mineral interest and a royalty interest is a bit beyond my ken, but the important thing to remember is that the adverse possessor bears the burden of proof. Ronald, however, “did not meet his burden to show ‘an actual and visible appropriation’ of the property.” 568 S.W.3d at 734. No appropriation means no adverse possession.

Minors must be served; no ifs, ands, or buts about it

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One of my biggest fears as a lawyer—the thing that makes me wake up in the middle of the night—is that there is some technical gotcha that I have missed, that nobody complained about, but that nobody had to complain about. A recent case out of the Austin Court of Appeals helps explain what I’m talking about. In N.J. v. DFPS, No. 03-20-00259-CV (Tex. App.—Austin Oct. 9, 2020, no pet. h.), the court of appeals reversed and remanded a trial court order terminating the parental rights of a minor because minors cannot waive the requirement of formal service of process, no matter how much they participate in the lawsuit and trial.

The facts are these: N.J. was born in 2003. She gave birth to L.B. (the “Child”) in May 2018, at the age of fifteen. Two months later, on July 23, 2018, CPS received a report of neglectful supervision after N.J. tested positive for “illegal-drug use.” Slip Op. at 1. Ten days after that, CPS filed a petition to terminate N.J.’s rights and obtained emergency orders removing the child from N.J.’s care. An attorney was appointed for N.J., and for the next 16 months, N.J. appeared at and participated in hearings. In January 2020, N.J. presented her case to a jury and asked them (a) not to terminate her rights and (b) to appoint her ex-boyfriend’s mother (the Child’s paternal grandmother) as the managing conservator. The jury said no, and the trial court entered a final judgment in line with the verdict.

N.J. appealed, arguing that the trial court’s judgment had to be vacated because the fact that she was never actually, formally served with process meant that the trial court never actually obtained personal jurisdiction over her. In America, a court cannot render a judgment without having personal jurisdiction over all the parties. This is obtained primarily in one of two ways: either through consent (e.g., filing or participating in the lawsuit) or through compulsion (e.g., being served with citation or process).

Ordinarily, when a defendant appears and participates in a lawsuit, that defendant is deemed to have consented to the trial court’s jurisdiction and cannot later complain about the lack of formal service. But minors are different. Minors are “non sui juris, meaning [they are] considered to be under a legal disability and therefore lack[] the capacity to sue or consent to suit.” Slip Op. at 5 (citing In re M.M.S., No. 14-16-00349-CV (Tex. App.—Houston [14th Dist.] Sept. 22, 2016, pet. denied)). Because a minor legally cannot consent to suit, the minor’s voluntary appearance or participation in a lawsuit cannot count as waiver of service. See In re W.L.C., 562 S.W.2d 454, 455 (Tex. 1978). This is old, old law in Texas. See Wheeler v. Ahrenbeak, 54 Tex. 535, 539 (1881). The idea is that we would not want to live in a society where a 15-year-old had to defend herself against the rich and powerful, well-organized apparatus of the State without the assistance of some adult on her side (other than her attorney).

Because a minor cannot consent to being sued, a plaintiff must formally, personally serve either the minor or, in certain circumstances, her legal guardian or next friend. See Slip Op. at 6 (citing several cases and rules outlining this rule). In this case, N.J. was 15 years old when the petition was filed, but neither she nor her legal guardian nor her next friend were formally, personally served with citation. So even though she appeared, answered, and participated in the lawsuit for 16 months and tried her case to a jury, the trial court never obtained jurisdiction over her.

Judgment reversed and remanded for retrial and one more reason for me to wake up in the middle of the night. [n.1]

Notes:

  1. The reader may be interested to know that the procedural vehicle for challenging defective service is a motion to quash, not a special appearance. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985); City of Houston v. Bryant, 516 S.W.3d 47, 55 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (“Although a claim of a defect in the service of process challenges whether the trial court’s personal jurisdiction over the defendant has been properly invoked, such claims must be raised in a motion to quash, not in a jurisdictional challenge like a special appearance”). If a motion to quash premised on a curable defect in service is or should have been sustained, the remedy is “more time to answer,” not a take-nothing judgment for lack of personal jurisdiction. Fuentes v. Zaragoza, 555 S.W.3d 141, 159–60 (Tex. App.—Houston [1st Dist.] 2018, no pet.); see also Tough Corp. v. Xplore Tech. Corp. of America, No. 03-08-00368-CV (Tex. App.—Austin May 21, 2009, no pet.) (reversing for insufficient service and “remand[ing] the case back to the district court for further proceedings”). In other words, reversal on appeal for insufficient or defective service really means remand for a new trial.

Scheming to Hide the Kids

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Sometimes in law, there are no winners. The 2018 case of Bos v. Smith, 556 S.W.3d 293 (Tex. 2018), is one of those cases. It contains a long and sordid tale, but the bottom line is that a father sued his former in-laws under Chapter 42 of the Family Code for aiding or assisting his ex-wife in blocking his visitation rights. The trial court awarded him $3 million “for mental anguish caused by [his in-laws’] interference with possessory rights” and $236,000 “for economic damages related to [his] legal defense.” Bos v. Smith, 492 S.W.3d 361, 374-75 (Tex. App.—Corpus Christi 2016), rev’d by Bos v. Smith, 556 S.W.3d 293 (Tex. 2018). The court of appeals affirmed the mental anguish damages but reversed on the economic damages. The Supreme Court reversed the whole thing and rendered judgment in the in-laws’ favor. To try to keep them straight, I’ll refer to the Court of Appeals’ opinion as “COA” and the Supreme Court’s opinion as “SCOTEX.”

The Story

Trisha and Craig were married in 2004. They divorced in 2008 with two young kids, both under 3 years old. Their divorce decree contained a standard possession order modified to address visitation before the kids’ third birthdays. Apparently, Trisha was “stingy” with visitation during the first year and eventually orchestrated a “scheme” to deprive Craig of visitation by coaching her kids to make unfounded accusations of sexual assault. SCOTEX, 556 S.W.3d at 297-99. “DFPS ultimately ruled out all sexual-abuse allegations,” and no charges were filed. SCOTEX, 556 S.W.3d at 298. But Trisha still refused to let Craig see the kids. On August 31, 2011, the trial court “held [Trisha] in contempt and imposed jail time for violating the standard possession order.” SCOTEX, 556 S.W.3d at 298. But, according to Craig’s attorney: “I walked out of this courtroom and I had not touched the button to go down the elevator when I was approached by the other lawyer saying, ‘We’ll sign a parental termination immediately’.” COA, 492 S.W.3d at 374 n.11. The trial court stayed the contempt order to allow time for Trisha to reconsider, but ultimately terminated her parental rights. SCOTEX, 556 S.W.3d at 298-99.

But that’s not the end of the story. Throughout this ordeal, Trisha’s parents had tried to help her with the kids. In fact, the first battle was fought when Trisha asked her mother to take the kids to a birthday party even though it was Craig’s turn to have them. SCOTEX, 556 S.W.3d at 297. Things got really bad really fast. DFPS (more commonly known as “CPS”) got involved, and Trisha’s parents agreed to stay with her and supervise her contact with the children as part of DFPS’s safety plan. But, according to the Supreme Court, they

quickly found their monitoring duties burdensome, and Grandfather began pressuring DFPS for a resolution. At one point, at his wit’s end with the situation, Grandfather told DFPS that (1) Mother was a “perfect” mother; (2) Father was a nut with poor parenting skills; and (3) Father used to abuse his daughters and would brainwash them.

SCOTEX, 556 S.W.3d at 298.

Craig was upset about his in-laws’ actions. After Trisha voluntarily terminated her rights, Craig sued his former in-laws under Chapter 42 of the Family Code for aiding and assisting her in blocking his visitation.

The Law

Chapter 42 of the Family Code says that a “person who takes or retains possession of a child or who conceals the whereabouts of a child in violation of a possessory right of another person may be liable for damages to that person.” Tex. Fam. Code § 42.002(a). The available damages include the actual costs and expenses incurred locating the child, recovering possession, and enforcing the possession order, as well as any mental anguish damages. Exemplary damages are available if the interfering person “acted with malice or with an intent to cause harm to the plaintiff.” Tex. Fam. Code § 42.006. And anybody who “aids or assists” the interfering person “is jointly and severally liable” with them if they either (1) had actual notice of the existence and contents of the possession order, or (2) had reasonable cause to believe that an order existed and that their actions “were likely to violate that order.” Tex. Fam. Code § 42.003(a).

The Supreme Court rendered judgment in favor of Trisha’s parents for two main reasons. First:

Chapter 42 does not cover mere schemes. Section 42.003 allows liability for assisting “in conduct for which a cause of action is authorized by this chapter,” and a cause of action is authorized for actually “tak[ing] or retain[ing]” possession of a child or “conceal[ing]” the child’s whereabouts, not for planning to do so.

SCOTEX, 556 S.W.3d at 301.

In other words, Trisha’s schemes weren’t enough, and merely taking sides is not enough. Chapter 42 requires specific action to prevent visitation.

Second, Craig proved “only one specific violation of the standard possession order—the two-hour birthday-party weekend.” SCOTEX, 556 S.W.3d at 301. But he did not prove that his former in-laws actually knew that it was his weekend or that they knew that their actions “were likely to violate” the order. SCOTEX, 556 S.W.3d at 301. He did not prove that they knew what the terms of the visitation order were (i.e., that it was his weekend). And, because the parties had done visitation by agreement for most of the time post-divorce and because of the onset of the DFPS investigation, Trisha’s parents may or may not have known that it was Craig’s weekend and that they should not have kept the kids that weekend.

Without proof of a specific, knowing violation of the possession order, Craig’s claim under Chapter 42 failed.