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In re A.D.J.

Court of Appeals of Texas, Fifth District, Dallas

April 3, 2019


          On Appeal from the 255th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-16-19730

          Before Justices Whitehill, Molberg, and Reichek.



         C.D.J., the mother of A.D.J., appeals the trial court's final decree of divorce following a jury trial. In seven issues, Mother generally challenges: (1) the trial court's ruling allowing D.W.D, A.D.J.'s father, to amend his petition twelve days before trial; (2) the trial court's purported limitation of evidence regarding A.D.J.'s best interest; (3) the jury's determination that Mother and Father were informally married when A.D.J. was born; (4) the award of $5, 000 in attorney's fees to Father; and (5) the trial court's division of property. For the reasons discussed below, we overrule appellant's issues, and affirm the trial court's judgment.

         Factual and Procedural Background

         On September 13, 2016, Father filed an original petition for divorce. Although the petition stated the parties were married on or about August 1, 1992, Father later asserted that he and Mother were informally married under the laws of the State of Texas. In his original petition, Father requested that he and Mother be appointed joint managing conservators of A.D.J, the youngest of their three children, but that he be given the exclusive right to designate A.D.J.'s primary residence. In response, Mother filed a general denial.

         On August 15, 2017, one month before trial was scheduled to begin, Mother filed a no-evidence motion for summary judgment stating that Father "has alleged the existence of a valid informal marriage." Mother asserted there was no evidence that she and Father agreed to be married or that they held themselves out as married. On September 6, Father filed a response to the motion arguing there were genuine issues of material fact regarding the elements of informal marriage challenged by Mother. In support of the response, Father submitted multiple affidavits from witnesses stating they knew Mother and Father as a married couple. One affidavit was from a licensed marriage therapist who stated she met with Mother and Father for marital counseling. Father later filed a supplemental response attaching an affidavit in which he testified he and Mother agreed to be married "on or about October 1, 1988."

         On the same day he filed his response, Father filed an amended petition stating that he and mother had created an informal marriage on or about October 1, 1988. Father further requested that, in the event no informal marriage was found, the court render an order establishing his parent-child relationship with A.D.J. In a section of the amended petition entitled "Request for Temporary Orders," Father asked the trial court to order Family Court Services to interview A.D.J. "to determine the child's desires as to which parent should have the right to designate the primary residence of the child."

         Two days later, Mother filed "Objections to Petitioner's Request for Temporary Orders and Setting of Hearing and, in the Alternative, Respondent's Request for Temporary Orders." In her motion, Mother argued the request for temporary orders was untimely because there was no time to have a hearing on the request before trial which was scheduled to begin in ten days. Mother then went on to assert that it was in A.D.J.'s best interests for her to be appointed joint managing conservator with the exclusive right to establish A.D.J.'s residence and asked the court to render temporary orders regarding medical and child support.

         During the pretrial conference on September 18, the trial court addressed Mother's objections and both parties' requests for temporary orders. Because trial was to begin in the case that afternoon, the court struck both sides' requests for temporary orders. Father noted that, as part of Mother's request for temporary orders, she had asserted she should be granted the exclusive right to designate A.D.J.'s primary residence. Father argued that Mother had no pleadings on file to support this request and, therefore, the question of whether Mother should be named primary managing conservator should not be presented to the jury. In the alternative, Father requested a continuance of the trial to conduct discovery on the issue since it had not been previously pleaded.

         After confirming with Mother's counsel that the only pleading Mother had on file was a general denial, the trial court stated there would be no jury question on the issue of whether Mother should be named primary managing conservator. The only issues presented to the jury were: (1) whether Mother and Father were married; (2) whether Mother and Father were married when Mother started her employment in 1990; (3) whether Mother and Father were married when A.D.J. was born in 2007; (4) whether Father should be named the joint managing conservator with the exclusive right to designate A.D.J.'s residence; and (5) the reasonable fee to which each attorney was entitled. The charge instructed the jury that "[a] man and woman are married if they agree to be married and after the agreement they lived together in Texas as husband and wife and there represented to others that they were married."

         At trial, Father called his and Mother's two adult sons as witnesses. The oldest son, Christopher, who is autistic, testified he still lived in the family home, but that he was attending classes to be more independent. He said he liked living at home with Father and his brothers and that he generally went to Father, rather than Mother, when he needed something. He said he and Mother did not get along because she would curse at him and call him the "B word" which made him upset. Although Christopher said his Father was the one who took care of him, he also stated he once called Adult Protective Services about Father. Christopher gave no specifics regarding why the call was made.

         The second son, Quincy, testified that he also lived at home. He stated Father handled most of the household duties and created a chore list for everyone to follow. According to Quincy, the chore list helped him to be more productive. He said both parents were encouraging him to find a job and be more independent. He also stated that neither he nor Christopher had visited Mother since she moved out of the house six weeks earlier.

         Father's mother, Mattie, testified she had been living with Mother and Father for the past two years. Mattie stated Mother and father always held themselves out as married and they had a reputation in the community of being husband and wife. According to Mattie, Father did all the work around the house and Mother did not have much interest in the children. ...

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