Opinions, August 10, 2017

Originally published by mkhtx.

The Fourteenth Court of Appeals released two interesting published opinions yesterday, one on changing a child’s name and the other on invalidating a marriage due to an undissolved previous marriage.

In In re J.N.L., No. 14-16-00325-CV, the father of the child at issue appealed the trial court’s judgment granting petitioner’s request to change the name of the nine-year-old child. The mother and father had been married at one point, but they had divorced; the mother had remarried and filed a petition to change the child’s last name to the step-father’s last name. At the time of trial, father was incarcerated after being convicted of aggravated robbery and is not expected to be released until 2024. He is also a registered sex offender. He testified at trial via videoconference.

On appeal, the father asserted two issues: that the trial court lacked sufficient evidence to grant the request and that it abused its discretion in excluding some evidence.

The COA considered the evidence in support of the factors to be considered in a name change case:

(1) whether the name change would reduce anxiety, embarrassment, inconvenience, confusion, or disruption for the child, which may include parental misconduct and the degree of community respect (or disrespect) associated with the name; (2) whether the name change would help the child identify with a family unit; (3) whether the parent bearing the name the child will have assures that she will not change her name in the future; (4) the length of time the child has used a name and the level of identity the child has with the name; (5) the child’s preference; and (6) the parent’s true motivations for requesting the name change.

The COA examined the evidence in support of each of the elements and determined the evidence as sufficient and overruled father’s issue.

As for the second issue, the COA found the record was incomplete and the father had failed to provide a record which showed he proffered the excluded evidence. The trial court was affirmed.

In Zewde v. Abadi, No. 14-16-00536-CV, the husband appealed from final decree of divorce. Husband and wife were married in January 2014 and their son was born in June 2014. In February 2015, the husband filed an Original Petition to Declare Marriage Void, claiming the wife never properly divorced her prior husband and thus their marriage was void. The wife filed a counter-petition for divorce.

The trial court bifurcated the case, deciding the marriage validity issue on February 15, 2016 and then the divorce issues on May 11, 2016. The husband was represented by counsel in the first stage but was pro se during the second.

During the marriage validity trial, the wife testified that she married her first husband in 2002 in Eritrea, they had two children together, and then they were legally separated in an Italian court proceeding in 2009. The Italian court ordered the first husband to pay child support. The wife initiated pro se divorce proceedings in her native Eritrea in 2013. The record contained a Eritrean divorce decree dated November 12, 2013 and an English translation thereof. The Eritrean decree ordered the wife to announce the proceedings in a local newspaper and that notice appeared in the newspaper on October 22, 2013. The husband produced a copy and translation of the notice of the Eritrean proceedings published in the Eritrean newspaper. The notice states the first husband should be present in the court at 8 a.m. on November 13, 2013. But the decree was granted November 12, 2013. The first husband did not appear in court and the wife took a default judgment. The Court of Appeals noted neither side presented the trial court with any Italian or Eritrean law.

The husband introduced an Italian court decree which indicated proceedings in Italy were ongoing in 2013. This decree was not a divorce decree but a decree on issues related to separation including possession, child support, and damages. The trial court denied the husband’s request that his marriage to the wife be declared void.

The second phase, the divorce phase, began May 11, 2016. Evidence of violence by the father was presented. At the conclusion of trial, the trial court named the wife as SMC and the father as PC. The father was awarded limited possession rights until the child turned three years old and then an SPO would take effect. The trial court awarded child support, retroactive child support, and an additional monthly sum for medical expenses. Father appealed, asserting five issues.

In his first and fifth issues, he challenged the sufficiency of the evidence to support the validity of the marriage determination. In Texas, a marriage is presumed valid and when a person is alleged to be married to more than one person, the most recent marriage is presumed valid against any prior marriage. Thus it was the father’s burden to establish his marriage to the wife was invalid.

Essentially, since neither party presented any evidence on Italian or Eritrean marital law, the husband was unable to establish that the divorce in Eritrea was invalid, either because the notice was improper or because the Italian proceedings were ongoing. The COA overruled the issues.

In his second issue, the husband argued the trial court erred in denying a pretrial motion but the COA overruled the issue because the trial court denied the motion because the husband failed to provide sufficient notice of the motion.

In his third issue, the husband argued the trial court erred in excluding certain exhibits at trial which the trial court excluded on the basis of the wife’s hearsay objection. Because the husband did not offer any argument at trial or on appeal as to why the exhibits were not hearsay, the issue was overruled.

In his fourth issue, the husband argued the trial court erred in considering alleged misrepresentations made by the wife’s counsel but the record did not reflect that the husband objected to the statements in trial and thus they were not preserved for appeal. The trial court was affirmed.

 

 

 

 

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