On Second Thought

Originally published by Carrington Coleman.

In the Interest of B.T.G, a Child
Dallas Court of Appeals, No. 05-13-00305-CV (April 6, 2016)
Justices Brown (Opinion on rehearing), Lang, and Whitehill
Carmen Eiker
At Wife’s request the trial court severed the divorce from the suit affecting the parent-child relationship (SAPCR). The divorce was granted and the SAPCR proceedings continued separately.

Wife requested the severance ostensibly because she needed to purchase a home and represented to the trial court that she could not do so as long as the divorce was pending. On the same day the court heard Wife’s motion to sever, it granted the divorce and the severance.

Texas Family Code § 6.406 mandates that if the parties to a divorce proceeding are parents of a child who is not under the continuing jurisdiction of another court, the divorce suit must include a suit affecting the parent-child relationship.

The Dallas Court of Appeals acknowledged that under Texas Rule of Civil Procedure 41 a trial court has broad discretion in ruling on a motion to sever. But the specific mandate of Family Code § 6.406 trumps the more general provisions of Rule 41. Severing a SAPCR from the divorce suit has the exact opposite result than is mandated by the family code, and was an abuse of discretion by the trial court. Because the severance was improperly granted, the divorce decree was interlocutory, and the case was remanded to the trial court. The Court of Appeals delivered this decision on rehearing, withdrawing and reaching a different result than its original opinion issued August 18, 2015, in which it had held the severance to be proper.

The appeals court’s decision was also supported by the well settled law in Texas that the property division cannot be severed from the divorce per Texas Family Code § 7.001, because the trial court is to consider the rights of the children in making a just and right division of the marital estate. When it comes to divorce, property, and children, the issues cannot be placed in silos to be dealt with separately, since as Aristotle observed “the whole is greater than the sum of the parts.”

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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