Litigation

Same-Sex Couple Cannot Get Divorced in Texas, Appeals Court Rules

On Sept. 1, 2010, the Fifth Court of Appeals in Dallas sided with the Texas office of the attorney general (OAG), ruling that a same-sex couple cannot get divorced in Texas.

A three-justice panel of the court granted the OAG's petition for a writ of mandamus, but noted that the writ would issue only if the trial court fails to immediately comply with the court's order. The court remanded the case with instructions that the trial court dismiss it for lack of subject matter jurisdiction.

In the 38-page opinion, Justice Kerry P. FitzGerald, joined by Justices Robert M. Fillmore and David Bridges, wrote that the trial court erred by ruling that article I, section 32(a) of the Texas Constitution and section 6204 of the Texas Family Code violate the Equal Protection Clause of the Fourteenth Amendment.

The controversial case began on Jan. 21, 2009, when J.B. filed his original petition for divorce. Attached to the petition was a certificate of marriage from the Commonwealth of Massachusetts, showing that J.B. and H.B. married in 2006. J.B. alleges in his original petition that the marriage has become insupportable because of discord or conflict of personalities between the two.

In an Oct. 1, 2009, order, 302nd District Judge Tena Callahan ruled that the state's constitutional and statutory provisions prohibiting recognition of same-sex marriages in Texas violate the right to equal protection and therefore the Fourteenth Amendment of the U.S. Constitution. Callahan found that she has jurisdiction to hear the divorce of J.B. and H.B., who were legally married in Massachusetts and currently meet the residency and other requirements to file for divorce in Dallas County. The judge also denied the OAG's motion to intervene in J.B.

On Oct. 2, 2009, the OAG filed a notice of appeal with the Fifth Court, seeking to overturn Callahan's order. That notice stayed Callahan's order. In a Jan. 12, 2010 brief to the Fifth Court, the OAG argued that “the questions presented here can be answered in just two simple steps. First, it is well established that voidance, not divorce, is the proper remedy under Texas law for terminating any purported marriage that is not legally valid in the State of Texas ' including same-sex relationships that may be considered marriages in other states. And in any event, any federal constitutional claim to the contrary is precluded by U.S. Supreme Court precedent. ' ”

In his Feb. 8 brief to the court, J.B. argued that Callahan's order does not overturn Texas' ban on same-sex marriage. “The married couple here simply wants a divorce, just like any other couple married out-of-state, relocated to Texas, and, when their relationship ended, availed themselves of our courts to obtain a divorce,” J.B. wrote.

The Fifth Court heard oral arguments in In the Matter of the Marriage of J.B. and H.B. on April 21. In the Aug. 31 opinion, FitzGerald wrote that the court considered whether Texas' marriage laws are rationally related to the goal of promoting the raising of children in households headed by opposite-sex couples. “We conclude that they are. Because only relationships between opposite-sex couples can naturally produce children, it is reasonable for the state to afford unique legal recognition to that particular social unit in the form of opposite-sex marriage … . The legislature could reasonably conclude that the institution of civil marriage as it has existed in this country from the beginning has successfully provided this desirable social structure and should be preserved … . The state also could have rationally concluded that children are benefited by being exposed to and influenced by the beneficial and distinguishing attributes a man and a woman individually and collectively contribute to the relationship … . The Texas Constitution and the Texas Family Code single out one particular social unit for purposes of defining a legally valid marriage in Texas: opposite-sex couples. Appellee asserts that because Texas law thus both defines and restricts formal recognition of the institution of marriage to opposite-sex couples, it thereby discriminates against and denigrates same-sex couples. We disagree. Texas law recognizes that only opposite-sex couples are naturally capable of producing children, and it gives participants in that kind of relationship the option of legal formalization, with the legitimate legislative goal of encouraging such formalization and thereby promoting the well being of children.”

James Jody Scheske, a partner in the Austin office of Akin Gump Strauss Hauer & Feld who represents J.B., says he is disappointed with the decision and his client will likely appeal. “Eventually, all married couples will have equal access to divorce in Texas. This opinion denies that right to same-sex couples based largely on the notion that the state needs to promote an 'optimal familial setting.' I fail to see what that has to do with divorce. Even divorcing opposite sex couples don't intend to procreate with each other.”

' Miriam Rozen, The Texas Lawyer

Panel Faults Judge for Naming Receiver to Sell House Before Divorce

A New York trial court committed substantive and procedural errors in overriding the terms of a separation agreement and ordering the appointment of a receiver to sell the home shared by the divorcing couple, a unanimous state appeals court has ruled. The appellate court also found that the trial court erred in instructing the receiver to sell the parties' home at a price set by the court, and by relying on a report prepared by a court-appointed appraiser that was not shared with the parties, the court found. Moran v. Moran, 113837/08, Appellate Division, First Department, unsigned decision.

Prior to the commencement of a divorce action, Dr. Stephen Thomas Moran brought a proceeding for the appointment of a receiver to sell the couple's marital home. Dr. Moran contended that his wife, Justine Clare Moran, had frustrated a provision of the separation requiring Ms. Moran to sell the home if she did not acquire financing by a set date sufficient for her to take over the outstanding debt on the property and place it solely in her name.

Once the deadline passed, the agreement authorized Ms. Moran to hire a broker in her “sole discretion” and to use reasonable efforts to consummate an “expeditious” sale at the best price. Dr. Moran contended that Ms. Moran had obstructed the sale by setting the asking price at $850,000 ' $200,000 above the house's fair market value. He also claimed that she had refused to discuss a bottom line beneath which the property would not be sold.

The trial judge granted Dr. Moran's request for a receiver, finding Ms. Moran had listed the property at a level “grossly in excess of any appraised value,” according to the First Department opinion. The judge then ordered Dr. Moran to get an appraisal and separately obtained his own. Dr. Moran's appraisal placed the value of the home at $650,000 and the judge told the parties that the appraisal he had received “was roughly in conformity” with that amount, according to Ms. Moran, a solo commercial litigator who defended herself against her husband's lawsuit to compel a sale.

The judge directed the receiver to accept any offer from a high of $694,000 to a low of $600,000, depending how long the house had been on the market. The appellate panel said the judge “improperly overrode the parties' agreement.” It is well settled law that prior to entry of a judgment of divorce, “courts may not direct the sale of marital property” held in equal shares by spouses without their consent, said the panel.

' Daniel Wise, New York Law Journal

Same-Sex Couple Cannot Get Divorced in Texas, Appeals Court Rules

On Sept. 1, 2010, the Fifth Court of Appeals in Dallas sided with the Texas office of the attorney general (OAG), ruling that a same-sex couple cannot get divorced in Texas.

A three-justice panel of the court granted the OAG's petition for a writ of mandamus, but noted that the writ would issue only if the trial court fails to immediately comply with the court's order. The court remanded the case with instructions that the trial court dismiss it for lack of subject matter jurisdiction.

In the 38-page opinion, Justice Kerry P. FitzGerald, joined by Justices Robert M. Fillmore and David Bridges, wrote that the trial court erred by ruling that article I, section 32(a) of the Texas Constitution and section 6204 of the Texas Family Code violate the Equal Protection Clause of the Fourteenth Amendment.

The controversial case began on Jan. 21, 2009, when J.B. filed his original petition for divorce. Attached to the petition was a certificate of marriage from the Commonwealth of Massachusetts, showing that J.B. and H.B. married in 2006. J.B. alleges in his original petition that the marriage has become insupportable because of discord or conflict of personalities between the two.

In an Oct. 1, 2009, order, 302nd District Judge Tena Callahan ruled that the state's constitutional and statutory provisions prohibiting recognition of same-sex marriages in Texas violate the right to equal protection and therefore the Fourteenth Amendment of the U.S. Constitution. Callahan found that she has jurisdiction to hear the divorce of J.B. and H.B., who were legally married in Massachusetts and currently meet the residency and other requirements to file for divorce in Dallas County. The judge also denied the OAG's motion to intervene in J.B.

On Oct. 2, 2009, the OAG filed a notice of appeal with the Fifth Court, seeking to overturn Callahan's order. That notice stayed Callahan's order. In a Jan. 12, 2010 brief to the Fifth Court, the OAG argued that “the questions presented here can be answered in just two simple steps. First, it is well established that voidance, not divorce, is the proper remedy under Texas law for terminating any purported marriage that is not legally valid in the State of Texas ' including same-sex relationships that may be considered marriages in other states. And in any event, any federal constitutional claim to the contrary is precluded by U.S. Supreme Court precedent. ' ”

In his Feb. 8 brief to the court, J.B. argued that Callahan's order does not overturn Texas' ban on same-sex marriage. “The married couple here simply wants a divorce, just like any other couple married out-of-state, relocated to Texas, and, when their relationship ended, availed themselves of our courts to obtain a divorce,” J.B. wrote.

The Fifth Court heard oral arguments in In the Matter of the Marriage of J.B. and H.B. on April 21. In the Aug. 31 opinion, FitzGerald wrote that the court considered whether Texas' marriage laws are rationally related to the goal of promoting the raising of children in households headed by opposite-sex couples. “We conclude that they are. Because only relationships between opposite-sex couples can naturally produce children, it is reasonable for the state to afford unique legal recognition to that particular social unit in the form of opposite-sex marriage … . The legislature could reasonably conclude that the institution of civil marriage as it has existed in this country from the beginning has successfully provided this desirable social structure and should be preserved … . The state also could have rationally concluded that children are benefited by being exposed to and influenced by the beneficial and distinguishing attributes a man and a woman individually and collectively contribute to the relationship … . The Texas Constitution and the Texas Family Code single out one particular social unit for purposes of defining a legally valid marriage in Texas: opposite-sex couples. Appellee asserts that because Texas law thus both defines and restricts formal recognition of the institution of marriage to opposite-sex couples, it thereby discriminates against and denigrates same-sex couples. We disagree. Texas law recognizes that only opposite-sex couples are naturally capable of producing children, and it gives participants in that kind of relationship the option of legal formalization, with the legitimate legislative goal of encouraging such formalization and thereby promoting the well being of children.”

James Jody Scheske, a partner in the Austin office of Akin Gump Strauss Hauer & Feld who represents J.B., says he is disappointed with the decision and his client will likely appeal. “Eventually, all married couples will have equal access to divorce in Texas. This opinion denies that right to same-sex couples based largely on the notion that the state needs to promote an 'optimal familial setting.' I fail to see what that has to do with divorce. Even divorcing opposite sex couples don't intend to procreate with each other.”

' Miriam Rozen, The Texas Lawyer

Panel Faults Judge for Naming Receiver to Sell House Before Divorce

A New York trial court committed substantive and procedural errors in overriding the terms of a separation agreement and ordering the appointment of a receiver to sell the home shared by the divorcing couple, a unanimous state appeals court has ruled. The appellate court also found that the trial court erred in instructing the receiver to sell the parties' home at a price set by the court, and by relying on a report prepared by a court-appointed appraiser that was not shared with the parties, the court found. Moran v. Moran, 113837/08, Appellate Division, First Department, unsigned decision.

Prior to the commencement of a divorce action, Dr. Stephen Thomas Moran brought a proceeding for the appointment of a receiver to sell the couple's marital home. Dr. Moran contended that his wife, Justine Clare Moran, had frustrated a provision of the separation requiring Ms. Moran to sell the home if she did not acquire financing by a set date sufficient for her to take over the outstanding debt on the property and place it solely in her name.

Once the deadline passed, the agreement authorized Ms. Moran to hire a broker in her “sole discretion” and to use reasonable efforts to consummate an “expeditious” sale at the best price. Dr. Moran contended that Ms. Moran had obstructed the sale by setting the asking price at $850,000 ' $200,000 above the house's fair market value. He also claimed that she had refused to discuss a bottom line beneath which the property would not be sold.

The trial judge granted Dr. Moran's request for a receiver, finding Ms. Moran had listed the property at a level “grossly in excess of any appraised value,” according to the First Department opinion. The judge then ordered Dr. Moran to get an appraisal and separately obtained his own. Dr. Moran's appraisal placed the value of the home at $650,000 and the judge told the parties that the appraisal he had received “was roughly in conformity” with that amount, according to Ms. Moran, a solo commercial litigator who defended herself against her husband's lawsuit to compel a sale.

The judge directed the receiver to accept any offer from a high of $694,000 to a low of $600,000, depending how long the house had been on the market. The appellate panel said the judge “improperly overrode the parties' agreement.” It is well settled law that prior to entry of a judgment of divorce, “courts may not direct the sale of marital property” held in equal shares by spouses without their consent, said the panel.

' Daniel Wise, New York Law Journal