TBJ January 2022

2021: The Year in Review

Family Law

Written by Tasha Wilson and Samantha Frazier

Between in-person, hybrid, and Zoom court appearances, hearings, trials, and meetings, 2021 was a whirlwind. It’s safe to say, how we practice law has evolved into the “virtual courtroom” along with new cases and laws that help us navigate through these new family law times.

This year the Texas Legislature made several updates and changes to the Texas Family Code. One notable change is found in Chapter 8, which now includes Subchapter H titled “Maintenance Qualified Domestic Relations Order.” The biggest change under Chapter 8 is that a maintenance QDRO may be issued and utilized like an income wage withholding order. A party may petition the court for a QDRO in an original or modified maintenance suit, an enforcement maintenance action, or even in temporary orders.1 Additionally, child support may also be withheld using a QDRO.2

An expanded standard possession order is applied for conservators who reside less than 50 miles apart. Under 153.3171, the possessory conservator shall have the right to the alternative beginning and ending possession times unless the possessory conservator declines the alternative beginning and ending possession times, or the court finds that the alternative beginning and ending possession times are not in the best interest of the child.3

A silver lining for CPS parties and children can be found under Section 161.302. In certain circumstances, this new law allows for a parent’s parental rights to be reinstated following a CPS termination.4

Our Legislature was not alone in making changes. The courts of appeals and Texas Supreme Court have issued some interesting rulings.

In Hultquist v. Cook, the 14th Court of Appeals in Houston upheld a ruling by the trial court stating that the wife’s testimony of being called derogatory names and multiple affairs by her husband was evidence sufficient to support a cruel treatment finding and awarding the wife a disproportionate share of the marital estate. The wife testified that such treatment caused her hair to fall out and to break out in rashes.5

In the case of In Re Zook, the Texas Department of Family and Protective Services was named as temporary managing conservator of the children. The attorney ad litem filed a motion for the children’s vaccinations to be brought up to date. The mother testified in court of her opposition to the vaccinations. The trial court granted the attorney ad litem’s motion. The 3rd Court of Appeals in Austin reversed the trial court’s decision stating that if the person has actual knowledge that the parent has refused to give consent to the immunization, then neither the trial court nor attorney ad litem could consent to vaccinations for the children.6

In the case of In Re Marriage of Penafiel, the 14th Court of Appeals found that the husband fraudulently induced the wife into entering into the mediated settlement agreement and set the agreement aside. The court held that intent to defraud can be inferred from the party’s conduct after the promise is made. The husband’s failure to satisfy his promise and continued excuses and delays was enough to find fraudulent inducement.7

1. Tex. Fam. Code §§ 8.351-8.353.

2. Tex. Fam. Code § 154.003(5).

3. Tex. Fam. Code § 153.3171.

4. Tex. Fam. Code § 161.302.

5. Hultquist v. Cook, No. 14-19-00896-CV, 2021 WL 225129 (Tex. App.—Houston [14th Dist.] 2021, no pet. h.)(mem. op.) (06-03-2021).

6. In Re Zook, No. 03-21-00180-CV, 2021 WL 2964264 (Tex. App.—Austin 2021, orig. proceeding) (mem. op.) (07-15-21).

7. In Re Marriage of Penafiel, 2021 Tex. App. LEXIS 5956 (Tex. App.—Houston [14th Dist.] July 27, 2021) (Case No.14-19-00240-CV).

TASHA WILSON is a managing partner in Jacqueline Smith & Associates. She serves as an officer for the Houston Bar Association Family Law Section and the president of the Burta Rhoads Raborn Family Law Inn of Court. Wilson is certified in family law by the Texas Board of Legal Specialization and is a member of Gulf Coast Family Law Specialists.

SAMANTHA FRAZIER is an associate attorney of the Richards Brandt law firm, where she concentrates her practice in family law, wills, and probate. She is a member of the Burta Rhoads Raborn Family Law Inn of Court.



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