No judge or judicial candidate should want to read this headline: “Court of Appeals reverses judge who screwed gay dad.” Sadly, treating gays and lesbians unfairly is currently good politics if you are a Republican worried only about winning a primary in Texas. Sadder still is what happened to William Flowers in his modification lawsuit in the 309th District Court.
I only handled the appeal, but I personally would have counseled a gay father that winning custody in a jury trial in Harris County would be very unlikely, no matter who the judge was. However, Mr. Flowers asked to switch primary custody of his three children to him. By agreement, Associate Judge Charlie Prine presided over the trial. The jury heard the evidence and decided that the mother should retain the right to determine the children’s primary residence. No question was submitted to the jury about changing the geographic residence restriction because neither party’s pleadings asked for any such change and not a single word of evidence was introduced on the subject. Nonetheless, Judge Prine in his rendition and final order lifted the geographic residence restriction. Prine also changed five parental rights to the father’s detriment even though the mother had no pleadings asking for those changes and there was no discussion of changing those rights at trial.
Just to make it really tough on the gay father who lived with a man he had married legally in another, less God-fearing state, Prine also enjoined Mr. Flowers from allowing any person not related to the children by blood or adoption to care for any of the children during the father’s periods of possession unless the mother approved of the person first. This meant that the father could not leave the children with his “husband,” a teenage babysitter, Barbara Bush, the Dalai Lama, a sunday school teacher or even Charlie Prine unless the mother agreed first. Even if the father went straight and married a woman, the new wife could not care for the children without the mother’s approval. This broad injunction was not requested by the mother or discussed at trial either.
I agreed to represent Mr. Flowers on the appeal at my special “Don Quixote” hourly rate of zero even though I genuinely like that charming rogue Charlie Prine and despite the fact that his boss, Judge Sheri Y. Dean, is my next door neighbor and long-time legal colleague in Clear Lake. It took the 14th Court of Appeals way too long to decide the case, but this all Republican panel of justices at least got it right.
Click here to read this opinion, which you probably will need to frequently cite to trial judges who think pleadings are not really needed in a case involving children. My synopsis of this opinion is:
1. A family court cannot grant relief unless there are pleadings asking for the relief or the issue was tried by consent. The Rules of Civil Procedure even apply in family cases involving children. The court of appeals did not have to get to my point of error that a change in the geographic restriction is a jury issue and in a jury trial that question must be submitted to the jury.
2. An issue is not tried by consent if it is never mentioned or discussed at trial.
3. It is error for a court to issue an overly broad injunction that is not requested in pleadings or supported by the evidence.
Interestingly, while this appeal was pending, Judge Dean decided to modify the order being appealed to further limit the father’s rights and access to his children even though she clearly had lost the plenary power to do so while the appeal was pending, see In re Norris, 371 S.W.3d 546, 554 (Tex. App. – Austin 2012, orig. proceeding)(temporary order signed after trial court’s plenary power expired during appeal was void). Judge Dean also held Mr. Flowers in contempt for not paying $817.50 in uninsured medical expenses and sentenced him to 180 days in jail and actually put him in jail. Even the mother’s lawyers were horrified since they at most expected him to be placed on probation. I was able to get Mr. Flowers released after a weekend in jail with the cooperation of the very ethical and professional attorneys on the other side (as well as Judge Dean, who felt she had gotten her message across).