Texas Appeals Court Turns Back Challenge to Same-Sex Divorce

The Texas 3rd District Court of Appeals at Austin has rejected an attempt by the state's Attorney General Greg Abbott to appeal an order by Travis County District Judge Scott H. Jenkins granting a divorce to Angelique S. Naylor and Sabina Daly.   State of Texas v. Naylor & Daly, No. 03-10-00237-CV (January 7, 2011).  The court did not address the question whether the Texas law against same-sex marriage is constitutional, resting its decision instead on the failure of the Attorney General to seek intervention in the case until after Judge Jenkins had granted Naylor's divorce petition.

Naylor and Daly married in Massachusetts in 2004, then returned to their home in Texas, where they adopted a child and started a real estate business together, according to the opinion for the court of appeals by Justice Diane M. Henson.  After they separated, Naylor filed a lawsuit in January 2009 in the Travis County (Austin) District Court, requesting that she and Daly be named joint managing conservators of the child, and that she be given the exclusive right to designate the child's primary residence.  Naylor and Daly negotiated a settlement of this action, which was embodied in a court order concerning their relationship to the child.  But settling property issues proved more difficult, Naylor contended that Daly had not complied with the court's order, and on December 3, 2009, Naylor filed a new petition for divorce and for modification of the parent-child relationship.

Daly responded to the divorce petition by filing a motion to declare the marriage void, citing Texas Family Code Section 6.204, which provides that marriages between persons of the same sex are "void" in Texas, and Section 6.307, which authorizes any party to a void marriage to sue to have it judicially declared void.  Daly also sought temporary court orders governing the use of property the women had jointly acquired in their real estate business.  Judge Jenkins granted such temporary orders and held a hearing on February 9 and 10, 2010, at which he urged the parties to try to settle as many issues as possible, especially in light of the deficiencies of record-keeping in their business that threatened to make it quite difficult for the court to figure things out. 

Quotations from the trial transcript illustrate the problem.  Said Judge Jenkins: "We have, in summary, a legal mess.  And we have two people who have decided not to do good accounting. . .  So we have an incredibly complex legal problem.  We have an incredibly complex factual problem with poor accounting.  And we have a situation where we have two people who, if I've ever seen it, have an incentive to try to resolve this."  The judge recessed the hearing to allow the parties to attempt to work out a settlement, and they did just that, returning to court later that day, February 10, 2010, with a settlement that was read into the record, after which Judge Jenkins said, "The divorce is granted pursuant to the agreement you have recited into the record, and the division of your estate as set forth by your attorneys is approved as a just and right division of your estate." 

The next day, the State filed a petition to intervene, arguing that Judge Jenkins did not have jurisdiction to grant a divorce because under Texas law Naylor and Daly's marriage was void.  The State argued that the only vehicle for dissolving this "void" Massachusetts same-sex marriage was under Family Code 6.307, authorizing a party to a void marriage to sue for a judicial declaration that the marriage was void.  (Sounds rather circular to us; if a marriage is void from the get-go, why would anybody want to go to the trouble of seeking a judicial declaration to that effect?)  The State claimed that it had been planning to intervene when it got wind of the proceedings, but that the parties and trial judge rushed to settle and enter a judgment and Daly dropped her jurisdictional objection to the divorce petition when they discovered that a representative from the Attorney General's office was in the court room.  The court of appeals rejected this argument, stating "this suggestion of impropriety on the part of the trial court is unsupported by the record," and noting that Judge Jenkins had been urging the parties to settle throughout the course of the two-day hearing.

Daly moved the court for entry of final judgment on March 31, while the State sought to intervene and get the court to reject Daly's motion on jurisdictional grounds.  Judge Jenkins rejected the State's action as untimely, and signed the written divorce decree without ruling on the jurisdictional issue, observing that the state could take up jurisdictional issues with the court of appeals.

The court of appeals found that the State's attempt to intervene was untimely, noting that "the general rule is that a party may not intervene after final judgment unless the judgment is set aside."  The State argued that since it petitioned to intervene before Jenkins signed the final divorce decree, it had acted in time, but the court of appeals found that Jenkins had granted the divorce on February 10, before the State filed its motion. 

An alternative theory argued by the state was the "virtual representative" doctrine, which Henson described as "an exception to the rule that appeal is available only to parties of record."  Texas courts impose a three-part test to determine whether a non-party can appeal under this doctrine.  The appellant must show that "(1) it is bound by the judgment, (2) its privity of estate, title or interest appears from the record, and (3) there is an identity of interest between the appellant and a named party to the judgment," and even if all three tests are met, the court could reject intervention if the intervention would create "unnecessary delay or prejudice to the existing parties." 

The State relied on a case, Motor Vehicle Board v. El Paso Independent Auto Dealers Association, 1 S.W.3d 108, where it had been permitted to intervene to defend the constitutionality of the Texas Blue Laws (barring Sunday operation of businesses), which had been challenged by a local car dealer association in El Paso.  Local government officials named as defendants in the suit had concluded that the law was unconstitutional and negotiated a settlement, but the State was allowed to intervene on appeal to defend the Blue Law.

The State argued by analogy that Naylor's divorce petition was implicitly challenging the validity of the  statutory ban on same-sex marriages, that Daly's response (the void marriage argument) was basically invoking the law, but that their negotiated settlement left the law without any defender in the case, thus authorizing the State to intervene.  The court of appeals wasn't buying this argument, however, finding that, unlike the El Paso auto dealers, Naylor never questioned the constitutionality of the same-sex marriage ban; she was merely seeking a divorce in order to settle issues of parent-child relationships and property ownership division. 

"We decline to read an implied constitutional challenge into Naylor's petition for divorce when no such challenge has been expressly raised," wrote Henson, "particularly given the potential for interpreting section 6.204 in a manner that would allow the trial court to grant a divorce in this case.  One could argue, for example, that section 6.204 did not prohibit the trial court's actions because divorce is a 'benefit' of state residency, rather than a 'legal protection, benefit, or responsibility' resulting from marriage.  One could also argue that under the plain language of section 6.204, the trial court is only prohibited from taking actions that create, recognize, or give effect to same-sex marriages on a 'going-forward' basis, so that the granting of a divorce would be permissible.  Naylor has in fact made both of these arguments, either on appeal or in response to the State's post-judgment plea to the jurisdiction.  While we express no opinion on the merit of these arguments, the fact remains that there are interpretations of section 6.204 that would allow the trial court to grant the divorce without finding the statute unconstitutional.  Furthermore, any such interpretation would have to be entertained before a conclusion of unconstitutionality could be reached.  Thus, Naylor's petition for divorce does not, as the State suggests, represent an implied constitutional challenge."

Furthermore, the court noted, Judge Jenkins had not actually declared 6.204 unconstitutional, and the court rejected the state's argument that future litigants might cite the Naylor-Daly divorce as precedent for finding a waiver by the state to any jurisdictional objections to same-sex divorces.  In brief, the court found that the state could not satisfy the three requirements for a virtual-representation status in this case, and that equitable considerations, especially the best interest of the child, would weigh strongly against allowing the state to intervene and prolong the case.  Courts normally deem it in the best interest of the child to settle issues of custody and visitation as expeditiously as possible to avoid imposing uncertainty on the child concerning its relations with its parents.

The court concluded that the State's interests were not "prejudiced in any way" by allowing the divorce decree to stand, since it would not be prevented from "defending any state statute from constitutional attack."

Thus, while the upshot of this ruling is that the Naylor-Daly divorce will stand, and the court of appeals took no position on whether 2.604 should be construed to allow Texas trial courts to grant divorces for married same-sex couples who reside in Texas, there is not yet a definitive appellate ruling on the merits as to whether same-sex couples who marry elsewhere can get divorced in Texas.  As such, the decision in this case is an anomaly in the law, and it is likely the State will move to intervene more expeditiously the next time a same-sex divorce petition is filed and comes to the attention of the Attorney General's office.