Texas Lesbian Divorce Stands

BY ARTHUR S. LEONARD | The Texas 3rd District Court of Appeals in Austin has rejected an attempt by State Attorney General Greg Abbott, a Republican, to appeal an order by Travis County District Judge Scott H. Jenkins granting a divorce to Angelique S. Naylor and Sabina Daly.

The court, in a January 7 opinion, did not address the question whether the Texas law against same-sex marriage is constitutional, resting its decision instead on the attorney general’s failure to seek intervention in the case until after Jenkins granted Naylor’s divorce petition.

Appeals court, citing AG’s untimeliness, takes no view whether gay marriage ban allows or prevents them generally

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 Justice Diane M. Henson’s January 7 opinion for the court. After they separated, Naylor filed a lawsuit in January 2009 in Travis County District Court in Austin, requesting that she and Daly share responsibilities for the child but that she be given the exclusive right to designate the child’s primary residence. The couple negotiated a settlement of this action approved by the court.

Settling property issues proved more difficult, and in December 2009, Naylor filed a petition for divorce and to modify the couple’s relationship to the child.

Daly responded with a motion to declare the marriage void, citing Texas law that spells out that marriages between persons of the same sex are “void.” In February last year, in hearings over two days, Judge Jenkins granted Daly’s motion for temporary orders governing use of property the couple jointly acquired in their real estate business, but, noting the deficiencies in their business record-keeping, urged them to try to settle as many issues between themselves as possible.

When later the second day the former couple returned to court to say they had reach settlement, Jenkins said, “The divorce is granted pursuant to the agreement you have recited into the record.”

The next day, the state filed a petition to intervene, arguing that Jenkins did not have jurisdiction since Naylor and Daly’s marriage was void. Daly’s motion to have the marriage declared void was the only mechanism for dissolving the Massachusetts marriage, Texas argued. The state claimed it had planned to intervene before the settlement was reached but had been beaten to the punch by the judge’s and parties’ rushed action.

The court of appeals rejected this argument, stating, “This suggestion of impropriety on the part of the trial court is unsupported by the record.”

As the state sought to intervene, Daly moved on March 31 for Jenkins to enter final judgment. Jenkins rejected the state’s effort to intervene as untimely, and signed the written divorce decree without ruling on Texas’ jurisdictional argument. Texas could take up that question with the court of appeals, he observed.

The court of appeals also 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.” Texas 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.

Texas also invoked the “virtual representative” doctrine, which Henson described as “an exception to the rule that appeal is available only to parties of record.” Under this doctrine, the state must show it is bound by a judgment and has identical interests to one of the named parties.

The Attorney General’s Office argued that Naylor’s divorce petition implicitly challenged the validity of the statutory ban on same-sex marriages, that Daly’s response — seeking to void the marriage — essentially invoked the marriage ban, but that the former couple’s negotiated settlement left the law without any defender in the case, thereby authorizing the state to intervene.

The court of appeals didn’t buy this argument, finding that 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,” Henson wrote.

In fact, the court noted, the marriage ban could be read to allow for the couple’s divorce.

“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,” Henson wrote. “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.”

The court of appeals also 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. It 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.”

Equitable considerations, Henson wrote, especially the best interest of the child, weighed strongly against allowing the state to intervene and prolong the case.

The Naylor-Daly divorce will stand, but the court of appeals took no position on whether the Texas gay marriage ban would allow trial courts to grant divorces for married same-sex couples. As such, the decision is an anomaly in the law, and it is likely Texas will move to intervene more expeditiously the next time a same-sex divorce petition is filed.