Gay Divorce Upheld in Texas Over State’s Protest

     (CN) – A Texas state appeals court upheld a lesbian couple’s divorce, finding that the state had no grounds to intervene and try to overturn the divorce judgment.




     Angelique Naylor and Sabina Daly were married under Massachusetts law in September 2004. After returning to their home in Texas, the couple adopted a child and started a real estate business.
     In December 2009, while the couple was separated, Naylor petitioned for divorce and Daly moved to declare the marriage void under a Texas family code provision that dissolves same-sex marriages. At trial in February 2010, Naylor and Daly reached a settlement and Judge Scott Jenkins granted the divorce.
     A day after Jenkins’ ruling, but before the court had entered a final judgment, the state filed a petition to intervene, arguing that the trial court lacked jurisdiction to grant the divorce because Naylor and Daly were of the same sex.
     At the hearing for final judgment in March, Jenkins said he could not consider the state’s intervention because it was untimely, and signed the divorce order.
     The state then filed an appeal, claiming it had standing to override the untimeliness of its intervention under the virtual-representation doctrine. The doctrine is an exception to the rule that limits appeal rights to parties of record.
     In its appeal, the state claimed to have been virtually represented by Daly, since she had tried, and failed, to void the marriage under the family code.
     A three-judge panel for the state’s Austin-based third district appeals court rejected the assertion on Friday, finding that the state failed to prove standing since it did not meet the three requirements of virtual representation and was not a party of record.
     “The state’s claim that Daly abandoned her defense of the statute fails because Daly never defended the statute in the first place,” Justice Diane Henson wrote for the appeals panel. “She had no reason to do so, given that no constitutional challenge had been raised. … A request for relief under a particular statute is not the equivalent of a defense of that statute’s constitutionality, especially where no constitutional challenge has been raised. Otherwise, the state would be entitled to intervene in any case in which statutory relief has been requested, in order to ‘defend’ the statute granting such relief from any potential (but as yet unraised) constitutional attack.” (Parentheses in original.)
     Henson added that Naylor’s petition for divorce did not attack the constitutionality of the family code since the provision in question can be interpreted in “a manner that would allow the trial court to grant a divorce in this case.”
     The state also failed to satisfy the virtual representation requirements since it lacks any interest in the parties’ property division or child custody agreement, the court found.
     Even if the state had standing, Henson wrote that permitting its intervention would not be in the best interests of the parties, their child or their creditors – issues that were resolved tidily in the settlement.
     “By entering into the agreed judgment in this case, Naylor and Daly were able to settle a protracted and complex property dispute involving numerous business entities, a substantial amount of real property, and multiple creditors, one of whom testified that she had substantially depleted her life savings to loan money to the couple’s fledgling business enterprise,” the ruling states. “Naylor and Daly were also able to settle their differences with respect to the motion to modify the parent-child relationship, incorporating a 50-page agreed order governing child custody into the divorce decree and further agreeing to an order on co-parenting counseling. To allow the state to intervene at this stage of the proceedings would greatly prejudice not only the existing parties and their creditors, but the child whose custody situation remains unsettled while this litigation continues. The state, on the other hand, is not prejudiced in any way if it is unable to intervene on appeal, as it is in no way bound by the trial court’s judgment or otherwise prevented from defending any state statute from constitutional attack.”

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