Texas Frozen Embyo Case Update: Wife To Try Last Desperate Legal Gambit

April 15, 2008

 

The ex-wife in the highly publicized Texas Frozen Embryo Custody case of Roman v. Roman was “devastated” upon hearing the news that the U.S. Supreme Court denied her the right to legal custody of several frozen embryos she had created with her ex-husband prior to their divorce.  Augusta Roman, 46, has said that the embryos are her last chance to become pregnant.   Her ex-husband, Randy Roman asserts that he does not want to create any children with her after their long and bitter divorce. 

Augusta Roman’s local attorney, Becky Reitz, said her client was devastated by the refusal of the Texas and U.S. supreme courts to hear her case.

“She just bawled,” Reitz said. “She cried her eyes out.”

Randy Roman’s attorney, Greg Enos was characteristically understated and said his client was “pleased” with the news and that Mr. Roman was “hopeful that this long ordeal is over”.

It looks however that Randy Roman will have to endure more before the case is finally over.  Augusta has pledged that she is going to exhaust every legal remedy- no matter how long the odds or how much it costs. 

“I told her the only thing we can do is file a motion for reconsideration and it will cost $1,000 just for the printing. She goes, ‘I don’t care”, said Becky Reitz.

Augusta Roman’s last legal option is to motion the U.S. Supreme Court to reconsider it’s decision.   The long shot motion is a final desperate gambit.  The U.S. Supreme Court almost never grants such motions, and such motions usually argue that something new has happened since the Court considered the case. 

If the U.S. Supreme Court denies the motion, Augusta Roman will be out of legal options.  If that happens, the embryos will never be implanted.  The embryos will remain frozen under a protective order until the end of the case.  After all legal remedies are exhausted, the embryos will likely be destroyed by the fertility clinic unless the parties agree to have them disposed of differently.

Quotes from an article printed in the Houston Chronicle 


Finale to Texas Embryo Case of Roman vs. Roman

April 9, 2008

The Texas custody battle over frozen embryos is all but over. 

 You may recall the case of Roman v. Roman which got national attention earlier this year.  On February 4, 2004 after a bitter divorce trial,  Harris County (Houston) Judge Lisa Millard ruled that the embryos that a couple had frozen two years earlier should be awarded to the Nigerian born ex-wife who wanted to have them implanted and brought to term.  The ex-husband, a serious minded man, did not want to be forced to create children with a woman whom he did not love.  The wife, Augusta Roman claimed that because of her age, the embryos where her last chance to bear children.  She promised the ex-husband, Randy Roman that if he accepted the ruling, she would not ask for child support and would agree to let Randy terminate his parental obligations.   Randy was aghast at the thought.  He said that the child support was not the issue and that if any children were born he would meet his obligation to support them and help raise them.  It is not that he didn’t ever want children, he just didn’t want children with THIS woman. 

So Randy filed an appeal to the Texas First District Court of Appeals in Houston.   That court overruled the trial court because at the time the couple froze the embryos, they had each signed a form contract that clearly stated that in the event of the divorce of the couple, the frozen embryos would be destroyed.  Augusta’s claim that she didn’t pay attention to what she was signing did not find any favor with the judges. 

Augusta then filed an appeal with the Texas Supreme Court and at the urging of her attorney, Becky Reitz promptly went on a publicity circuit seeking to garnish public favor for her case.   The softly speaking woman and her piercing attorney made an odd pair on the television, but they interviewed with any media outlet that would have them.  Meanwhile, Randy Roman, a private man by disposition, refused to make a public spectacle of the tragic end of his marriage and instead let his low key attorney, Greg Enos pick a few select media outlets so his side would not be unheard.  Gary Sacks, a father’s right advocate, also voiced Randy’s side with the media. 

In the end, the Texas Supreme Court upheld the appeal court by refusing to hear the case.  It may be that the publicity Augusta and her attorney rutted for actually backfired, and the judges thought it was politically expedient to refuse the case rather than deal with the volatile issues of a “right to life” case (which was how the case was presented in the ex-wife’s brief). 

Determine to see this through to the bitter end, Augusta and her attorney filed an appeal with the U.S. Supreme Court.  After all the media ballyhoo, the Supreme Court has finally ruled.  On March 17, 2008, it denied Augusta Roman’s petition.  In refusing to hear the case (which it is allowed to do), the U.S. Supreme Court has effectively affirmed the ruling of the Texas Supreme Court.  The decision is final and there are no further appeals.

Technically, Augusta has until April 17, 2008 to file a Motion with the U.S. Supreme Cour to reconsider their decision.  She may decide to do this, but the chances of the US Supreme Court suddenly changing its mind and deciding to hear the case are slim to none.  

Therefore with no legal remedies left for Augusta Roman, Randy Roman has won this case once and for all.  And what of the frozen embryos?  Chances are they will linger in limbo for a while before the fertility clinic must finally do something with them.  Their final fate is undecided except that they will never be implanted.

Although we may permit Randy the right to sigh with relief after this long and costly legal war, we must also offer our sympathy to Augusta who no doubt believed in her cause.  Ultimately, as with most all cases that involve family law, there is no clear cut right and wrong.  Practitioners in family law advocate for either side and hope that in the end justice is done- but sometimes, even though we fight with all our power to make sure both sides views are heard by the judges, privately even we can’t be sure of the best outcome.  The only certainty in this field is that these cases always involve tragedy and sadness.  We just have to hope that justice was done and both parties can begin to heal and move on to a better life. 


Texas Frozen Embryo Case of Roman v. Roman On CNN’s Anderson Cooper

November 2, 2007

Follows is the transcript from last nights CNN news show: Anderson Cooper.  In it, Augusta Roman, who has used up all her appeals in Texas indicates that her attorney is working on a brief to take the case to the U.S. Supreme Court.  From politics, let’s turn to a story that is certainly going to have you talking tonight. Divorce cases are often bitter and brutal. And they certainly get worse when there’s a child caught in the middle. But there’s one battle that is not over a boy or a girl. It’s over frozen embryos and just who they belong to. CNN’s Gary Tuchman has our report tonight. (BEGIN VIDEOTAPE) GARY TUCHMAN, CNN NATIONAL CORRESPONDENT (voice-over): They are from very different countries and cultures, but Augusta and Randy Roman hit it off quickly when they met in Texas. AUGUSTA ROMAN, FORMER WIFE OF RANDY ROMAN: We wanted to get married and have kids. So, we didn’t really have a long, what you call it… TUCHMAN (on camera): Courtship. A. ROMAN: Courtship. So, we talked about it, and we wanted to get married and start a family. RANDY ROMAN, FORMER HUSBAND OF AUGUSTA ROMAN: She was the woman that — that I married for life, and she was the woman that I wanted to have a family with. TUCHMAN: They had fertility issues and ultimately began in vitro fertilization treatment. Thirteen eggs were retrieved from Augusta’s ovaries. Six were fertilized with Randy’s sperm. The night before they were ready to implant the eggs: A. ROMAN: I got ready for bed. And he just came out of the office and said he has something that’s been on his mind that he wants to talk about. TUCHMAN: Augusta’s husband told her he didn’t want to go through with it. R. ROMAN: I just felt that something wasn’t right and the marriage wasn’t in harmony. A. ROMAN: I was pretty shocked. TUCHMAN: The couple went through marriage counseling, but, ultimately, they got divorced. However, Augusta, who is now 47, still wanted to try to have a baby from the three embryos that survived the freezing process. A. ROMAN: I want my children. Those are fetuses. They’re my children. They’re not just embryos out there. TUCHMAN: Randy Roman says he’s an evangelical Christian, but: R. ROMAN: Not everybody in the Christian community, or in the evangelical Christian community, believes that life begins at conception. And I’m one of those who does not believe that life begins at conception. TUCHMAN: Greg Enos is his attorney. GREG ENOS, ATTORNEY FOR RANDY ROMAN: He doesn’t want to have a child with a person who feels so negatively about him. He — and he wants to have a child in a nuclear family. TUCHMAN: So, in a most unusual divorce case, the Romans are fighting over their embryos. You will be amazed how far that fight has gone. We will tell you when we come back. (END VIDEOTAPE) (COMMERCIAL BREAK) O’BRIEN: Like many couples, Augusta and Randy Roman wanted to start a family. And their attempts at childbirth lead them to in vitro fertilization treatment. But then the marriage fell apart. She hoped to create a family with the embryos, but he doesn’t want to. CNN’s Gary Tuchman continues his report, showing us just how far both are willing to take this fight. (BEGIN VIDEOTAPE) TUCHMAN (voice-over): Both Augusta and Randy Roman had signed a form, agreeing to have the clinic discard the embryos in the event of a divorce. A. ROMAN: I wasn’t paying attention. I was signing a bunch of forms, trying to get to have babies. That was the only thing on my mind, trying to have babies. REBECCA REITZ, ATTORNEY FOR AUGUSTA ROMAN: My heart just breaks for her. TUCHMAN: Rebecca Reitz is Augusta’s attorney. REITZ: I know that — that society should — should err on the side of protecting life, and — and not destroying life. TUCHMAN: A Texas trial court ruled in favor of Augusta, but then an appellate court ruled in favor of Randy. The Texas Supreme Court decided not to hear the case. Now Augusta’s attorney is preparing briefs for the U.S. Supreme Court. The embryos remain frozen at this clinic. Anti-abortion groups support Augusta. CLARK FORSYTHE, AMERICANS UNITED FOR LIFE: The best-interests- of-the-child standard should be applied here to protect them, without regard to the individual will of either parent. TUCHMAN: One prominent bioethicist disagrees with that. DR. ARTHUR CAPLAN, DIRECTOR, UNIVERSITY OF PENNSYLVANIA CENTER FOR BIOETHICS: He is involved in the creation of the embryos, as well as her. And you don’t want to put people in a position where they’re being asked to reproduce against their will with someone they don’t want to. TUCHMAN: Randy Roman says his ex-wife has made this very difficult and painful. R. ROMAN: She hates my guts, but she wants my sperm. A. ROMAN: I don’t hate him. I feel — I think he has a problem. And I do pray for him. TUCHMAN: She also prays that the U.S. Supreme Court take the case and rules in her favor. It’s her last legal chance. Gary Tuchman, CNN, Webster, Texas. (END VIDEOTAPE) O’BRIEN: OK. So, you have seen the story. Now to the legal issues that are at the center of this battle. For example, is there any difference between the legal rights of an embryo that’s inside the womb and one that’s outside the womb? We will take a look at that just ahead. *** Now back to that bitter custody battle we have been talking about, a divorced couple fighting over frozen embryos. Is this case going to go all the way to the Supreme Court? We are going to check in with law professor Jonathan Turley right after this short break. (COMMERCIAL BREAK) O’BRIEN: In custody cases, courts usually decide by what’s — looking at what is for the best interest of the child. But what if there is a custody case, but no child? What if the fight is over frozen embryos? That’s what is unfolding in Texas between a divorced couple. Randy Roman doesn’t want the embryos implanted. His ex-wife, whose name is Augusta Roman, is hoping that she can use the embryos and have children. A Texas appeals court ruled in his favor, because the two signed a contract saying that those embryos would be discarded upon divorce. Now she’s asking the U.S. Supreme Court to step in. Lots to talk about tonight. Joining us is Jonathan Turley. He, of course, is a constitutional law expert at George Washington University. Jonathan, nice to see you, as always. JONATHAN TURLEY, CONSTITUTIONAL ATTORNEY, GEORGE WASHINGTON UNIVERSITY: Thanks, Soledad. O’BRIEN: The Texas Supreme Court refused to hear the case. What do you think the chances are that, in fact, the United States Supreme Court will hear this case? TURLEY: I would bet against it. I have got to tell you, I don’t think that the United States Supreme Court wants any part of this case. It’s very, very complex, in the sense that it has constitutional elements, contractual elements. But, at the end of the day, the Supreme Court generally leaves these things to the states. And I’m willing to bet you that a majority of the justices would agree with the court of appeals on the case. O’BRIEN: At the same time, you have some outstanding issues. She’s older. These embryos can remain frozen until they make a decision. But there’s sort of a clock ticking here in the background. Will that play any role? TURLEY: Well, all of this goes into the mix. I mean, the trial court actually found that, even if the embryos were implanted, she would have only about a 10 percent likelihood of actually bringing a child to full term. O’BRIEN: Because she’s 47 years old. TURLEY: That’s right. But, still, this is still the potentiality of something that she wants very, very much. And that’s what makes this all very, very tragic. And, so, you have this tension between a case — within a case in which you have got constitutional questions which are looming, the Roe v. Wade, you know, right-to-choose/right-to-life questions. But then you also have a sort of purely contractual question of, these are two people that entered a contract and said, we’re going to do something under these conditions. And one of those conditions was that we would not use the eggs unless both of us agreed. O’BRIEN: And it was clear. There was a form that was signed. She said, you know — she’s not saying she didn’t sign the form. The way she describes it, well, you know, there are lots of forms. And I just signed them because I wanted to go ahead and get — you know, get going with having these babies. Will that have any standing in a court? TURLEY: Not really. I mean, I can understand what she’s talking about. Many of us sign things, particularly when we’re distracted or we’re thinking about other matters. But we are held accountable to those. And this was a very important contract. This was dealing with fertilized eggs, the potentiality of being implanted. And I’m afraid the courts will use that lack of judgment or concentration against her. The — the terrible thing for many people, Soledad, is that these eggs are treated as property. They are just part of the estate. And what the court said originally, the trial court, was, this is a community property state. It’s part of community property. I’m going to give it to — give it to her, and she can use these eggs. But the court of appeals said, wrong, that this is subject to a contract. And the court also noted that there’s a strong public policy against requiring people to have children. O’BRIEN: Anti-abortion organizations are supporting Augusta in this. And she says — this is what she said in interview with the Associated Press — “If I was pregnant with these embryos, no one should come and say to me, abort them. There’s no difference,” she says, “between embryos inside the womb and outside the womb. I’m already pregnant.” Is she already pregnant, in the eyes of a court? TURLEY: No, not in the eyes of the court and not legally. She may view that morally… O’BRIEN: And not technically either. TURLEY: Yes, or technically. But she may believe that, morally, that — that that’s true, that this is the potentiality of life. You know, President Bush is opposed to destroying even stem cells under the same theory. But, legally, that’s not the case. And to make this argument to the Supreme Court is going to really buck the trend. Right now, conservatives are trying to take inches away from Roe v. Wade. This would be a moon shot. This would be asking justices to say that a fertilized egg is itself life that deserves full protection that you would give a full-term baby. That’s just not going to happen. And it hasn’t happened. The notable thing, Soledad, is that the courts have been almost uniform — in fact, I think they have been entirely uniform — in ruling against people trying to force an ex-spouse or ex-partner to relinquish control of these — these eggs, that the courts have said, you really cannot force someone to have a child. You have a right to procreate, but there’s a flip side. You have a right not to procreate, unless they signed a contract waiving that right, their right, to you. O’BRIEN: Jonathan Turley is a constitutional law expert with G.W. University. Nice to see you, Jonathan. Thanks so much.


Woman Vows to Appeal Texas Frozen Embryo Case of Roman v. Roman To U.S. Supreme Court

November 2, 2007

Roman v. Roman started as a Texas divorce case involving the disposition of embryos that had been frozen by the couple prior to filing the divorce action.  The trial court considered the embryos “property” and awarded them to Augusta Roman who wanted to have them implanted in her after the divorce.  Randy Roman did not want to have children with a woman who hated him and he appealed.  The Texas appellate court ruled in his favor in part because the party has signed a contractual agreement at the time the embryos were created that in the event of divorce, the would be destroyed.  Augusta Roman then appealed to the Texas Supreme Court who refused to hear the case.

This author/attorney had hopes that perhaps Ms. Roman would decide to leave well enough alone particularly since it is highly unlikely that the U.S. Supreme Court will want to hear this case because of the very clear fact that these issues are a states right to regulate and the practical fact that at 47, Ms. Roman only has a 10% chance of being able to bring the embryos to term and this percentage decreases with every passing day.  However, on last night’s  CNN news show: Anderson Cooper, Ms. Roman indicated that her attorney is working on a brief to the U.S. Supreme Court.  It is clear that so long as she and her attorney continue to receive publicity about this case- it will fuel Ms. Roman’s litigious nature, and her attorney’s thirst for fame despite the pain and expense this is causing her ex-husband.  Or perhaps it is because of it.

 For Randy Roman, this is not an issue of avoiding parental rights or child support.  He has vowed to support and be a part of any children regardless the outcome.   Mr. Roman apparently must protect his moral, ethical and legal right not to be forced to father children against his will until the bitter legal end.  The public at large should remember that although this case is unique and has become a legal fascination, it is also a personal tragedy for Mr. Roman- and undoubtedly for Ms. Roman as well.  I hope for Mr. Roman (and Ms. Roman too) that this case will end as quickly as possible so he can move on with life. 


Texas Supreme Court Denies Rehearing In Roman Embryo Case

October 16, 2007

On October 12, 2007, the Texas Supreme Court denied a request by Augusta Roman to reconsider the Court’s decision in the case of Roman v. Roman which involves how frozen embryos should be divided in Texas Divorce Cases. 

The Texas Supreme Court had previously refused to hear Augusta Roman’s appeal of a lower court’s decision which said the frozen embryos would not be awarded to her in a Texas divorce.  A refusal to hear a case is the legal equivalent of upholding the lower court’s decision.

Randy Roman and Augusta Roman created and froze the embryos due to difficulties they had in having children.  While still frozen, the embryos became part of a highly contested court case when Randy and Augusta decided to divorce prior to the embryos being implanted.  The trial judge awarded the embryos to the wife in the divorce, who wanted to have them implanted even though the husband did not want children born out of wedlock.  However this ruling was reversed on appeal because the parties had signed an agreement at the time of the embryos’ creation that the embryos would be destroyed in the event of divorce.

Under the rules of the Texas Supreme Court, the Court will NOT consider a second motion for rehearing. Therefore, Augusta has exhausted all her options for appeal on the state level and the decision that she will be denied the embryos stands. 

There is no word yet as to whether Augusta Roman plans to file with the U.S. Supreme Court.


Goodwill As Property In a Texas Divorce

May 4, 2007

Goodwill is the intangible, but valuable good reputation that a business builds up over the years. In a Texas divorce in which one of the community assets is a business or partnership, the value of the business goodwill should be considered as an asset that deserves consideration in the property division in the Texas divorce.

Goodwill in Texas is only considered an “asset” if it can be separated from a particular person. If the business is a solo practice such as the professional business of a doctor, lawyer or accountant, the goodwill must exist separate from the individual. Nail v. Nail, 486 SW2d 761.
In situations such as a law practice, the court will not recognize the existence of goodwill unless the person asserting the goodwill presents some evidence that it exists apart from the professional. Hirsh v. Hirsh 770 SW2d 924.
Texas courts have held that where one person does not do all the work themselves, a business could have goodwill apart from the person. Finch v. Finch 825 S.W. 2d 218.
Goodwill that exists separate and apart from a professional’s personal skills, ability and and reputation is divisible on divorce. Rathmell v. Morrison, 732 SW2d 6.
An attorney trying to prove the existence of business goodwill in a Texas divorce has a difficult task, and will likely have to rely on the expert opinion of a professional business appraiser. And in most instances, there is no practical way to divide goodwill. Seeking an offset from other property is the viable solution. If no such property exists, a money judgement and.or lien against the some tangible asset may be the only other alternative.


“Non-refundable” Fees Not Allowed In Attorney Contracts

May 1, 2007

The following is from D. Todd Smith’s blog TEXAS APPELLATE LAW BLOG: 

In Cluck v. Commission for Lawyer Discipline, the Third Court of Appeals has affirmed a summary judgment disciplining a lawyer who deposited $20,000 from a client into his operating account rather than his trust account. The fee agreement described the money as “a nonrefundable retainer” against which the lawyer would bill at his hourly rate.

Lawyers considering charging their clients “nonrefundable” fees should study this case closely to appreciate the difference between what the Court calls a “true retainer” and a mere “advance fee.” Here, contractual language labeling the money “nonrefundable” was not enough to qualify it as a “true retainer,” which the Court defined as a payment “to secure a lawyer’s services, and remunerate him for loss of the opportunity to accept other employment” (quoting Tex. Comm. on Prof’l Ethics, Op. 431, 49 Tex. B.J. 1084 (1986)).


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