Houston Bar Association - Family Law Section

Gray's Interesting Cases for Dec 2003/Jan 2004

Updated and presented by David Gray

Preface: Once again the hedonists who run this group opted for debauchery rather than a December meeting so this is a two-month issue. On a personal note, at the 2003 Advanced Family Law Course, I made some remarks about Judge Charles Ramsay of the 22nd District Court of Hays/Comal/Caldwell Counties. He took umbrage so rather than doing the manly thing such as talk with, or scream at, me or punch me in the nose or at least challenge me to a duel, he filed a disciplinary complaint. I tried to plea bargain, i.e., I'd plead guilty if the punishment would be no less than disbarment but to no avail. After a full evidentiary hearing, the panel found my conduct was so egregious and reprehensible that they unanimously found that there was no merit to Judge Ramsay's complaint hence I am sentenced to continue practicing law and writing this rag. Judge Ramsey may not be a big tuna but he could be an overly-sensitive, whiney big fish in a very small pond. Sorry Charlie - better luck next time.

In re. Kuntz, No. 02-0375, 47 Tex.Sup.Ct.J. 11.
TRCP 192.3 says you must produce, upon request, all relevant documents, etc., which are within your "possession, custody or control" but what does that phrase mean? H & W divorced in '99 with an AID whereby W was entitled to 25% of all future royalties arising from letters of recommendations (LORs) issued by H's employer under which H had an interest per his employment. LORs are geological recommendations to drill for oil/gas in certain areas. If a well hits, the LOR isssuer gets a royalty interest which in turn is shared by certain of the geologist employees such as H. H is a part owner, general manager and a board director of his employer which issues these LORs to certain drilling companies. Because of his employment position, H has complete, unrestricted access to these LORs; however, the LORs and all info. therein are owned by the drilling companies and such data cannot be divulged to any 3rd party w/o the drilling companies' consent. In 2001, W thinks she's not getting all the royalties to which she is entitled so she files suit and makes a proper production request upon H for copies of all LORs issued during her marriage (approx. 2,000). H refuses to produce because the drilling companies refuse to consent to such disclosure. The T/C orders H to produce as he has unrestricted access to the LORs and they are within his possession and control, however, the production is subject to a confidentiality order. H files mandamus to set aside the order.

The Supremes grant the mandamus holding the H, as an employee, may have access to the documents but individually he does not have "possession, custody and control" of such thus he cannot be compelled as an individual to produce same. Additionally, to force H to produce would violate his and his company's confidentiality agreement with the drilling companies thus subjecting both of them to a significant damage suit. The concurring opinions go off on the basis that these LORs are trade secrets and thus are protected under TRCP 507.

Comment - It appears that the Supremes adopted H's argument that he, as an individual in a suit filed against him as an individual, does not have to produce documents in his "possession, custody and control" as a corporate employee. Boy - I've been in a lot of cases where H is the top dog in a corp. and has used his corporate position to wreck havoc on the community thus production of the corporate papers are essential to W. I can see a lot of abuse by using Kuntz to prevent the production of certain corporate papers. If H owns 50% of the corp's stock and there's no alter ego, how can you obtain the corp's financial records so you can appraise the value of H's 50% ownership of the corp?
Mailhot v. Mailhot, No. 01-02-00808-CV, not yet published (CA, Houston-1st).
In H & W's divorce trial, H was prevented from introducing crucial defense evidence because of his alleged failure to comply with discovery rules. Faced with an inability to produce a defense, H settled with W and the T/C approved the settlement. H appeals claiming that the T/C erred in excluding his defensive evidence thus forcing him into a settlement he would not have otherwise agreed to.

CA affirms. When H testified that he and W reached a settlement and requested the T/C to approve it, H waived all non-jurisdictional errors.
In the Interest of S.L.P., No. 2-03-071-CV, not yet published (CA, Ft. Worth).
H & W divorced in Wash. in '90 and W got custody of the kids. W and kids then moved to Nev. In '92, a Nev. T/C changed custody to H due to W's abuse of the kids. In '98, the Nev. T/C terminated W's parental rights. In 2000, the kids ran away from H who had been living in Wash. and started living with W who hid with the kids in Texas. After 2 yrs. in Tex., W filed a SAPCR seeking to be the kids' sole M/C. H filed a H/C plus a special appearance. The Tex. and Nev. T/Cs talked with each other and Nev. said it would exercise juris. over the kids. The Tex. T/C granted H's special appearance; found it didn't have juris; and granted H's H/C. W appealed the granting of H's special appearance and denial of juris. W said Tex. was the kids' home state since they had been here over 6 mos. and neither she nor H lived in Nev; therefore, the Tex. T/C should exercise initial custody juris. as no one lived in Nev.

CA affirmed. Altho Tex. might have custody juris. under §152.203, there is nothing in the UCCJEA that forces the T/C to assume juris. On top of this, it is obvious that W and the kids are in Texas as a result of W's bad conduct thus §152.208 forces the Tex. T/C to decline juris. - §152.208 is a mandatory statute.

Comment - I don't know how significant this case is but it's the first one I know of that discusses the mandatory decline of juris. based on a party's wrongful conduct (§152.208).
A Rose by Any Other Name. In the Interest of M.C.F., No. 2-03-062-CV, not yet published (CA, Ft. Worth).
A & B were dating in Ga. whereupon A became p.g. Being a good Texan, A wanted her child to be born in Texas so she moved in with her family in Gainsville where the child was born. A gave the child her last name. 2 wks. later, B filed a paternity suit in Tex. requesting that he be declared as the child's father and requested that the child's last name be changed to his last name. Upon trial, the T/C found B to be the father and changed the kid's name. The Uniform Parentage Act (§160.001, et. seq.) provides that a child's last name may be changed if requested and for good cause shown. Without detailing all the evidence, the CA reversed holding:
1. Neither parent has the express right to name a child. Guthrie, 45/724.
2. Once a parent names a child, the name can't be changed except for good cause shown.
3. Altho not mentioned in the UPA, in addition to showing good cause, any name change must be in the child's best interest, i.e., Texas engrafts on the UPA, a best interest test.
4. Since B didn't produce sufficient evidence to prove good cause or the newly engrafted best interest element, the child's name shouldn't be changed.
Comment - I just love it when the cts. add new elements to a statute especially when it's a uniform code.
Terry v. Terry, No. 12-03-00169-CV, not yet published (CA, Tyler).
H & W were divorced in '89 and H was ordered to pay $356/mo. in c/s which he didn't do. In 2002 the A.G. filed for contempt. H was found to be $59,272 in arrears; held in contempt and sentenced to jail but his jail time was probated provided he continued to pay $356/mo. in regular c/s plus $200/mo. to be applied to the arrearage. (This is what I love about the A.G. At 10% or 6% interest, the $200/mo. on the arrearage never even pays the yearly interest on the $59,272 arrearage.) Shortly thereafter H became disabled so he filed a motion to reduce both the current c/s ($356/mo.) and the arrearage payments ($200/mo.). The T/C reduced H's c/s to $100/mo. but found it did not have juris. to reduce the $200/mo. arrearage payment. H appeals.

Affirmed. Although §157.269 gives the T/C juris. over a person until the c/s arrearage is fully paid, nothing in the statute grants the T/C the power to modify the monthly am't previously ordered to be paid and applied toward the c/s arrearage. This is true even tho the T/C can modify the terms of H's probation.

Comment - Horsefeathers! I agree that once the total am't of arrearage is determined, the T/C can't modify but heck, the monthly am't to be paid toward that arrearaage is a term of H's probation which Tyler says the T/C can modify. There's nothing in the F/C that says a T/C can't modify (up or down) the am't a person has to pay monthly to reduce a c/s arrearage. This case is wrong and should be ignored.
In re. Pensom, No. 04-03-00211-CV, not yet published (CA, San Antonio).
H & W divorced with them being JMCs of the 2 kids. W had primary custody. W moved in with her parents when she became ill and she and the kids lived there for 6 yrs. until her death. W's parents filed a SAPCR requesting custody of the kids. In a temp. order, the T/C granted the grandparents "access" to the kids. H filed mandamus as the T/C made no finding that H was an unfit parent per Troxel (530 U.S. 57).

CA reversed. To obtain grandparent access under §153.431 et. seq. the grandparent must overcome the presumption that a fit parent acts in his/her child's best interest by proving that: (1) the parent is not fit or (2) denial of access would significantly impair the child's physical health or emotional well being. As the T/C made no findings in this respect, the T/C must be reversed.

Comment - Good reasoning and result. The CA also said that the Texas Grandparent Access Statute is constitutional only if its application protects parents' fundamental due process rights thus the GAS must be narrowly construed in a manner consistent with the const. principles announced in Troxel. Also remember grandparents can only be granted access, not possession. See E.C. v. Graydon, 28/825.
In re. Naylor, No. 06-03-00128-CV, not yet published (CA, Texarkana).
During the pendency of a divorce suit, H filed contempt against W for non-payment of c/s. The sitting judge dismissed the contempt action by order signed on 5/16/03. H then filed a motion to set aside the dismissal and reinstate the contempt action which was granted by a visiting judge by order signed on 6/26/03 - 40 days after the dismissal order. H filed a mandamus on another issue to which W responded that all of this is moot because the 6/26/03 reinstatement was void as H did not file a MNT on the dismissal thus the T/C's plenary power to reinstate expired on 6/16/03 per the 30 day rule of TRCP 329b(e). The CA held that TRCP 329b does not apply to contempt dismissals as this is an interlocutory order. A T/C can set aside a contempt dismissal at any time, even years down the road.

Comment - This being so, if you have a contempt dismissed because you failed to prove some technical point, you don't have to file a new contempt action, just a motion to reinstate. Is this true if the T/C found the person "Not Guilty"? I don't think so as this is a final judgment.
In re. Surgent, No. 13-03-484-CV, not yet published (CA, Corpus Christi).
On 4/16/98 W filed divorce from her Dr. H. The T/C ordered the Dr. to file an inventory of all assets and liabilities which the Dr. refused to do so he was held in contempt. As a contempt sentence, the Dr. was jailed on 1/24/2000 "there to remain until he files an inventory or the flesh rots from his bones."

Later the Dr. files a H/C which was granted on 11/6/03 - 35 mos. during which the Dr. remained in jail because he refused to prepare and file an inventory. (The opinion doesn't say what kind of a Dr. but I suspect a psychiatrist. Who else would rot in jail for nearly 3 yrs. just to avoid preparing an inventory?) Why did the CA kick H loose? Effective 6/20/03 the Texas Leg. enacted §21.002(h) of the Govt. Code which says "...a person may not be confined for contempt longer than ... the lesser of 18 months or the date the person complies with the ct. order... if the contempt is for civil contempt." This statute applies to anyone held in contempt before or after its effective date. Since the Dr. has been in jail for 17 months in excess of the maximum 18 months, the contempt order is now void.

Comment - WOW! Maybe I was asleep during all the recent seminars on new laws but this is the 1st time I've heard of this statute. Tom Stansbury, you bad boy. The end result is that the longest time a person can be placed in jail for contempt is 2 years - 6 months for criminal/punitive contempt and 18 months for civil/coercive contempt. After the Dr. is freed, can he be held in civil contempt again? He was held in contempt for failure to file in inventory from time A to time B. Once released he still hasn't filed an inventory from time C to the filing fo the 2nd contempt motion. Probably not but who knows?
Wheeler v. Green, No. 05-02-01749-CV, not yet reported (CA, Dallas).
W filed a paternity suit against G. Upon trial G was found to be the child's father. W was the primary custodian with G having visitation rights. W wouldn't let G visit with the child and finally G filed for custody. On 1/11/02 G sent a request for admissions, interrogatories, etc. to W by CM/RRR which W received on 1/19/02. W filed her discovery responses on 2/15/02 - 27 days after she received the discovery but 35 days after they were mailed to her. G filed for S/J as the deemed admissions pretty well poured W out of court. The T/C granted S/J whereby H got custody of the child. W didn't file a response to G's motion for S/J. (Why does this happen to other people but never to me - my opponents always properly and timely respond - damn it.) The T/C found that G didn't timely respond to the admissions request and deemed all admissions against her and made such admissions the T/C's fact findings. W appeals.

Affirmed. The T/C properly found that W's discovery responses were untimely. TRCP 198.2 requires a response within 30 days of service. Since W was served by mail, TRCP 21a makes the service date the date it was mailed (1/11/02) but you have to add 3 days for mail delivery so W's response date was 2/13/02. W argued that she didn't receive the discovery until 1/19/02 (no one contested this) so she had to 2/25/02 to respond. CA said No! Even tho W didn't receive the mail service within 3 days of mailing, she should have asked for an extension to respond per TRCP 21a but she didn't - tough luck sweetheart. W then argued that the civil procedure rules should not be strictly applied in a child custody case per Erwin (505/370). The CA distinguished Erwin (and ignored all the other cases that say the same thing) and held that "a complete failure to follow the rules of pleading and practice cannot be ignored even in custody cases."

Comment - Being 2 days late in filing your discovery responses hardly qualifies as "complete failure" but this is Dallas. If you have this type of situation, at least you have cases on both sides to argue your position.
Soldarriaga v. Soldarriaga, No. 03-03-00172-CV, not yet published (CA, Austin).
H filed for divorce. W hired Atty Z to represent her. Atty Z thought her client was nuts and incapable of making decisions to settle the divorce so she filed a motion to have the T/C appoint a next friend for W per TRCP 44. At the hearing a shrink testified that W had mental problems. Atty J, a probate specialist, testified that the T/C did not have the authority to appoint a guardian for W - only the probate ct. could do that. Atty J thought the best procedure would be for Atty Z to file for the appointment of a guardian for W in the probate ct. Atty Z didn't want to wait that long to conclude the divorce suit hence the request for a next friend appointment who has the "same rights concerning such suits as guardians have..." TRCP 44. W was not represented by counsel except for her close warm friend, Atty Z. The T/C appointed Atty J as W's next friend. Over W's objection Atty J (the next friend) settled the divorce case with H per a Rule11 agreement. W finally fired Atty Z and hired a new atty who filed a motion to set aside the next friend appointment and the Rule 11 agreement approved by the next friend. The T/C denied W's motion, approved the Rule 11 and signed a decree divorcing the parties and incorporating the Rule 11 regarding kids and property. Amazingly W appeals.

Reversed. Rule 44 doesn't set any procedural guidelines or manner by which a district ct. can determine if an adult is NCM thus you can't appoint a "next friend" for an adult person without a formal adjudication of incapacity which can only be done in a probate proceeding. If Atty Z thought W was nuts, she should have filed for a probate guardianship and not short-circuit W's rights via the next friend gambit even tho this might take more time. Additionally W was denied due process as she wasn't served with process on the motion to appoint a next friend.

Comment - The CA just re-wrote Rule 44 so now it only applies to minors. I wouldn't want to be in Atty Z's shoes if a grievance is filed.
Mason v. Mason, No. 05-02-02019-CV, not yet published (CA, Dallas).
H (a Dr. - probably another psychiatrist) filed for divorce from W. In the middle of the '82 trial, the parties settled and dictated such into the record. The T/C's docket sheet recites the settlement, declares divorce granted, and judgment to be presented by attys. No judgment was ever submitted so in '84 the T/C DWOP'd the case. H filed a motion to reinstate which was granted but still no judgment so the T/C DWOP'd again in '85. In '91 H marries W2 by whom he had 2 kids. In '90 and '91 H took out 2 life ins. policies with W2 as the sole bene. In the ins. applications H identified W2 as his wife (yeah I know the '90 policy was issued before he and W2 married). Later H was murdered (probably by an unidentified W3). Somehow the ins. companies found out about W1 so they interplead the ins. proceeds into H's probate proceeding so W1 and W2 could duke it out as to who was H's surviving spouse. The probate ct. found that W1 was the "real wife" as the divorce T/C's docket sheet entry was not a rendition of a divorce judgment. W2 appeals. CA affirmed saying:
1. A rendition occurs when announced orally in open ct. or by memo filed with the ct. clerk or otherwise announced publicly.
2. Here there was no written judgment divorcing W1; the ct. reporter's records were lost/destroyed; and there was no memo filed with the ct. clerk.
3. The T/C's docket sheet isn't a judgment unless the record shows that the T/C called the docket notations to the parties' attention in open ct. or it was filed with the ct. clerk as the T/C's judgment.
4. The most recent marriage being valid presumption was clearly rebutted by the evidence that H and W1 were never divorced.
Comment - The facts of these types of cases have always intrigued me. What if the ct. reporter found the record and the T/C did render judgment in open ct.? What's the effect of the final DWOP? Is it a nullity as being outside the plenary power of the T/C? What if the DWOP occurred during the T/C's 30-day plenary period? What if the record remains lost but the trial judge is still alive and he remembers he rendered judgment in open ct. or H's divorce atty (or bystanders) remembers the open ct. rendition even tho the trial judge is dead? What happens if you can locate a partial record proving a divorce rendition but nothing about the property division? It's standard policy in Harris County to DWOP tried or consent divorces (with rendition in open ct.) if decrees are not submitted within a certain time period (some within 30 days and some not). Are our T/Cs just spitting in the wind when they DWOP a pending case 31 days after divorce rendition just because no decree has been submitted? Fascinating.
In the Interest of Shockley, No. 08-02-00082-CV, not yet published (CA, El Paso).
K and M were banging each other. Unknown to K, M was also boffing D. M became p.g. in Oct. '96 and she told K he was the father as she hadn't been with any other man (the lying vixen). The child was born in '97 with K being present. K signed various documents acknowledging his paternity and he is shown as the father on the child's birth cert. The child bears K's last name. D thought he might be the father and he confronted M who said K was the father. K started paying c/s and he visited regularly with the child. Later the child lived with K for some period of time. On 2/8/2000, K filed a paternity suit in Midland and M filed one in San Angelo - each stating that K was the child's biological father. Eventually everything wound up in Dean Rucker's ct. in Midland. In 2001 while the paternity case was pending, M, D and the child were DNA tested and guess what - D is the kid's bio. daddy. This was the 1st time K was made aware that he might not be the kid's father. D then intervenes in the paternity suit to establish his paternity and requested a change of the child's last name to his. M then amends her suit requesting that K's relationship with the child be terminated or restricted and makes D a party stating he's the child's father. K then filed a motion for S/J claiming that D was barred from claiming paternity under the applicable paternity S of L - this was granted so D is out of the suit (actually D non-suited his paternity action so I'm confused on this S/J action). Following trial and after playing Chopin's Polonaise No. 6 with remarkable skill, Judge Rucker renders from his piano bench that K is the child's father and appoints him sole M/C. The judge also makes a fact finding that K is the only father the child has known and M is estopped from denying K's paternity and from seeking to have D declared the child's biol. father. W appeals. CA affirms holding that:
1. The estoppel provisions of §160.608 aren't applicable as genetic testing has already been done.
2. K isn't the child's presumed father as he never married M. §160.204.
3. Equitable estoppel is a valid defense to a person's claim of non-paternity.
4. Equitable estoppel may arise if:
  1. There's a false representation or concealment of material facts (M telling K he's the daddy and/or she hadn't been with any other man).
  2. The false representation is made with knowledge of the actual facts (even M remembered she had been sleeping with D).
  3. Such false representations were made to a person without knowledge of the true facts (K had no reason to disbelieve M's falsehoods).
  4. Such false representations were made with the intention that such would be acted on (K would assume his parental duties including c/s payments).
  5. The misinformed party relied on the lies to his/her prejudice (K's payment of c/s and the emotional involvement with the child).
Comment - Sorry I was so long-winded but this is an Ann McClure opinion - need I say more? In any event Justice McClure has established a new and previously unknown Texas means to establish paternity - equitable estoppel fatherhood.