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Gray's Interesting Cases for Dec 2005/Jan 2006

Updated and presented by David Gray
  1. In re: Rowe, No. 11-05-00386-CV, not yet published (CA, Eastland).

    W filed for divorce in M County on Oct. 19th and served H who had filed for divorce in C County on Oct 21st. H filed a motion to dismiss and a plea in abatement claiming that W had not been a resident of M County for 90 days prior to filing her suit. The T/C denied H’s motions and H filed for mandamus.

    The CA denied the mandamus holding that the 90 day residence rule (§6.301) is a venue statute which is not reviewable by mandamus unless it’s a mandatory venue per §15.0642, Tx. Civ. Proc. & Rem. Code (which §6.301 isn’t). If H appeals after trial and it is found that W hadn’t been a resident of M County for 90 days prior to filing suit, it’s an automatic reversal. The most interesting point is that H argued that if he has to wait until after trial to appeal the §6.301 issue, W will have satisfied the 90 day rule thus rendering this complaint moot (remember the line of cases saying if you file prematurely but amend after satisfying the 90 day rule, the premature filing is ignored). This same argument was made and accepted in Cook v. Mayfield (886/840/2) where the Waco CA accepted & granted mandamus where the Pet. filed prematurely. The Eastland CA refused to follow Cook as they found that you can’t cure the failure to satisfy the 90 day rule by amending. Eastland says you can’t “maintain” a divorce suit unless you satisfy the 90 day rule “at the time the suit is filed” so a premature filing can never be cured.

    Comment – Somehow I don’t think Eastland is correct on the uncureable nature of a premature filing. Until the Supremes approve the uncureable nature concept, I’d stick with Cook because it is more judicially economical than the Rowe procedure.

  2. In the Interest of Z.A.T., et al, No. 10-04-00347-CV, will not be published – memo opinion (CA, Waco).

    In ‘97 H started serving a 45 yr. prison term for murder. In ‘02 H & W divorced with W as sole M/C of the parties’ 3 kids with H as P/C with certain access rights which are not described in this opinion. Apparently W violated H’s visitation rights so he filed 2 enforcement actions (results unknown). Later H filed a motion for additional orders which would assure his "frequent and continuing contact" with his kids. W filed a c/c to remove most of H’s P/C’s powers. H then filed a motion requesting the T/C to order W to produce all 3 kids at the modification trial so they could testify. The next day the T/C denied H’s motion without hearing or giving any reasons for doing so. At trial, H testified by phone (remember he still has 38 yrs. to serve). After trial the T/C signed a nunc pro tunc order granting all of W’s requests and denying all of H’s (Yes I know-- nunc pro tunc in lieu of a modification order -- remember this is Waco where some things are just done differently). H appeals.

    The CA reverses. The T/C erred in denying H’s motion for the children’s attendance at trial. If a child is otherwise competent to testify (all of these kids were less than 10 yrs old), there is no authority for a T/C to exclude a child from testifying. The dissent didn’t disagree with the majority’s reasoning except to say the T/C didn’t prevent the children from testifying as H never subpoenaed the kids. Had H issued & served a subpoena on the kids and the T/C refused to allow the kids to be called, there wouldn’t have been a dissent.

    Comment – 1st - I’ve always wondered how you subpoena a kid. On the kid him/herself or on the adult who has control of the kid? 2nd - In Harris County, several of the courts (maybe all of them) will not allow you to call kids as witnesses without 1st receiving the T/C’s permission. I’ve always thought this rule was unenforceable (assuming the kid is a competent witness). Here’s a case that says so. 3rd - What T/C or W’s atty would designate a murderer serving 45 years a P/C with access rights and standard P/C parental powers? I’ll assume the T/C never knew of H’s 45 yr. sentence and W’s atty (or maybe W) just wanted to avoid a confrontation with H by giving him P/C and access rights. Sometimes you can kiss yourself into big and expensive troubles rather than resolving the issue at the get- go.

  3. In the Interest of N.R.C. and L.A.C., No. 14-04-00891-CV, will not be published – memo opinion (CA, Houston- 14th ).

    H & W divorced in ‘90 with kids. In ‘03 H & W both filed modification motions which were settled by a signed mediation agreement. H’s attorney prepared the modification order which he & H signed but W did not. On June 1st H’s atty appeared at the entry hearing & presented the T/C with his proposed order. W did not appear so the T/C signed H’s order. W then filed a motion to “correct” the signed order as it did not comport with the signed mediation agreement. Upon hearing, on the record, the T/C denied W’s motion “BECAUSE SHE DIDN’T APPEAR AT THE JUNE 1ST HEARING.”

    Reversed. A T/C has no authority to sign an order that differs from a mediated settlement agreement even tho one party doesn’t appear at the entry hearing.

    Comment – T/C’s take note. If an order is submitted based on a MSA but it’s not approved by all parties, make sure the prepared order comports with the MSA or a reversed will occur assuming a timely appeal. As a result of the Galveston T/C’s announced reason for denying W’s motion, this T/C is hereby awarded the 2005 KOOKOO prize.

  4. London v. London, No. 14-03-01088-CV, not yet published (CA, Houston- 14th).

    H & W divorced in ‘95 with them being JMC’s of their 2 kids. H was ordered to pay $1,500/mo in c/s. In ‘98 H filed a motion to modify concerning education, domicile restriction, etc. & W filed a c/c to increase c/s. The T/C increased H’s c/s to $4,500 & socked H with $40,000 in atty fees but placed a domicile restriction on W. H successfully appealed and the c/s & atty fee awards were voided (94/139/3) as W failed to prove a change of circumstance and there was no evidence on atty fees. See my sarcastic comments in the Jan.‘03 issue of this rag. 5 days after this reversal, W filed another motion to increase c/s & H filed a c/c for the recoupment of the $86,250 he paid as add’ll c/s under the ‘98 order which was reversed. In ‘03 the T/C increased H’s c/s to $3,000/mo plus awarded $6,000 in retro c/s, socked him again with $12,000 in atty fees plus $15,000 in appellate fees and denied his recoupment claim. At this point you begin to wonder what H did to so irritate the T/C. Once again H appeals.

    The CA acknowledges that this c/s recoupment is a case of 1st impression. W argued that even tho H overpaid $86,250 in c/s due to the 1st reversal, he waived recoupment. During the 1st appeal H didn’t request the T/C to abate the c/s increase during the appeal per §109.001 or 109.002 (Yea, sure this T/C is going to do that). The CA found that H never waived his claim of recoupment as such is not conditioned upon denial of a request under §109.001 or 109.002. Under the common law principles of money had and received or restitution, H is entitled to recoupment. The CA then reviewed the facts used by the T/C to increase H’s c/s to $3,000/mo and once again found that W had failed to prove a change of circumstances. As H had been paying the increased am’t during this appeal, H is entitled to recoupment of the c/s he overpaid during this appeal. Since W didn’t prevail in this matter, the award of atty fees to W’s atty is reversed for rehearing to see if good cause exists to award such atty fees to the non-prevailing party per A.J.L. (108/414/3). Gee, I wonder what’s going to happen – probably a 3rd appeal.

    Comment – you would think that W or the T/C would learn what is the burden of proof in a modification proceeding and the evidence necessary to sustain that burden but I guess not. As W now owes H over $100,000 in recouped c/s, how does H recover it? A monetary judgment probably isn’t enforceable by contempt (altho if H hadn’t paid, he surely would have been held in contempt) altho it should be and W probably doesn’t have any non-exempt assets to levy on. At $1,500/mo in c/s, offsetting the recoupment against future c/s probably won’t make H whole. A sorry state of affairs especially when you consider the am’t H had to pay his own attys to set aside not one but two horrible examples of a lack of judicial judgment.

  5. Morales v. Morales, No. 04-05-00513-CV, not yet published (CA, San Antonio).

    H & W divorced Jan. ‘94 with a decree whereby W was to pay H $10,000 upon W’s remarriage or the occurrence of other events. W remarried in April, ‘94 but she didn’t pay H despite his Oct. ‘94 written demand. In April ‘05 H filed a motion to enforce to which W filed a defense of limitations. T/C awarded H a $10,000 judgment against W.

    CA reversed. §9.003 says a suit to enforce must be filed within 2 yrs. from the date the obligation matures which was upon W’s marriage in April ‘94, 11 yrs. before this suit was filed. There is a contrary holding in Jenkins (991/44/3) which says the 2 yr S of L doesn’t apply but it fails to say what S of L does apply.

    Comment – Not a really significant case except to note-- who cares whether the 2, 4 or 10 yr. S of L applies? H sat on his backside for 11 yrs. so his suit was barred by any possible S of L. Gee whiz, what a no brainer.