Houston Bar Association - Family Law Section

Gray's Interesting Cases for Dec 2006/Jan 2007

Updated and presented by David Gray

Evans v. Evans, No. 01-05-00604-CV, not yet published (CA, Houston - 1st).
H & W divorced in '80 with 3 kids ages 7, 2 & 1. The decree ordered H to pay c/s until "the child reaches 18." In '04 the A.G. filed an enforcement action against H who defended on the basis that the c/s order became vague once the oldest child became 18. The A.G. then amended requesting clarification. The wage withholding order said c/s ceases "when any child reaches 18." T/C denied clarification as the decree, when read in conjunction, with the wage order, is unambiguous -- 1st child to reach 18 terminates the c/s. AG appeals.

Reversed. The decree says c/s ends when "the child reaches 18." H's c/s obligation is determined by the wording of the decree, not what the wage withholding order says. Since you can't determine in the decree which child reaching 18 ends the c/s, the decree is ambiguous and is subject to clarification.

Comment - As much as it pains me, good job A.G.
Cade v. Stevens, No. 05-05-000387-CV, not yet published (CA, Dallas).
H & W divorced in '71 with 2 kids. H was ordered to pay c/s which he didn't do. In '76 H's parental rights were terminated but in '77 W obtained a $5,747 judgment against H for accrued c/s prior to termination. 27 years later W contacted the AG for enforcement. Rather than allow the AG to do everything, her own atty (w/out AG participation) sought a judicial wage withholding and a cumulative c/s judgment. The T/C issued the wage order and a judgment for $65,000 plus $7,000 in atty fees (how $5,747 went to $65,000 is beyond me). H appeals.

Reversed. The '77 judgment is dormant and can't be revived. §34.001 and §31.006, Tex. Civ. Prac. & Rem. Code. Although the 10 yr. S of L on judgments isn't effective against the A.G., this action was by W without the A.G.'s participation thus the '77 judgment is wiped out.

Comment - An obvious result but why didn't the T/C know this. Question - Since the AG originated the suit, can it now seek judgment against H since the 10 yr. S of L doesn't effect the A.G.?
In re: H.C.S., No. 04-06-00005-CV, not yet published (CA, San Antonio).
M wanted to have a baby but she wasn't interested in men. F agreed to donate his sperm so M could be artificially inseminated. He did, she did and a child resulted. F said he & M had agreed that he would be involved in the child's life. M disagreed so F filed a SAPCR to establish his paternity. M filed a motion to dismiss - no standing. T/C dismissed.

On appeal, the CA held that §1602.702 is clear -- "A donor is not a parent of a child conceived by means of assisted reproduction." Although In re: Sullivan (157/911/3) holds to the contrary, a sperm donor has no standing to file a paternity suit when his sperm is used to inseminate a female not his wife. Sullivan is expressly disapproved.

Comment - O.K. two CA opinions 180º from each other. If a petition for review is filed with the Supremes to resolve this conflict, will they grant it? Who knows. Personally I think H.C.S. is correct.
Skadden v. Alfonso, No. 14-05-00488-CV, not yet published (CA, Houston - 14th).
In '99 H filed suit for divorce and a SAPCR regarding his child; however, W and child had moved to Spain where she had filed for divorce a month earlier. H tried every way he could to get W personally served but he failed except for publication in the local court paper. The Texas divorce was called to trial but W failed to appear. The T/C granted H a divorce but noted on the docket sheet that the T/C had no jurisdiction over the parties' child to determine custody or periods of visitation. Apparently H, an atty, then drew a decree that made H & W JMC of their child and granted H periods of possession. This decree was submitted to the T/C which signed it without comparing it to the docket sheet (unfortunately a common occurrence). No appeal by W. 5 years later H files suit against W for visitation interference, enforcement of the decree and a habeas corpus for possession of the child. W defends on the basis that the '99 decree is void as to SAPCR matters as she was never served. The T/C agreed with her and dismissed H's suit. H appeals.

If there is an inconsistency between the wording of the decree and the docket sheet, the decree wording prevails. W's voidness claim is a collateral attack on a judgment which is not allowed. If the time has passed to file a MNT or a regular appeal, the only way to challenge a final judgment based on lack of service or invalid service is by way of a restricted appeal or bill of review -- neither of which exists in this case. Although there are many cases that say otherwise in dicta, the Supreme's opinion in McEwen v. Harrison (345/706/2) is still good and binding law -- only bill of review or restricted appeal. Reversed.

Comment - Was it Dickens who said, "The law is an ass?" Well in this case it is. This holding rewards a pencil whipper and this shouldn't be allowed. When this goes back to the T/C, I doubt that H is going to get much relief but who knows?
Oops Opinion. Gainous v. Gainous, No. 01-04-0047-CV, not yet published (CA, Houston - 1st).
As I am sure all of you keep back issues of this rag in your law library research section, I am not going to repeat the facts of this case which are outlined in the Sept. '06 issue. W filed a motion for rehearing which was granted. In the original opinion the majority of one (there was one concurring and one dissenting opinion) affirmed the T/C's denied of W's request for relief because W asked for too little. However the CA said the T/C did retain the juris. to clarify and enforce the judgment which lead me to comment, "What does this mean?"

On rehearing the majority and the dissent joined hands to reverse and remand to the T/C and eliminated all this guff about affirming the T/C 'cause W asked for too little. With this change what could have become a huge case became just another pension case where the non-employee spouse gets ½ of everything because of the Supreme's opinion in Reiss (118/439/3).

Comment - I take no credit that my original Sept. '06 negative comments caused the CA's change of heart but I do feel all warm and fuzzy.
Van Driessche v. Ohio-Esezeoboh, No. H-06-220, not yet published (U.S. Dist. Ct., Southern Dist. of Texas-- Houston Div.).
This opinion is too long factually, the names are unpronounceable to this East Texas boy, and I have never read (and won't read) the Hague Convention on the Civil Aspects of International Child Abduction Remedies Act. However if you have a case under the Hague Convention or the ICARA, this is a must reading authored by the only Texas Family Law Certified Specialist sitting as an U.S. Dist. Ct. Judge -David Hittner. It's well written and analyzed by Judge David.
A comedy in two parts titled "What the ____ were they thinking about?"
1. ACT ONE. In the Interest of S.C., H.A.C. and C.C., No. 04-06-00074-CV, not yet published (CA, San Antonio).
  On 9/1/05 F filed a SAPCR in Webb County seeking to be the sole M/C of his 3 kids by a romantic tryst with M. M was served on 9/28/05 with a temp. hearing set for 10/18/05. F showed up with his atty and M appeared pro se. With a court reporter taking all of this down, the T/C called the parties into chambers. Without any evidence being introduced, the T/C asked M if she objected to F being the sole M/C of the kids. M said she objected as F had never been with the kids. The T/C then set the case for final trial 2 weeks later on 11/1/05 (45 days notice - I don't have to give no stinking 45 days notice). The T/C went further and said "Lady if you want to have custody, you need to come to trial with an atty." The T/C then made F temp. sole M/C of the kids granting M only supervised visitation. For reason unknown 6 days later (10/24/05), the T/C cancels the November 1st trial and never rescheduled. On 11/9/05 the T/C signed a final decree saying trial was on 10/18/05 and makes F sole M/C of the kids; M the P/C; and granting M supervised visitation at mutually agreed to times. [This appears to be the flip side of justice delayed is justice denied] Shockingly M appeals.
  
  The law school question is "Just how many reversible errors did the T/C commit in this case? 10? 25? 50? 100? Well the San Antonio CA just picked two - (1) Denial of due process as M never had a chance to present evidence or cross-examine witnesses (of course not-there were none) (2) The T/C couldn't deviate from the JMC presumption because there was NO EVIDENCE.
  
  Comment - Boy I thought Hidalgo County was bad. Should you ask "What would Jesus do in this case?" I'll tell you. He'd do what this T/C did as the first name of the presiding judge of the T/C is Jesus. Webb County must have a hell of a bar association 'cause they obviously prohibit pro se litigants.
2. ACT TWO. In re: Williams, No. 14-06-00946-CV, will not be published - memo opinion (CA, Houston - 14th).
  H & W divorced. Sometime thereafter they both filed a motion to modify which resulted in the T/C issuing an injunction against Relator. One day after signing the injunction, a contempt motion was filed which was served on the Relator who did not show up for the hearing. A capias was issued and Relator was arrested and held overnight in jail so Realtor would be present at the contempt hearing the following day. Relator was held in contempt, sentenced to 180 days in jail and spent 2 weeks in jail. Relator was released by the CA on an emergency writ of habeas corpus filed by an atty appointed by the T/C (after incarceration) as the Relator was indigent. The CA found that the contempt order was void so the Relator was set free. Why?
  1. Relator is a 17 yr. old high school senior girl.
  2. Her parents filed for the injunctions probably because they couldn't control her so they wanted a 3rd party to do so- the T/C. Relator wasn't at the modification/injunction hearing- I don't know if she was even aware of the hearing.
  3. Relator was enjoined to timely attend school classes; remain on the campus during school hours; stop associating with certain named persons; i.e. the bad crowd; and obtain summer employment.
  4. Relator was never served with a writ of injunction prior to the contempt hearing.
  5. Relator told the T/C at the contempt hearing no one even told her what she was injoined from doing or not to do.
  6. The contempt motion was filed, sua sponte, by the T/C.
  7. The contempt motion was filed because the T/C "had been informed on good authority" that the Relator had violated "one or more" of the injunctions.
  8. The contempt motion did not specify exactly what Relator did or didn't do which violated any one specific injunction.
  To quote the CA "The infirmities in this case are numerous, though without further discussion, the lack of notice to Relator establishes that the court's contempt judgment is void."
Comment - Normally I would go bonkers on this case but I know the T/C and believe him to be a good judge. I suspect he appointed the girl an attorney when he realized he had gone overboard thus she needed an atty to spring her from jail. We all make mistakes (Once I thought I made one but I was mistaken) but when courts become social workers instead of being judges, problems arise. No good deed or attempted good deed goes unpunished judge thus the reporting of this case.