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Gray's Interesting Cases for January, 2010

Updated and presented by Sallee S. Smyth
  1. In the Interest of R.T.J.N., 2009 Tex. App. LEXIS 8661 (Tex. App. – Beaumont November 12, 2009) (mem. opinion) (Cause No. 09-09-128-CV)

    In November 2005 the Texas trial court signed an agreed order appointing M as SMC and F as PC and providing that Paternal GP’s had the right to exercise F’s visitation with the child subject only to F’s superior right to exercise that visitation himself. At the time of the Texas order M and the child were residents of Arkansas. In 2006 an Arkansas court signed an agreed order terminating F’s parental rights and granting an adoption by M’s new husband. This agreed order further provided that Paternal GF would have certain visitation rights if he withdrew his objection to the adoption, which he apparently did. (For reasons not clearly explained in the opinion the Paternal GM did not participate in the 2006 Arkansas proceeding.) Despite being an agreed order, paternal GF appealed the Arkansas order permitting adoption. While this appeal was pending, Paternal GP’s filed suit in the Texas trial court for termination of their son’s parental rights. Although they conceded that their son’s rights had already been terminated in Arkansas, they argued that the Arkansas order was not entitled to full faith and credit because they had not been given proper notice of the Arkansas proceedings (presumably because Paternal GM was not a participant).

    The Texas trial court, on its own motion, determined that Arkansas was a more convenient forum and declined to exercise any continuing, exclusive jurisdiction that it might have retained in light of the earlier 2005 proceedings. The Texas trial court gave Paternal GP’s the opportunity to bring their action in the Arkansas court within a specified period of time. In December 2007, after the finding of inconvenient forum by the Texas court, the Arkansas appellate court determined that once F’s parental rights were terminated, Paternal GP’s no longer possessed standing to contest the adoption because their rights flowed through F and dismissed the appeal. Paternal GP’s appealed from the Texas order finding inconvenient forum based on their claim that Arkansas had no personal jurisdiction over F and therefore could not entertain any litigation to which he was a party. Further, Paternal GP’s argued that Arkansas law related to grandparent rights was not as favorable as Texas law therefore this made Arkansas an inconvenient forum.

    The Texas COA found that F’s participation in prior Arkansas litigation would confer personal jurisdiction over him in any further proceedings. Further, the child had lived in Arkansas for several years, inferring that evidence regarding the child’s best interest would most likely be there. Further the COA found that any issues concerning Paternal GM’s lack of notice in the prior adoption proceedings would be better addressed in an Arkansas court and that whether or not the Arkansas order could or should be given full faith and credit in Texas was an issue unrelated to a decision on inconvenient forum under the UCCJEA. Overall the COA found that the Texas court did not abuse its discretion in determining that Arkansas was a more convenient forum for the parties’ continued litigation.

  2. In the Interest of R.E.G., 2009 Tex. App. LEXIS 8750 (Tex. App. – Corpus Christi November 12, 2009) (mem. opinion) (Cause No. 13-08-335-CV)

    M (Garcia) and F (Padilla) , an unmarried couple, had a child in 2003. F signed an AOP the day after the child’s birth. The child was given the surname Garcia. F paid child support and routinely visited the child, having initiated a proceeding through the AG’s office to obtain orders for conservatorship, support and visitation. In 2007 when the child was 4 years old, F petitioned to have the child’s name changed to Padilla. The trial court conducted a two day hearing at which both parties testified. The court heard evidence of F’s participation in the child’s life and his family’s involvement and that F was generally consistent in paying child support. M opposed the name change arguing that the child had only been known by Garcia and that it would be more convenient to retain the child’s name for education and medical purposes. At the conclusion of trial the court changed the child’s last name to “Garcia-Padilla.” M appealed, arguing that because F’s verified petition did not request the hyphenated name, the court abused its discretion and further argued that the evidence was insufficient to support any finding that the name change was in the child’s best interest.

    The COA found that the requirements of TFC§45.002(a)(3) are met when a parent’s petition for a name change specifies “a name” even though this name might not ultimately be the same as the one ordered by the court. Given that the trial court is permitted to order a name change which is in the child’s best interest, the COA found that the court is not limited to ordering a name as specified in the pleadings and that so long as the evidence supports that the name change is in the child’s best interest there is no abuse of discretion. The COA found the evidence supported the court’s decision in this case and affirmed the hyphenated name change.

  3. In re Tiffany Sims Cooper, 2009 Tex. App. LEXIS 8673 (Tex. App. – Dallas November 12, 2009) (Cause No. 05-09-995-CV)

    H and W married in 2003. At the time W was a resident physician in Dallas and H was a dental student in San Antonio. H moved to Dallas after graduation and the parties lived there and had 2 children. After the second child, W dropped her residency to become a full time parent. The parties separated in 2008 and W moved to South Carolina with the children to complete her residency. W filed for divorce in Dallas and the court issued agreed temporary orders allowing the move to SC for the duration of her residence which was expected to conclude in June 2009. While these orders were in place, H visited SC to see the children multiple times. When her residency began winding down, W attempted to find a job in the Dallas area. The only job offer she received was in North Carolina. She filed a motion to modify the temporary orders which the AJ granted in April 2009. She accepted the job, signed a contract and bought a home in NC. H appealed the AJ ruling and the trial court conducted a de novo hearing in June/July 2009. During the hearing the trial court made several comments questioning whether or not W had used “extreme efforts” to find a job in the Dallas area and that this should have been her priority “by leaps and bounds.” At the conclusion of the hearing the trial court ordered the W to relocate to Dallas by October 1, 2009 and ordered that H would be required to pay an additional $2,000 in child support for 4 months to allow W an opportunity to reestablish herself in the area.

    W filed a petition for writ of mandamus claiming that the trial court had erroneously applied a higher standard than the law allowed by imposing upon her an obligation to use “extreme efforts” to find a job in the Dallas area and failing to consider all of the other factors which supported the idea that her relocation to NC was in the children’s best interest. The COA examined the evidence in light of the many factors which the court should consider, including the financial security of the custodial parent, and determined that the trial court did in fact abuse its discretion by order M’s relocation. Mandamus granted.

  4. In the Interest of H.G.L. and A.R.L., Minor Children, 2009 Tex. App. LEXIS 8810 (Tex. App. – Houston [14th Dist.] November 17, 2009) (mem. opinion) (Cause No. 14-08-0087-CV)

    H and W were married in 1978. They divorced in 1990 and H was ordered to pay support for their two children. W remarried. In late 1993 the children (ages 11 and 13) advised H they no longer wished to visit. W presented H with an affidavit of relinquishment and advised H that she wanted the step-father to adopt the children. In March 1994 H executed the affidavit, waiving his rights to any notice of the proceedings. H ceased paying child support and heard nothing further from anyone until one of the children (then age 20) called him in 2005. Unbeknownst to H, the W’s termination/adoption proceeding had been DWOP’d in 1995 and never finalized. In March 2007 H received a call from a child collection agency and received notice that liens had been placed on his house and car for failure to pay support in the amount close to $90,000. In response, H filed a motion to confirm his c/s arrearages, requesting that the amount be confirmed as zero based on an estoppel argument upheld in Kawazoe (849 S.W.2d 906) and LaRue (832 S.W.2d 387) [which are both cases in which a father executed an AOR, the mother never went through with the termination, but then forgot to mention that to the father and later tried to recoup arrearages]. W was served but defaulted. Both the AJ and the trial court, on de novo appeal denied relief. H appealed.

    The COA determined that while TFC §157.263(a) might permit an obligor to initiate the proceedings, H’s motion should not be construed as a motion for enforcement because it did not seek any of the relief contemplated by that section. Further the COA held that because the court has no authority to reduce or modify the arrearages, the court was not at liberty to simply find them to be zero. The COA further found that Kawazoe and LaRue conflict with precedent established by the 14th COA that you cannot modify arrearages. Judgment affirmed.

  5. Velasco v. Avala, 2009 Tex. App. LEXIS 8943 (Tex. App. – Houston [1st Dist.] November 19, 2009) (Cause No. 01-07-1053-CV)

    H and W, citizens of Mexico, married in 1996 and had one child in 1998. In late 2003 H came to Texas to visit family and W followed. In early 2004 H told W he planned to stay which escalated into a fight and police were called. W, who spoke no English, was removed and taken to a women’s shelter where she remained for 3 months. In the meantime H and the child disappeared. W having no money and on a soon-to-expire visa, went back to Mexico and hired counsel who brought a Hague proceeding. Thereafter, H filed a petition for divorce identifying W by something other than her true name but stating her address in Mexico. H sought no service. Thereafter H amended and requested service by CMRRR which was sent but returned unclaimed. Then H amended again and sought termination of W’s parental rights. He also requested citation by publication and supplied an affidavit which stated that he had attempted to personally serve W without success. The court permitted citation by publication in the Daily Court Review, a Harris County, Texas legal publication. The trial court appointed an ad litem to represent W on publication and an amicus attorney for the child. The ad litem for W sent some discovery to H and attempted to contact the Mexican consulate for help without success. At the default hearing the court questioned whether all reasonable efforts had been made to serve W and the ad litem expressed some concerns about H’s full disclosure. Nevertheless the court granted the divorce, divided property and terminated W’s parental rights. Two years later, W filed an unverified MNT on the 2 year anniversary under TRCP 329 which permits such motions to be filed within 2 years when service is by publication. She was not able to file her verification under several days later. The trial court denied the MNT and W appealed.

    The COA found that a person who appears through an ad litem after publication does not “appear by an attorney of his own selection” and therefore qualifies to file the MNT under TRCP 329. The COA further determined that service on a defendant in Mexico is governed by the Hague Service Convention which preempts inconsistent methods of service under state law. Under the Hague Service Convention, service by mail directly to the party is not permitted, but instead it must go the Central Authority designated by Mexico first. Therefore the COA rules that efforts to serve W by CMRRR did not comply. The Convention however does not speak to citation by publication, but is does require that service be in Spanish for persons being served in Mexico. The COA noted that publication in English in a Texas newspaper when the defendant is known to be in Mexico (by admission in H’s affidavit) does not comport with Convention requirements. Because there was ultimately no valid service, the trial court never acquired personal jurisdiction over the W and the resulting judgment was void. The COA noted that normally, appearance by counsel at the hearing waives defects in service, however because the court never acquired personal jurisdiction over her, its actions in appointing an ad litem to represent her interests and everything that flowed from this were a nullity. The COA also found that the TFC§161.211 six-month bar to challenge termination proceedings also did not preclude W from challenging the order more than a year and half late because this ruling would effectively ignore the provisions of the Hague Service Convention in favor of state law. Because W has now appeared by filing a MNT without special appearance, the case is reversed and remanded for a trial on the merits, but without the need for any additional service upon the W.

  6. In the Interest of K.L.W., 2009 Tex. App. LEXIS 9021 (Tex. App. – Dallas November 23, 2009) (Cause No. 05-08-1298-CV)

    H and W married in 1996 and thereafter had a child. In 2007, W had an affair and moved out of the residence and in with her married boyfriend who had a history of drug use. H filed for divorce and sought primary custody. After a bench trial the court granted the divorce on grounds of adultery and awarded H SMC with the unrestricted right to determine residency. W filed a MNT and the court modified the judgment to appoint the parties as JMC but continued H’s right to determine domicile without geographic restriction. W appealed and challenged only this part of the trial court’s ruling.

    The COA analyzed the evidence based on the factors established in Lenz (79 S.W.3d 10) and found the evidence sufficient to justify the trial court’s decision. In an interesting footnote (n. 3) the COA indicated that H had in fact moved to Wyoming with the child after the decree was signed but noted that the court of appeals should not reevaluate the trial court’s original determination of who should determine the child’s domicile in light of a particular contemplated or subsequent relocation.” Judgment affirmed.

  7. In the Interest of B.A.W., 2009 Tex. App. LEXIS 9043 (Tex. App. – El Paso November 24, 2009) (Cause No. 08-07-204-CV)

    H and W, living in Ellis County, were appointed JMC of their only child and W was given the right to establish domicile. She moved to Denton County and remarried. H filed a MTM and was granted the right to make educational decisions for the child limited to a specific private school in Dallas where both parties worked. H was ordered to pay school tuition and related fees and expenses in lieu of child support. W refused to cooperate with the child’s enrollment and the child was never enrolled. Then W filed a MTM seeking the right to make educational decisions, to enforce child support, seeking retroactive support and attorney fees. After trial the court gave W the right to make school decision, ordered H to pay support, denied W’s request for retroactive support, modified the location for transfer of the child for visitation and denied fees. The trial court ordered the visitation transfer to take place on a street corner in downtown Dallas outside the building where both parties worked. W appealed.

    Because of the tension and animosity between the parents, the COA determined that the trial court acted within its discretion to pick this location for the exchange. The COA further found no abuse of discretion in any of the other rulings.

    Comment: We have all read opinions that include a statement about how the trial court is the sole judge of the credibility of the witnesses because they alone can feel the forces at work in the courtroom. Cudos to Justice McClure who re-writes this sentiment in an honest, no-holes barred manner as follows: “Trial courts are vested with broad discretion in suits affecting the parent child relationship for one very important reason. Parents get divorced. They are often angry, bitter, vengeful, and hostile towards one another. Sometimes they act in their own best interest rather than in the best interest of their child. The child may become a ping pong ball in a game of which parent can hurt the other more, even if the child gets hurt in the process. The trial court has the ability to gauge parental behavior and absorb the subtle nuances of righteous indignation played out in the judicial spotlight. That judge had the ability to see the fire in the eyes, hear the anger in the voice, and feel the sincerity in the heart. We [the appellate court] do not have that luxury. “ Well said!

  8. Quigley v. Willmore, 2009 Tex. App. LEXIS 9076 (Tex. App. – Beaumont November 25, 2009) (mem. opinion) (Cause No. 09-08-517-CV)

    H and W married in Canada in 1999 and had one child. W and the child remained in Canada until 2005. For the majority of this time, H did not live with them as his work required him to travel extensively to the US and other countries. After some marital difficulty, the parties agreed to try and live together in Texas in a house purchased by H in 2004 as rental property. This lasted from August 2005 to June 2006 when W and child returned to Canada. In November 2006, H filed for divorce in Texas the same day he was served with a Canadian divorce petition. W filed a special appearance, plea to the jurisdiction and request to defer based on inconvenient forum, all of which were denied. TO’s were issued naming the parties JMC and ordering H to pay c/s. The Canadian court dismissed W’s divorce because she did not meet residency requirements but she refilled. In 2008 the Canadian court acknowledged the parallel Texas proceeding but assuming jurisdiction. The Canadian court issued orders giving W custody and making orders for visitation in the US and Canada. W did not attend the TX trial and her counsel announced not ready and asked to withdraw. The trial court denied withdrawal and proceeded to trial. H announced that he was withdrawing all requested relief relating to custody and that he was in agreement that these matters should be deferred to the Canadian courts. The trial court acknowledged this but later entered a decree which appointed the parties as JMC, incorporated most of the terms of the Canadian orders, but left some out and added in other terms not present. Further the court divided the property and awarded H a $100,000 judgment against the W which was designed to represent the H’s interest in the market value of horses the parties had raised in Texas but which had been moved back to Canada with W. W appealed.

    The COA found that because H had withdrawn his SAPCR relief in favor of the Canadian court’s jurisdiction, the trial court erred by including provisions within the decree that conflicted with or added to the rulings of the Canadian court. Further the COA found that the evidence was insufficient to support the money judgment against the W because the H failed to provide any documentary evidence supporting his alleged value of the horses or the sales price of any horses sold despite his testimony that he had this information. The COA noted that while an owner may be qualified to testify as to value, the COA felt it was hard to justify using a money judgment to achieve an equitable division without proper evidence of the value of the estate. The divorce was affirmed but all other matters were reversed and remanded.

  9. In the Interest of M.K.S.-V., 2009 Tex. App. LEXIS 9167 (Tex. App. – Dallas December 1, 2009) (Cause No. 05-08-568-CV)

    Note: The original opinion issued on August 11, 2009 (and reported in the September 2009 Interesting Cases) has been withdrawn and replaced by this new opinion reaching the opposite result on a standing issue under TFC§102.003(a)(9).

    Karen and Tammy (aliases) met in 1997 and began living together in 1998. They discussed having a child and received counseling. In 2003 Tammy became pregnant through a sperm donor. The child was born in May 2004 and co-parented by Karen and Tammy until August 2005 when Tammy and the child moved out. After separation, Tammy agreed that Karen could visit regularly and they set up a visitation schedule. The schedule allowed visits overnight once a week and alternate Sunday afternoons during the school year and Thursday afternoons during the summer and some holidays. This schedule continued from August 2005 to April 2007 when Tammy stopped the visits when she learned that Karen had accessed the child’s school records against Tammy’s instructions. The following month Karen filed suit seeking to be named a JMC or in the alternative seeking to adopt the child. Karen asserted standing under TFC 102.003(9) (person having actual care, custody and control for 6 months ending not more than 90 days prior to suit). Karen asserted that she was a parent by estoppel and had standing to sue for adoption under TFC 102.005(3) (actual possession and control for at least 2 months during the three months prior to suit). Tammy filed special exceptions and challenged Karen’s standing. After evidentiary hearings before the AJ and eventually the presiding judge, the trial court determined Karen had no standing to seek conservatorship but did have standing to seek adoption, but not under the statute Karen relied on. Instead the court found standing to adopt under TFC 102.005(5) (person with substantial past contact with the child sufficient to warrant standing). The court ordered Karen to amend her pleadings to seek adoption only. Karen amended and sought adoption under TFC 162.001; adoption by estoppels and breach of contract based on denial of visitation under the visitation agreement. Tammy then moved to dismiss the adoption claim because Tammy’s rights had not been terminated, Karen and Tammy were never married and Karen was not a step-parent, and Tammy had not and would not consent to adoption. Tammy also sought to dismiss the breach of contract claim because it was a conservatorship claim in disguise and Karen had not standing to pursue this. After these arguments the trial court dismissed all of Karen’s claims. Karen appealed.

    The COA acknowledged that standing may not be conferred by waiver, estoppel or consent except in two limited cases which did not apply here. In the original August 11, 2009 opinion the COA rejected Karen’s argument that the possession agreement gave her standing, determining that although it did have some attributes of an SPO, it did not confer any rights or powers upon Karen to have control or decision making authority for the child. In the new opinion the COA has determined that the parties’ agreement for visitation was intended to be something more than a "temporary" arrangement and evidences an intent that the child "occupy Karen’s home consistently over a substantial period of time" which is sufficient to confer standing under TFC§102.003(a)(9). Because Karen has standing to pursue conservatorship, the COA also determined that the trial court erred when it dismissed Karen’s claim for breach of the possession agreement without a trial on the merits. The COA affirmed the trial court’s decision to dismiss the adoption claim because “consent” of the existing parent is a requirement for adoption under TFC 162.001 or adoption by estoppel, independent of the requirement for standing, and no such consent existed in this case. Judgment of trial court dismissing adoption affirmed, all other rulings reversed and remanded.

  10. Gillin v. Gillin, 2009 Tex. App. LEXIS 9187 (Tex. App. – San Antonio December 2, 2009) (Cause No. 04-09-119-CV)

    H and W married in 2004. While married, H served 4 years in the military out of 25 years of service. After retirement H and W divorced and W was awarded a portion of H’s retirement benefits (8.1395% or $227.99/month which ever is greater). The decree included terms which prohibited H from making any election that would reduce the amount of retired pay awarded to W and from making any election to receive disability benefits in lieu of retired pay. H appealed claiming that this provision violated USFSPA by restricting a service members future right to waive retirement and elect VA disability benefits. H also claimed that the terms which prohibited reduction of W’s award below $227/month likewise violated federal law.

    The COA held that because a divorce decree cannot prevent a military retiree from doing that which federal law allows him to do, the court erred in including terms which prevented H from waiving retirement in favor of disability however because the terms which awarded W her share only awarded her a percentage of retired pay, H could still make future elections without violating the decree because W would simply be awarded a percentage of the reduced amount, even if that amount was zero. The COA modified the decree to delete the objectionable terms and otherwise affirmed the decree.

  11. In the Matter of the Marriage of Fillingim, 2009 Tex. App. LEXIS 9293 (Tex. App. – Amarillo December 3, 2009) (mem. opinion) (Cause No. 07-08-144-CV)

    Note: The court’s original opinion dated March 24, 2009 (as reported in the April 2009 Interesting Cases) is withdrawn and a new opinion substituted.

    H and W were married in 1970. During marriage H’s parents deeded various mineral interests to him alone but H and W jointly executed various oil and gas leases pertaining to these properties. In 1981 W filed for divorce. H did not participate in the proceedings. A decree was signed which specifically awarded property to each party according to attached schedules and the decree contained a residual clause awarding each spouse a "½ interest in all other property or assets not otherwise disposed of or divided herein." The decree did not specifically award the mineral interests. In 2006 H filed a proceeding to clarify the decree under TFC Chapter 9 as it affected these interests and a suit for declaratory judgment seeking to have the interests declared as his separate property. The cases were consolidated and tried. Dan claimed that the mineral interests had been gifted to him and were therefore separate property and as a matter of law could not have been included in the residual clause because the court has no power to divide his separate property. The trial court agreed and granted judgment for H. W appealed.

    The COA originally determined that the residual clause was broad enough to encompass a division of the mineral interests and since these assets had already been divided, an order under Chapter 9 could not substantively modify that division and re-award these assets completely to H. In its original opinion the COA determined that the prohibition against divestiture of s/p is not jurisdictional but instead is merely a mistake that would make an order voidable and not void and the proper way to attack such an award was by direct appeal, which did not occur in this case at the time of divorce. Accordingly, the COA originally reversed the trial court’s judgment and rendered a modified judgment confirming the equal award of the mineral interests to H and W. On rehearing the COA determined that the decree unambiguously divided only the community estate of the parties and since the evidence was sufficient to support that the mineral interests were in fact gifted to H, as his separate property these mineral interests were not included within the original decree. Further, the COA noted that a clarifying order under Chapter 9 may not be used to make a substantive change in the decree. Finding that the trial court did not intend to award W any portion of the mineral interests at the time of the divorce the COA in the new opinion affirms the decision of the trial court awarding all of the mineral interests to H.

  12. In the Interest of J.J.J., A Child, 2009 Tex. App. LEXIS 9362 (Tex. App. – Houston [14th Dist.] December 8, 2009) (mem. opinion) (Cause No. 14-08-1015-CV)

    JJJ was born in 2005. In February 2008 an order was signed in the 315th District Court granting the adoption of JJJ by F. Two weeks later L, an unrelated adult, filed an original suit for JMC of the child in the 257th District Court. L asserted standing based on her actual care, custody and control of the child for at least 6 months. F filed a motion to dismiss L’s suit, challenging her standing and further challenging jurisdiction in light of the prior adoption. Further, at the hearing F’s attorney complained that venue of the SAPCR was improper in Harris County. After a hearing the trial court granted the motion to dismiss, questioning whether the SAPCR suit might be construed as a collateral attack on the prior adoption order. L appealed.

    The COA determined that it was improper to dismiss on a theory of "collateral estoppel" because L was not a party to the adoption proceeding. The COA further determined that it was improper to dismiss on a theory that L was attempting to collaterally attack the adoption decree because L’s SAPCR did not challenge F’s role as a parent, it merely sought to assert L’s own alleged rights to the child. Finally, the COA held that the venue arguments did not substantiate dismissal because there was no evidence offered in support of these arguments and they were not “jurisdictional.” Judgment reversed and remanded.

  13. Zavala v. Schexnayder, 2009 Tex. App. LEXIS 9331 (Tex. App. – San Antonio December 9, 2009) (mem. opinion) (Cause No. 04-09-318-CV)

    H filed suit for divorce in San Antonio. The clerk’s office prepared citation and delivered it to H’s counsel who then mailed it to W in El Paso. W signed for the delivery. The officer’s return portion of the citation was never signed and consequently the return was not verified as required by TRCP 107. H obtained a default divorce giving him primary custody. W filed a motion for new trial alleging defective service which was denied. W appealed.

    The COA reversed finding that all parts of service must strictly comply with the rules in a default situation and no presumptions as to valid service can be made. Because there was no verified return, service was defective and the court did not acquire jurisdiction over the W to proceed with the divorce.

  14. McCaskill v. McCaskill, 2009 Tex. App. LEXIS 9391 (Tex. App. – Corpus Christi December 10, 2009) (mem. opinion) (Cause No. 13-08-122-CV)

    Note: The original opinion issued October 15, 2009 (reported in the November 2009 Interesting Cases) is withdrawn and a new opinion is substituted. The ultimate results of each opinion are the same but to the extent that you may seek to rely on any part of the original opinion you should note that it has been withdrawn and replaced. The November 2009 summary is repeated below for your convenience.

    H and W were married in 1999. In 2001 H filed for divorce and W signed a waiver. Subsequently W filed an answer. The case was set for trial and W filed for a continuance but on the day of trial announced that she was ready to proceed and a divorce was granted that same day. The decree provided that the parties do not own any community property other than personal effects. The decree did not mention confirmation of separate property to either spouse. In April 2006, approximately five years later, W filed a petition for post divorce division of property alleging that the 2001 decree failed to divide H’s retirement benefits. H filed an answer and special exceptions. In August 2006 W filed a petition for divorce against H alleging a common-law marriage beginning in July 2001 immediately following the prior divorce. Both suits were consolidated and tried together. As to the undivided property claim H testified that he did have a 401K plan at the time of the 2001 divorce but he was unwilling to concede that it was community property. There was conflicting evidence regarding the common law marriage. The trial court determined that the language of the 2001 decree which found that no community property existed was equivalent to a finding that there were no community property retirement benefits to divide and therefore denied the Chapter 9 relief. The Court found no common law marriage. W appealed.

    In its original opinion the COA held that W carried the burden to establish that property which existed at the time of the 2001 divorce remained undivided and that because it was possible to conclude that H’s retirement benefits were found to be H’s separate property in 2001 and therefore not mentioned in the 2001 decree, it was not error for the trial court to deny W’s claims. (This holding is unchanged in the new opinion.) Because of the conflicting evidence presented on the common law marriage claim, the COA found no abuse of discretion in denying the existence of a marriage. (This holding is unchanged in the new opinion) Affirmed.

    COMMENT: This case should make every lawyer stop and think before they draft a decree which includes only the simple finding that "no community property exists other than personal effects" because it seems in doing so that you create an inference that all other property must have either been separate property or simply did not exist which greatly undermines a future Chapter 9 suit to divide property actually omitted from a decree.

  15. In re Provine, 2009 Tex. App. LEXIS 9781 (Tex. App. – Houston [1st Dist.] December 10, 2009) (Cause No. 01-09-769-CV; Cause No. 01-09-770-CV)

    H and W entered into a mediated settlement agreement which contained a provision that the mediator would subsequently arbitrate any disputes regarding drafting, interpretation and/or enforcement of the MSA. The MSA was incorporated into a Final Decree of Divorce and thereafter W filed a suit to enforce the decree, complaining that H had violated various provisions of the MSA relating to delivery of property and other matters. H filed a motion to compel arbitration of the enforcement issues. W argued that the arbitration clause should not apply claiming that the same person may not serve as mediator and arbitrator under the holding of Cartwright (104 S.W.3d 706) The trial court denied the motion to compel arbitration finding that the MSA had merged into the decree and therefore post-judgment matters concerning enforcement would be handled by the trial court. H filed an interlocutory appeal and petition for writ of mandamus which were consolidated.

    The COA held that the W’s claims for relief within her motion for enforcement fell within the scope of the arbitration agreement contained within the Final Decree. Further because the parties had agreed to that the mediator would also serve as arbitrator this fact was not a defense to the enforceability of the arbitration agreement itself. The COA reversed the trial court’s order denying arbitration with instructions to grant the motion.

  16. In the Interest of H.J.W. and M.E. W., Children, 2009 Tex. App. LEXIS (Tex. App. – Dallas December 11, 2009) (Cause No. 05-08-474-CV)

    H and W were divorced in 2006. The decree ordered H to pay child support of $606/month for two children as well as a specified sum for medical support. In 2006 H filed a MTM seeking termination of his c/s obligation because of a change in possession of the children. In early 2007 filed a second MTM asking for termination of c/s because he had been diagnosed with stage 4 cancer. W subsequently filed a MTM seeking supervised visitation. While the case was being tried, H received notice from the Social Security Administration (SSA) that he was eligible for disability benefits and further that each child was entitled to benefits dating back to his application in 2006. Each child was awarded a lump sum benefit just over $7,500 for the period August 2006 to August 2007 and thereafter each child received a monthly payment of $593. H asked the court to reimburse him for the child support that he had paid to W during the period of time covered by the lump sum SSA award. At the conclusion of trial the court abated H’s monthly c/s obligation beginning in October 2007, ordered H to continue reimbursing W for medical insurance and uninsured expenses and denied H’s request for reimbursement. H appealed.

    The COA held that while an obligor must be given credit for SSA payments made contemporaneously with the obligor’s c/s payments (TFC §154.132), there is no authority that requires the court to reimburse H for the child support he paid during the "lump sum" coverage period. Further the COA determined that medical support is separate and distinct from the amount due under the c/s guidelines and no authority required the court to abate H’s obligation for these amounts or give credit for these amounts due to SSA disability payments. Judgment affirmed.

  17. In the Matter of the Marriage of Hess, 2009 Tex. App. LEXIS 9515 (Tex. App. – Amarillo December 15, 2009) (mem. opinion) (Cause No. 07-08-441-CV)

    To resolve their divorce proceeding, H and W enter into an AID which includes contingent terms specifying that if H is deployed with the US Army, specified third parties will have the right to exercise H’s visitation with the child. Before a decree was entered, third parties attempted to exercise visitation based on their claim that H had been deployed, although he had only been sent to North Carolina. W filed a motion to clarify the agreement asking the court to determine what constitutes "deployment." The court heard evidence and entered a decree based on the parties’ AID, adding terms that defined "military deployment" as an assignment outside the continental United States or military duty ordered for a period of more than 6 months during which H is not provided the option of being accompanied by the child and where deployment is in a location which access to the child is not reasonably possible (tracking the definition under repealed TFC §153.3161). The decree also required written notice of deployment before third parties were allowed to exercise H’s rights of possession. The court made no specific finding that H was not deployed but based on the terms included in the decree, this finding was implied. H appealed.

    The COA reviewed the evidence which established that W and child had actually lived with H on base in NC for a period of time and that since the divorce had been filed, W had taken the child to NC to visit H. The COA determined that these facts demonstrated that H had the option of being accompanied by his child while stationed in NC thus he failed to meet the statutory definition of deployment and the implied finding that third parties could not invoke H’s visitation was affirmed. Based on agreements made between the parties during oral argument, the COA struck the portion of the definition which limited deployments to those outside the US.

  18. Marcus v. Smith, 2009 Tex. App. LEXIS 9599 (Tex. App. – Houston [1st Dist.] December 17, 2009) (Cause No. 01-09-461-CV; Cause No. 01-09-702-CV)

    M and F are JMC’s of their child. Under the parentage order, F has certain visitation rights at Hanukkah and M has certain rights at Christmas. In 2008 M made plans to travel with the child to Mexico and through a series of e-mails M and F negotiated what they thought was an agreement for M to take the child without interfering with F’s rights for Hanukkah. When M realized she had miscalculated the dates and that her trip would interfere with F’s possession, she offered to trade other dates. F indicated his willingness to agree only if M would make some other concessions regarding visitation in the future. M would not agree and F withdrew his consent for M to travel with the child on the dates specified. M went on the trip anyway and F filed a motion for contempt. The trial court refused to hold M in contempt finding that she had not intentionally violated the order. The trial court awarded M trial attorneys fees as well as appellate fees, the latter being ordered paid by a date certain. The court asked the parties if they wanted to withdraw theiry exhibits, which they did. When F sought to readmit these exhibits when he later decided to appeal, the trial court refused to re-admit them. F filed an appeal challenging the award of attorney’s fees and he also filed a petition for writ of mandamus challenging the award of appellate fees and the trial court’s refusal to re-admit his trial exhibits. M sought to dismiss the appeal, arguing that the COA has no jurisdiction to consider a contempt judgment by direct appeal.

    The COA determined that while this is correct, F was not challenging the trial court’s failure to hold M in contempt on appeal but instead he was challenging the award of attorney fees and the quashing of trial exhibits, both of which can be reviewed on appeal. Further the COA acknowledged that mandamus is the appropriate vehicle to attack appellate fees awarded in a temporary order pending appeal under TFC§109.001. Ultimately the COA held that F waived his right to complain about trial attorneys fees because he never objected to them in the trial court. Further, the COA held that the appellate fees awarded to preserve and protect the safety and welfare of the child under TFC §109.001 are appropriate where they were awarded to the party bearing primary responsibility for the child and for the care and upkeep of the child’s principal residence. The only part about the award that was improper was the trial court’s failure to make the award of appellate fees conditioned upon an unsuccessful appeal therefore instead of reversing the order the COA simply modified it. On mandamus, F did challenge the trial court’s refusal to hold M in contempt. The COA found that since the evidence was disputed as to whether M’s violation was intentionally, the trial court did not abuse its discretion in choosing to believe M. As to the trial exhibits, the COA determined that because these various exhibits were still made a part of the appellate record as attachments to various pleadings, which the COA relied upon, the trial court’s refusal to re-admit them was not harmful to F. Mandamus denied. Order affirmed as modified.