Houston Bar Association - Family Law Section

Gray's Interesting Cases for February, 2006

Updated and presented by David Gray

In the Interest of M.C.C., 49 Tex. Sup. Ct. J. 14.
H & W divorced in ‘93 with H being ordered to pay c/s which he didn’t do. In Dec. ‘01 the A.G. filed an enforcement action requesting a $ judgment against H for the principal am’t of $15,000 in unpaid c/s plus interest of $28,000 which was calculated at 12%. The T/C calculated the interest at 6% as the May ‘01 enabling amendment to §157.265 says unpaid c/s bears interest at 6% on all c/s coming due prior to 1/1/02 for which a ct has not confirmed the am’t due. Since the AG didn’t file suit early enough to have the arrearage confirmed prior to that date, all accrued c/s bears 6% interest. The A.G. appeals.

In a well written and reasoned opinion, the Ft. Worth CA (142/504/3) rejected all of the A.G.’s arguments and affirmed the T/C’s ruling that if unpaid c/s is not confirmed by judgment prior to 1/1/02, the interest on such c/s is calculated at 6%, not the crushing 12% rate espoused by our noble A.G. The CA also refused to follow the contrary ruling by the Dallas CA in A.R.J.(97/833/3) which I suggested should be ignored in Feb. 03. Additionally the CA rejected the Amarillo CA reasoning in Hurd (2003 WL 1961142) which also refused to follow A.J.R. but confirmed the 12% interest using the twisted reasoning that unpaid c/s is a final judgment bearing interest at the rate existing at the time each c/s installment came due (an illogical result criticized by me in June ‘03).

The A.G. appealed to the Supremes which, in a per curiam opinion, reversed. The Supremes ruled that statutes (§157.265) are only applied retroactively if the statutory language indicates the Leg. intended that the statute be retroactive. As the Supremes ruled that §157.265 acts prospectively, any unpaid c/s bears interest at 12% until 1/1/02 when the rate is reduced to 6%. If the unpaid c/s has been reduced to judgment at 12%, the judgment still bears 12% until it is paid.

Comment – How can 9 people read that part of §157.265 which says unpaid c/s which become due before 1/1/02 and hasn’t been judicially confirmed bears interest at 6% does not indicate the Leg’s intent that the statute is to be applied retroactively? I guess the 2 x 4 rule applies to the Supremes. If you are drafting legislation and you intend it to be retroactive, you better say “This statute is to be retroactive and we really mean retroactive, honest.” The Supremes are so wrong it hurts but, having said that, I recognize that they are the Supremes thus the final word on this subject. Yuck! I would be remiss by not mentioning that the ‘02 version of §157.265 was drafted, urged and supported by the A.G. who then turned around and successfully attacked their own handiwork. It must be comforting to be so hypocritically inept.
Hargis v. Hargis, No. 05-03-0818-CV, not yet published (CA, Dallas).
H , W & their kids reside in der Fatherland but W filed for divorce only in Texas as that was H’s domicile when he entered the service. W plead that Tex. didn’t have SAPCR juris. over the kids as their home state is east of the Rhine. H filed a c/c with a SAPCR. H & W then entered an “agreed judgment” providing for custody, visitation, etc. Then W filed an appeal contesting the TC’s juris. to enter any SAPCR orders. Hey, she can’t do that-- it was an “agreed judgment.” She evoked Texas’s juris. by filing here; agreed to the Texas’s juris. per the “agreed judgment”; and she’s estopped by lying behind the log --- Right? Wrong!

You can’t confer juris. by agreement, consent, waiver or estoppel, Dubai Petroleum v. Kazi (12/71/3). The UCCJEA is a jurisdictional statute and not a venue statute. It’s undisputed that Germany is the kids’ home state (they’ve never been in Tex.) so Tex. has no juris. over the kids to enter SAPCR orders. As the SAPCR orders are void, it wouldn’t be fair to affirm the property division as custody and property division may be intertwined. Everything is reversed.

Comment - Probably a correct but unusual result. I can only fault the Dallas CA’s use of the word “void” as it relates to the SAPCR orders. They are voidable, not void.
Haynes v. Haynes, No. 05-04-01007-CV, not yet published (CA, Dallas).
H & W settled their divorce by a MSA by which W received 60% of H’s non-transferable stock options. When W’s atty drew up the decree, he made H a constructive trustee for W’s share of the options; provided very detailed procedures for H’s treatment of the options prior to their exercise by W; and wrote detailed provisions on how the tax liabilities were to be apportioned. H objected to these provisions as they were never discussed during the mediation. T/C signed W’s form of the judgment and H appeals.

Affirmed. The law doesn’t require the parties to agree to all of the provisions of a decree which are necessary to effectuate the parties’ agreement. The cts may supply additional terms to the agreement even if the parties didn’t agree to them so long as the substantive terms of the agreement remain unchanged. McLendon (847/601/2). As the parties’ MSA didn’t supply the detailed mechanics for exercising W’s share of the options, the ct. may supply same if such are consistent with the parties’ intent to divide the options.

Comment – As the devil is in the details, it’s a very close question as to whether these details made a substative change to the option division. I dare say that if this case was in some other CA, a different result may have occurred.
Loria v. Loria, No. 01-05-00380-CV, not yet published (CA, Houston -1st).
W & H (a service man) were divorcing. During trial it was shown that W was entitled to a portion of H’s military retirement. W’s atty knew that if H retired and elected to have a part (if not all) of his retirement converted into disability benefits, those benefits could not be divided by a divorce decree per federal law. Altho a service man might take advantage of this disability conversion to cheat an ex-spouse, it’s usually done for income tax reasons as disability pay isn’t taxable whereas retirement pay is taxable. To prevent this, W’s atty convinced the T/C to include in its judgment provisions which prevented H from converting his retirement benefits into disability benefits. H appeals.

CA reverses. Under federal law (Mansell, 490 U.S. at 583) and Texas law (Ex parte Burson, 615/192/2), a T/C can’t limit or otherwise restrict a service man from exercising his federally granted right to convert part of his divisible military retirement pay (disposable retired pay) into non-divisible disability pay.

Comment - So how can you protect the non-military ex-spouse? From this opinion, you can’t. If you think that this isn’t just, chew on this scenario: W is a retired Texas teacher drawing a TRS pension only while H draws social security only. Upon divorce W’s pension is divisible while H’s pension is not. In fact, case law says the T/C can’t even take into consideration H’s social security payments in the property division. This is true even though during the marriage community income from both parties were paid into the two pension programs. As social security can’t be considered, an objection to any question as to the existence or amount of social security benefits should be sustained. Strange but true! Who says the law is fair?
Naguib v. Naguib, No. 05-05-00496-CV, not yet published (CA, Dallas).
H & W divorced in ’03 with kids. In ’04 H filed for a modification of custody. In the ’05 trial H won custody and was awarded a $7,500 atty fee judgment against W “for legal services rendered in relation to the child and in the nature of c/s;” i.e. the $7,500 atty fee judgment was enforceable by contempt. W appeals.

Reversed. §106.002 allows the award of atty fees but such a judgment is only enforceable as a judgment for debt. Atty fee judgments are only enforceable by contempt if such fees are incurred in a c/s enforcement action.

Comment – There are a bunch of cases out there where T/C’s have found that such atty fees are recoverable as necessaries for the child and are enforceable by contempt. As of today, the CA’s are split on this issue and the Supremes have never addressed this issue. My guess is that necessaries or not, such atty fees incurred in non-enforcement actions are not contempt enforceable even if the T/C says they are in the nature of c/s.

Hale v. Hale, No. 04-05-00314-CV, will not be published— memo opinion (CA, San Antonio).
6 yrs. after H & W remarried, they divorced again. W was designated sole M/C of the parties’ child and H was P/C but he could not visit with his child unless a therapist recommended same. H’s c/s was $642/mo. (20%) but if W was evicted from her home (owned by H’s parents), H’s c/s increased to $1,642/mo. (51% of H’s net resources). During their 2nd marriage, H tithed $50,000 to his church over W’s objection so the T/C ordered H to reimburse W $25,000. H appeals.

CA, in part, reversed, rendered & remanded holding:
1. Although case law says you can’t designate a parent a P/C and then deny all visitation except in an extreme case (Tuel, 252/203/2), conditioning H’s visitation on a therapist’s approval is O.K. However, such an order has to be specific enough to be enforced by contempt filed by H. Here the T/C didn’t name the therapist or provide any guidelines to insure that the child’s best interests would be protected. Remand for clarification.
2. Conditional or contingent c/s increases make the c/s order indefinite and unenforceable. If W is evicted, she can file a motion to modify c/s. Reverse & render.
3. H had a right to tithe to his church unless it was unfair to W using the standards set by Massey (807/391/2). W failed to show that giving away 1/6th of the community gross income was unfair to her. Besides most of the cases authorizing reimbursement for wasting community assets involve H’s spending on his girlfriend, not his church. Reverse & render.
Comment —Assuming H is in the 20% tax bracket, tithing 21% of the net community income seems a little excessive. Guess the CA didn’t want to dodge lightning bolts from on high.