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Gray's Interesting Cases for February, 2007

Updated and presented by David Gray
  1. Lee v. Lee, No. 08-05-00181-CV, not yet published (CA, El Paso).

    H & W divorced in '99 with 2 minor kids. The decree stated that the "parties have agreed that H shall pay W c/s of $500/mo./child..." but there was no order to pay c/s. The decree went on to state the standard boiler plate language of "It is ordered and decreed that each party shall execute all instruments necessary to effect this decree...and each shall have all appropriate and necessary writs, process, etc. to accomplish the execution and final disposition of this judgment." Sometime later W filed a motion to clarify and enforce the c/s provisions. The T/C did so by saying that "H is ordered and directed to pay W c/s of $1,000/mo. until ______ when the c/s shall be reduced to $500 until _______ when c/s ceases." H appeals claiming the original decree was a contract between he and W, not a court order, thus the T/C couldn't turn a contract into a court order per §157.421. Additionally the T/C can't make contract into a court order as to do so would be a impermissible substantial change in violation of §157.423. W argues that when the decree ordered that each party shall have "...all...process...to accomplish the execution and final disposition of the judgment", this was enough to make a valid c/s order altho unenforceable.

    The CA agreed with W. The CA ruled that it is a common error not to include decretal language ordering someone to pay c/s and by such error the c/s obligation is not enforceable by contempt. However, if you do not allow a T/C to clarify a non-ordered c/s obligation to make it an ordered c/s obligation, the passage is §157.421 becomes pointless. Huh? As to H's argument that W's enforcement remedy is by contract suit, the CA wasn't impressed because §154.124(c) prohibits contractual enforcement of a c/s order.

    Comment - Baloney. This opinion is smoke and mirrors to justify a pre-determined result. Everyone agrees that the c/s agreement in the decree wasn't an order. Everyone agrees that there was an order that W shall have all writs and process to accomplish the execution and final disposition of the judgment. The CA ignores the fact that these two provisions are not the same. There's not a word about c/s in the ordered provision of the decree and you can not reasonably imply that the ordered provision incorporated the contractual c/s provision. O.K. so the T/C can clarify an order. What order? There's only one order and it relates to the final disposition of the judgment- not c/s. As to the CA's rejection of the H's contractual remedy argument, §154.124(c) says you can't enforce a c/s order as a contract. But in this case there was no c/s order, only a contract which is enforceable as such. This is a poorly reasoned opinion and should be ignored but if you are trying to clarify a contractual c/s provision so you can enforce by contempt and you have similar boiler plate order language maybe you can succeed if you live at the conjunction of Texas, Old Mexico and New Mexico.

  2. Garcia v. Garcia, No. 04-05-00717-CV, not yet published (CA, San Antonio).

    At the temp. hearing W agreed that if H would pay her $150/mo as support, when the divorce concluded H would be reimbursed for all support paid by him from W's share of the division of the community estate. This was made a part of the temp. order. Upon final trial W renegged and objected to any such reimbursement (Everyone knows that a W always has the right to later change a deal if she finds it advantageous to her). Well, the T/C (obviously one of those silly males who believes a deal is a deal) did exactly what W had earlier agreed to do. W appeals.

    CA affirms. The T/C had a right to take into consideration the amount of temporary support paid when dividing the parties' community estate, Herschberg (994/273/2); thus, the T/C didn't abuse its discretion by enforcing W's previous agreement as contained in the temporary order.

    Comment - Never allow a client to do this 'cause it's going to be your fault at the conclusion of the divorce. If your client insists, get a CYA letter.

  3. Gentile v. Gentile, No. 13-04-167-CV, will not be published-- memo opinion (CA, Corpus Christi).

    H & W divorced in June '98 with a AID that provided that H would sell a car (a Ferrari) and the household furnishings in the Utah condo and the proceeds would be split 50-50. H didn't sell either so in April '02 W filed a motion to enforce requesting a monetary judgment for 50% of the value of the items not sold. (Query- as the value of these items varied over the 4 yr. period, what value do you use to compute damages? Case law says you use the highest value during the 4 yr. period) H defended on the basis that §9.003(a) says you have 2 yrs. to sue to enforce the division of tangible personal property in existence at the time of divorce. As W waited almost 4 years before suing, her suit was barred by the 2 yr. S of L. T/C awarded W a $82,000 judgment against H so he appealed.

    CA affirmed. The F/C doesn't define "tangible personal property" but the federal tax code says personal property is something that can be seen, touched, felt, weighed or is otherwise perceptible to one's senses. Clearly the car and furnishings are tangible person property but W had no ownership interest in these properties. She only had the right to 50% of the proceeds, i.e. money, arising from the sale of these items of tangible personal property. Money is not tangible personal property thus the 2 yr S of L in §9.003(a) does not apply to W's suit.

  4. In the Interest of M.K.R., No. 2-05-240-CV, not yet published (CA, Ft. Worth).

    H & W divorced in March '85 and H was ordered to pay $250/mo. as c/s. In Nov. '93 W filed contempt against H claiming he hadn't paid the c/s from Jan. '91 to Oct. '93. In June '94 H was found in contempt, sentenced and a $5,825 arrearage judgment was granted. In Aug. '02 W filed another enforcement action claiming that H had failed to pay c/s from Sept. '84 thru June '94 and Dec '96 thru July '02. In April '05 the T/C entered an arrearage judgment against H for $29,604 for the period Jan. '85 (remember the divorce was in March '85) thru Dec. '02. The '05 judgment did not state the specific months in which c/s was not paid during this 17 year period. H appeals claiming that res judicata bars W from making any claims of unpaid c/s prior to the June '94 contempt judgment.

    Res judicata requires proof that: (1) the same parties are involved; (2) there is a prior final judgment by a ct. of competent jurisdiction; and (3) the 2nd suit is based on the same claims as were raised or could have been raised in the 1st suit. In this case W's 1st suit claimed failure to pay c/s from Jan.'91 to Oct.'93 but she could have also made a claim of non-payment from Jan.'85 thru Dec.'90. Additionally in the first suit she could have claimed non-payment from Nov.'93 thru June '94. The fact that she could have made these claims but didn't does not effect the doctrine of res judicata. You can not have two bites at the apple. She can not sue H twice for matters she could have sued him for in the 1st suit which resulted in the June '94 judgment. Res judicata bars W from making any claims arising prior to the June '94 judgment. The CA remanded the case so the T/C could ascertain the am't of unpaid c/s arising after June '94.

    Comment- WOW! A well written and reasoned opinion which should have a significant effect on all these AG suits where they request c/s judgments for periods prior to previously entered judgments. Question. Does this opinion also knock in the head the A.G. cases that ask for a "cummulative" judgment which incorporates previous judgments into a current judgment? Why doesn't res judicata apply to these matters also? Probably because there's a specific statute allowing such - §157.263. Remember res judicata is an affirmative defense so for gosh sakes, plead it.