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Gray's Interesting Cases for February, 2009

Updated and presented by Sallee S. Smyth
  1. Packard v. Davis, 2008 Tex. App. LEXIS 8672 (Tex. App. – Fort Worth November 13, 2008) (Cause No. 02-08-22-CV) (mem. opinion)

    H and W divorced in 1978. H was ordered to pay c/s until youngest child turned 18 or was otherwise emancipated. In 1988 court held H in contempt for failure to pay $3,750 in c/s and issued a WWH order. The youngest child turned 18 in 1991 and graduated HS in 1992. In May 2005, 13 years later, W’s atty asked court to reissue contempt order and Dist. Clerk reissued WWH order to H’s employer. H responded with motion to terminate. W countered with motion to confirm arrearage. TCt suspended WWH and set an evidentiary hearing to determine amount of arrearage which was hotly contested. H and his new wife claimed that they made payments directly to W at her request but no longer had records. W denied. Court found $21,000 in c/s arrearage and ordered WWH. W actually appealed because the order failed to include interest, attorneys fees and costs.

    COA first questioned TCt’s jurisdiction to sign WWH order. COA determined that even though TCt had lost jurisdiction to confirm arrearages by money judgment under version of TFC 157.005(b) in effect on date of W’s motion to confirm (filed more than 10 years after child turned 18), TCt still had jurisdiction to issue WWH under TFC 158.102 and that under Chp. 158 award of interest and fees was not mandatory but discretionary.

  2. Norwood v. Norwood, 2008 Tex. App. LEXIS 8673 (Tex. App. – Fort Worth November 13, 2008) (Cause No. 02-07-244-CV) (mem. opinion)

    In 2001, before marriage, H and W formed a closely held corporation (ND). H owned 60% and W owned 40%. Both were officers, directors and employees. They married in 2002 and H filed for divorce in 2004. The continued to operate the business but began negotiating to sell to third parties. W filed counterclaim and court entered mutual injunctions which included one prohibiting parties from reducing the value of property. At some point H discovered W removing property from their business to a competitor’s location. H excluded W from business. W resigned and went to work for new business she had incorporated with the former competitor. The parties filed competing enforcements and motions to compel discovery. ND intervened and filed claims against W and also joined her new corporation and its directors as additional defendants for breach of fiduciary duty and tortuous interference claims. In pre-trial proceedings both W and her new company were ordered to pay fees for discovery sanctions. At trial H asked that W be precluded from calling witnesses because of her failure to pay these sanctions, her failure to give information as to witness connection, legal theories and factual basis in her 194 responses. TCt granted motion and excluded all witnesses at trial and all evidence in defense of intervenors claims. TCt granted directed verdict in favor of ND and against W and other co-defendants on all claims awarding damages of $235,000. TCt signed decree dividing property and W appealed.

    COA found that sanctions were not excessive and further that evidence was sufficient to support damage awards. Opinion contains a good discussion of discovery sanctions and analyzes the specific behavior in this case against the test for determining if sanctions are just. Judgment affirmed.

  3. In re Maasoumi, 2008 Tex. App. LEXIS 8537 (Tex. App. – Dallas November 13, 2008) (mem. opinion) (Cause No. 05-08-1074-CV) (orig. proceeding)

    M and F were appointed JMC under a final decree, with F having exclusive right of domicile and both M and F sharing equal possession. In 2005 F filed a MTM requesting an SPO for M and seeking psychological evaluations. The court denied temporary relief and abated the MTM indefinitely. In 2006 F filed a second MTM and requested emergency orders. M countered with a MTM seeking sole custody and seeking the right to home school. Court entered TO’s giving F right of education. F amended his MTM and sought orders allowing him to relocate to Georgia for work. In early 2007 court appointed an AAL for the child. The court also ordered a psychological evaluation with Dr. D. After a review hearing months later the court appointed a counselor for the child and ordered M and F to counseling. The case finally went to trial in July 2008. Competing experts testified. At the conclusion of trial the court refused to render a final judgment based on uncertainty of the evidence heard. Ct reset trial for a year later and then entered temporary orders establishing domicile in Dallas and prohibited any further discovery or court action absent an emergency. F moved for judgment but court refused and entered further temporary orders removing F’s right to determine residence and setting trial in summer 2009. F filed mandamus.

    COA granted relief determining that trial court is required to rule on properly filed and pending motions within reasonable time and although decisions may be hard in cases, the refusal to rule for more than one year after trial is not reasonable.

  4. Reimert v. Reimert, 2008 Tex. App. LEXIS 8549 (Tex. App. – Beaumont November 13, 2008) (Cause No. 09-07-418-CV) (mem. opinion)

    Before marriage, H purchased 10 acres with house for $100,000K. He put $20,000 down with s/p fund and took deed in his sole name. H & W married 5 months later. H & W paid monthly mortgage on residence during marriage. W filed for divorce in 2005 and case went to trial in 2007. H did not appear for trial. Ct granted divorce, found property to be H’s s/p and awarded W $25,000 for EC, $9,000 for her interest in H’s retirement and $5,000 for her interest in contents of home. Ct ordered H to pay W $39,000 for EC and imposed equitable lien on his s/p land and residence. H appealed claiming there were no pleadings to support relief, challenging the EC calculation and the lien.

    COA held that a prayer for general relief will support any relief raised by the evidence and consistent with the allegation of the pleading. W’s petition sought a just and right division of the community estate. This coupled with the evidence she presented was enough to support an EC claim!! COA also found sufficient evidence to support the court calculation but held that the equitable lien could be no more than the amount o the claim and therefore inclusion of the additional amounts for retirement and personal property was error. COA reformed the equitable lien and affirmed the judgment.

  5. Hollingsworth v. Hollingsworth, 2008 Tex. App. LEXIS 8563 (Tex. App. – Dallas November 14, 2008) (Cause No. 05-07-1774-CV)

    H and W divorced in 2004 by agreed decree which obligated H to pay any outstanding FIT of the parties through 2003. In 2007 W filed a motion to enforce alleging that H had failed to pay her taxes, penalties and interest for 2003. W had not filed a return for 2003 because she did not work. She later learned that H’s business had issued a 1099 for 2003 claiming to have paid her $31,000 in income that year. Because she did not file a return, the IRS assessed taxes, penalties and interest. W claimed that she contacted her accountant (who was also H’s accountant) and requested H take care of the taxes. H testified that he had paid 2001 and 2002 but did not pay 2003 because he was never notified of any amounts owing. W claimed to have sent notice but H denied receiving it. Trial court clarified the decree and granted a judgment against H for $14,000++ for damages and $7,000 for attorney’s fees, and clarified the decree by ordering payment of these amounts on a specific date and time at office of W’s attorney and held that these obligations were enforceable by contempt. The judgment also ordered a compliance hearing. H filed a MNT containing his own affidavit and an affidavit from his accountant both of which sought to offer evidence not offered at trial. The MNT was overruled on day 75 and H appealed.

    H tried to raise a SOL defense for first time on appeal but this was denied. COA found sufficient evidence to support that H had violated decree. COA found that decree only obligated H to pay the taxes, penalties and interest timely and therefore trial court’s order clarifying this and requiring payment on a specific date was appropriate. H also objected to ruling that the payments were subject to enforcement by contempt. COA held that this issue was not ripe because H had not yet been held in contempt for non-payment on the date ordered. Judgment affirmed.

  6. Waltenburg v. Waltenburg, 2008 Tex. App. LEXIS 8564 (Tex. App. – Dallas November 14, 2008) (Cause No. 05-06-1688-CV)

    H and W married in 2005 and lived together in Arizona until February 2006. W, then pregnant, moved to Texas on March 17, 2006. On March 21 H filed for divorce in Arizona. His suit requested custody of the unborn child. The child was born in Texas in April 2006. In August 2006 W filed suit for divorce in Texas and requested a property division, custody and support. H filed a plea in abatement based on the Arizona suit which remained pending. The Texas court had a telephone conference with the Arizona court and found that the Arizona court had continuing, exclusive jurisdiction under TFC Chapter 155 and dismissed W’s Texas suit without prejudice. Some time thereafter the Arizona court issued a divorce decree including orders regarding the child. W appealed the dismissal of her suit. COA found that UCCJEA governed jurisdiction based on facts which existed on date suit was filed. Because child had lived with mother in Texas since birth to the date she filed her Texas suit, Texas was the child’s home state. F argued that the Texas court was required to recognize the AZ decree under principles of comity and that the UCCJEA did not apply to unborn children.

    COA found that AZ did not have jurisdiction over child custody under AZ statutory scheme because child was not born at time F filed suit and therefore UCCJEA simultaneous proceeding statute did not apply. Reverse dismissal and remand to Texas court to proceed with SAPCR issues.

  7. Durden v. McClure, 2008 Tex. App. LEXIS 8683 (Tex. App. – San Antonio November 19, 2008) (Cause No. 04-08-141-CV)

    By agreed decree, H was given right to claim 2/3 kids as dependents for tax purposes in odd years and W was giving the right as to remaining child. The decree switched the claims in even years. The decree provided that its terms were not contractual. In 2007 H received a $5,000++ tax refund. W claimed the amount should be credited in full to her 2005 tax liability. H claimed it was an overpayment for 2004 and should be split equally. H deposited $$$ into court registry. H filed motion for SJ based on the terms of the decree which clearly ordered the refund to be divided equally and further that the exemption sharing issue should be enforced as written. W claimed the exemption order was void because court could not “order” her to relinquish this claim and that the parties agreed decree was not contractual. Court granted SJ based on language of decree awarding refund 50/50 but expressly declined to grant SJ on exemption sharing basis. The court then found the exemption sharing provisions void and clarified the decree to nullify these provisions. H appealed the orders regarding the exemption arguing that W’s claims were an improper collateral attack on the decree. COA acknowledges that Tax Code allows parties to voluntarily relinquish exemption.

    COA determined that the decree was a consent judgment based on a number of factors: (1) parties signed decree; (2) approved as to form and substance; and (3) many provisions within decree stated “The parties agree and it is ORDERED …,” specifically the provisions regarding the dependency exemptions. The one sentence that declared that the terms of the judgment were not contractual was not sufficient to control the interpretation of the entire decree. Clarification order was reversed and dependency exemption terms of original decree were upheld as a valid agreement of the parties which did not violate federal tax law.

  8. In the Interest of S.J.A., C.J.A., and N.J.A., 2008 Tex. App. LEXIS 8751 (Tex. App. – Dallas November 20, 2008) (Cause No. 05-08-183-CV)

    SJA was born in Louisiana in 1991. In 1992 M married F and CJA was born later that same year. NJA was born in 1995. The parties separated shortly thereafter and the children stayed in LA with M. In 1997 F moved to FLA with kids. In 2000 F began dating step-M. In 2001 F and M were divorced in LA and the decree named them JMC with F having right to determine residence. The kids continued to live with F in FLA. IN 2002 F married step-M. In 2003 M moved to FLA. After a dispute, F filed suit in FLA court and an order was issued requiring M to pay child support and provide health insurance. F died in 2006 and M wanted kids to come live with her but they did not want to. M filed suit in FLA to obtain immediate custody. FLA court did not rule on the motion. M took kids for a weekend period and left FLA with kids and came to Texas. Shortly thereafter step-M filed suit in Texas seeking custody. After a bench trial, step-M was named SMC. The COA addressed subject matter jurisdiction of the Texas court under the UCCJEA.

    The COA found that LA no longer had jurisdiction because no parent continued to live there. The COA found that FLA did not have jurisdiction because it never entered a “custody” order (instead only orders regarding support) and that no parent continued to live there. Further, there was no evidence that step-M claimed to be acting as a parent or to have been awarded any custodial rights to the children. COA concluded that FLA was not home state because after F’s death, they had lived with step-M for only five months when suit was filed and Texas was not home state because kids had lived there only 5 weeks. COA concluded that children had no home state when step-M filed suit in Texas and that children had sufficient connection with Texas to exercise jurisdiction under UCCJEA. Judgment affirmed.

  9. In the Interest of S.N.A., 2008 Tex. App. LEXIS 8721 (Tex. App. – Fort Worth November 20, 2008) (mem. opinion) (Cause No. 02-07-349-CV)

    In 1992, H and W were divorced in a Canadian court. W was awarded custody and H was ordered to pay child support. W and the child moved to Texas and sought to register the Canadian decree. W alleged that H was behind in c/s payments totaling more than $100,000. W filed a suit to modify c/s and reduce unpaid amounts to judgment. H filed a general denial and asserted payment as a defense. After trial the court rendered judgment against H for $134,000++ in past due support and for almost $9,000 in attorneys fees. The order also provided for appellate fees. H appealed. On appeal, H contended for the first time that the Canadian order was vague and ambiguous. COA held this issue waived as not having been raised in the trial court. H also complained that the interest calculations should have been based on Canadian law citing TFC 159.604(a)(2) which provides that the law of the issuing state governs the calculation of arrearage and interest.

    COA noted however that TRE 203 requires that a party who intends to raise an issue of foreign law give notice at least 30 days before trial and provide the law to the court and all other parties. COA determined that because H failed to comply with TRE 203 he waived his right to the choice of law provisions in the Family Code. Judgment affirmed.

    Comment: In reviewing TFC 159.604 it would seemingly appear that the use of Canadian law in this case was mandatory since the exception under subsection (d) does not apply. Be careful if you are defending enforcement of a foreign judgment and make no assumptions that the court will be able to rely on the statute absent information which you are required to provide.

  10. Barina v. Barina, 2008 Tex. App. LEXIS 8747 (Tex. App. – Austin November 21, 2008) (mem. opinion) (03-08-341-CV)

    H and W executed an MSA providing for agreements as to their divorce which included terms for possession of their child. W filed a motion to enter a decree. H objected to the decree claiming it was inconsistent with the MSA regarding the terms of his weekend periods of possession. The MSA provided for alternating weekends between H and W and addressed holidays. The decree gave H possession on 1, 3, 5 weekends and he appealed. W claims the trial court’s decree represents a reasonable interpretation of the parties MSA.

    COA determined that if MSA complies with requirements of TFC 153.0071(d), party is entitled to judgment and absent an allegation of family violence the MSA may be ruled on without a determination by trial court that terms are in child’s best interest citing TFC 153.0071(e-1) Because MSA complied, trial court erred in substituting its own terms and COA modified decree to comply with terms of MSA.

  11. Aland v. Martin, 2008 Tex. App. LEXIS 8815 (Tex. App. – Dallas November 25, 2008) (Cause No. 05-07-1451-CV)

    H and W were divorced. During the course of the divorce proceedings, W’s attorney filed IAA’s which alleged the Ashwood residence to be community property. The attorney agreed to take a PNote from W in the amount of $10,000++ for legal fees. To secure the note, W signed a deed of trust granting a lien on the Ashwood residence which was filed in the Dallas county real property records. W did not consult H prior to executing the note and the deed. In the final decree signed in July 2006, H was awarded the Ashwood property and debts thereon excluding the lien in favor of W’s attorney. The decree also ordered W to extinguish the debt owing to her attorney. H attempted to refinance the residence in August 2006 but was denied due to the deed of trust lien. H filed suit against the attorney in late 2006. Attorney finally released the lien in January 2007 when she was paid by W. In May 2007 H amended his suit and sought damages against the attorney under CPRC 12.002 which permits recovery against persons who file fraudulent liens with the intent to injure. The trial court found that the attorney was board certified in family law and should have known that a valid lien may not be filed against community property without both parties consent in writing. The trial court further found that the attorney intended to create a cloud on the property. The court awarded H damages and attorney fees. Attorney appealed alleging that there was no evidence of intent to injure as required by the statute.

    The COA determined that intent could not be inferred and that there was insufficient evidence offered by H to establish that the attorney intended to injure him. COA reversed and rendered that H take nothing.

  12. In the interest of T.D.J., 2008 Tex. App. LEXIS 8831 (Tex. App. – Tyler November 26, 2008) (mem. opinion) (Cause No. 12-07-188-CV)

    In 2003 PGP filed a suit for grandparent access to her grandchild stating that the child’s parents were divorced. Mom filed a motion challenging the constitutionality of the statute, a motion to dismiss, special exceptions and a motion to strike. After that, M and PGP entered into a Rule 11 agreement allowing PGP access on weekends, for holidays and during the summer. In 2005 the trial court terminated parental rights between the child and his father. Several months later the trial court signed a final order grating PGP access. In 2006 M filed a motion to set aside this order, alternatively a motion to modify it. M based her arguments on Troxel and further the amendments to TFC 153.433(2) (PGP’s rights to access were terminated when the father’s rights were terminated.) The trial court set a hearing and PGP failed to appear. M argued that TFC was amended after the order granting access was signed and no longer supported visitation. Further M claimed that PGP exercised visitation sporadically and had violated injunctions which prohibited access between the child and the biological father. M claimed that PGP had not seen the child in at least 2 years. The trial court granted M’s motion. PGP appealed.

    PGP argued that the suit in the trial court was governed by Chapter 156 for modification and that M had failed to offer any evidence of a material and substantial change and the court’s rulings failed to include any such finding. COA reversed and remanded the case for further proceedings.

  14. In the Matter of the Marriage of King
    15. , 2008 Tex. App. LEXIS 8928 (Tex. App. – Texarkana December 2, 2008) (Cause No. 06-08-120-CV)

    H, who was incarcerated, filed a petition for divorce and sought a division of property based on evidence set out in an affidavit he filed with the court. H initially served citation on someone who turned out not to be his wife. Then citation was posted to the correct person on the courthouse door. H claimed that he and W were married by “lawful recognition” of a judge during a prior custody proceeding wherein the parties child was adopted by another couple. The court signed a divorce decree in September 2008 based on a form provided to the court by H. H did not appeal the divorce but appealed the division of property because he had requested specific dollar amounts and the decree did not provide these.

    During the appeal, the appellate court clerk received a call from someone claiming to be the W but who claimed that she was never married to H. Nevertheless, the COA affirmed the judgment finding that they could not determined an abuse of discretion in the absence of any evidence as to what property even existed and since H only sent a letter request for the division he wanted but provided no evidence that it was just and right, judgment should be affirmed.

  15. In the Interest of JI.M.S, J.I.E and A.L.S., 2008 Tex. App. LEXIS 8926 (Tex. App. – Houston [14th Dist.] December 2, 2008) (mem. opinion) (Cause No. 14-07-638-CV)

    In early 2007 the trial court rendered a decision terminating the rights of both parents to three children but the final order terminated rights only as to two. At the termination trial the CPS worker testified that all 3 children had been placed with their grandparents who intended to adopt them and that this was in the children’s best interest. A month later CPS received a report and removed the children from the grandparents. At the removal hearing grandmother admitted to violating an earlier court order. One month after removal, grandmother filed an original petition for possession and access. A hearing was held on this petition four months later. Sometime between removal and the trial on the petition an adoptive family filed suit to adopt the children and CPS consented to the adoption. At trial on the petition CPS argued against possession and made an oral motion to dismiss. The adoptive family joined in the motion and asserted that grandmother had no standing under TFC 102.006(a)(3) (limitations on standing after termination). Grandmother conceded but alleged that the standing statute might be unconstitutional.

    The COA determined that only the constitutional challenged based on the Open Court’s provision had been preserved but found the statute constitutional. Grandmother also asserted standing under TFC 102.006(c) which came into effect after her petition but before trial. The COA allowed the argument but found that TFC 102.006(c) only applied to suits requesting managing conservatorship and since grandmother only sought possession, it did not apply. Dismissal of the suit for access was affirmed.

  16. Marie v. Velasquez, 2008 Tex. App. LEXIS 8962 (Tex. App. – San Antonio December 3, 2008) (mem. opinion) (Cause No. 04-08-271-CV)

    H filed suit for divorce. The court found that H’s parents had made a loan of $107,000 to the couple to build a house. H’s mother produced checks to H totaling over $90,000. Everyone admitted that no loan documents were signed and that repayment arrangements were vague. H testified that he had been paying his parents back and he produced checks evidencing some $8,000 in repayment. The trial court found a community debt to H’s parents in the amount of $83,000++. Because the court found the debt to exist, the COA determined that is was correct to presume that the debt was community. W’s evidence that she was not involved in the transaction and that H handled all of their financial affairs was not sufficiently clear and convincing to establish that H’s parents had agreed to look solely to his s/p to repay the note, therefore it was not an abuse of discretion to find the debt to be community in character. W also argued that the statute of frauds prohibited enforcement because the agreement could not be performed within one-year.

    The COA found that the statute of frauds does not apply to a contract which is fully performed on one side at the time the contract is made. Because the parents had fully performed their side of the agreement by loaning the money, enforcement was not barred by the SOF. Judgment affirmed.

  17. In re Office of the Attorney General of Texas, 2008 Tex. App. LEXIS 8973 (Tex. App. – Dallas December 3, 2008) (orig. proceeding) (Cause No. 05-08-1455-CV)

    Child was born May 2002. Two days later M and Bailey (age 24) executed an acknowledgment of paternity naming Bailey the father. The AOP was filed with the BVS in June. In 2008 the AG filed suit to establish child support orders. At the hearing the AJ ordered genetic testing. The AG’s appeal to the presiding judge was denied. AG sought mandamus relief and an emergency stay was granted.

    Pursuant to TFC 160.205(a) a valid AOP establishes and adjudicates parentage. An adult signatory to an AOP may challenge the AOP based fraud, duress or material mistake within four years after it is filed with the BVS. Because more than 4 years had passed since the AOP was filed, the trial court abused its discretion by ordering genetic testing which sought to determine whether Bailey truly was the father. Mandamus granted.

  18. Argovitz v. Argovitz, 2008 Tex. App. LEXIS 9147 (Tex. App. – Houston [14th Dist.] December 9, 2008) (mem. opinion) (Cause No. 14-07-206-CV; 14-07-396-CV)

    W appeals a SJ order granted in favor of ex-H based on his claim that she forfeited assets and she also appeals a SJ order in favor of H on her claims that H breached his fiduciary duty to manage certain assets after their divorce. H and W executed an MSA. The court did not sign a decree when disputes arose and instead ordered the parties to binding arbitration. The arbitrator issued a final award and a decree was thereafter signed. There were two post-divorce disputes. The first involved a claim by H that W forfeited her right to certain property by failing to timely make a required cash call under the decree. Under the decree the parties were required to deposit $20,000 into a specified account to pay expenses related to their jointly owned properties any time the existing account dropped below $10,000. The decree provided that if either party failed to make the required deposits, they would forfeit their interest in the joint assets to the other party. H made a demand on W for $25,000 when the account fell below the required balance. H paid his $25,000 but W did not. H sent W a notice of default and gave her an additional 10 days to cure. W did not. Some 5 months later W sent H $20,000. H returned the check to W along with a suit for declaratory judgment requesting a finding that W had forfeited her rights in the jointly held assets.

    The second suit involved a claim by W that H had breached his duties to properly manage certain jointly owned assets. She sought an accounting of certain expenditures in connection with the sale of certain property. H filed both a traditional and no evidence summary judgment motion in response to the suit filed by W against him. The trial court granted H summary judgment on W’s breach of fiduciary duty claim and severed this from the dec. action making the SJ final. W appealed. Thereafter H filed a motion for SJ as to the forfeiture claim. W filed no timely summary judgment response but instead on the day of the SJ hearing she filed a motion asking the court to abate the forfeiture claim. The court gave W time to submit legal authorities in support of her request. Several months later the W filed leave to file a late SJ response. the trial denied leave to file a late response and the court granted H’s summary judgment on the forfeiture claim. W appealed.

    Forfeiture appeal: As to the forfeiture issue, the COA held that there was no abuse of discretion in denying leave to file a SJ response because the record established that W’s failure to file a response was intentional and made as a strategic choice. W argued that the trial court erred by refusing her a hearing on her motion for leave. The COA construed the Harris County local rules and found that although oral hearings may be requested, the court need not grant them and that since oral hearings are not required on motions for summary judgments, it follows that oral hearings on motions for leave to respond to them are not required either. The COA also found that by failing to file a response, W waived her right to make any arguments on appeal other than to challenge the sufficiency of the grounds presented to the trial court in H’s motion. The COA concluded that the SJ evidence established as a matter of law that W failed to make the required cash call and that as a result of the decree she forfeited her interest in jointly owned assets and SJ was proper.

    Breach of fiduciary duty appeal: The COA found the existence of material facts as to one specific allegation within the breach of fiduciary duty claim based on conflicts in the testimony of W’s expert who gave testimony at an earlier hearing, which was thereafter contradicted by testimony at a deposition, and then contradicted again in a summary judgment affidavit. The COA affirmed all other aspects of the trial court’s judgment but reversed and remanded this one specific issue for further proceedings.

  19. Williams v. Williams, 2008 Tex. App. LEXIS 9238 (Tex. App. – Fort Worth December 11, 2008) (Cause No. 02-08-033-CV)

    In 1997 H and W purchased a ranch and signed a note with a final maturity payment in 2000. When the final payment came due H and W entered into an agreement with W’s parents to make the final payment and in turn H and W would then pay W’s parents. W’s parents made the final payment in the amount of $112,000. H and W made repayments for several years. In 2002 the parents attempted to get H and W to sign a PNote secured by the ranch. W executed the note, H did not. In 2004 the parents executed a document “forgiving” the balance of the note ($51,000) as a gift to W and further providing that $50,000 of the final payment they made was also a gift to W. The trial court found that because the original note was a community debt, any forgiveness of that debt benefitted the community estate and W had no s/p reimbursement claim against the community estate for these transactions W appealed.

    COA affirmed the trial court’s decision denying a gift as to the original $50,000 but reversed the trial court’s treatment of the parent’s “forgiveness” of the balance. On remand the trial court heard additional evidence from W’s father about the original $50,000 gift, including his testimony that he filed a gift tax return in 2002 for the entire $101,000 gift to his daughter. The trial court found that W had a $100,000++ s/p interest in the ranch. Then H appealed. The court found that evidence judicially noticed from the first trial coupled with the father’s additional testimony was sufficient meet W’s burden of proving clear and convincing evidence. H challenged some other minor characterization issues but the COA overruled each issue and affirmed the judgment.

  20. In re the Office of the Attorney General, 2008 Tex. App. LEXIS 9228 (Tex. App. – Houston [1st Dist.] December 11, 2008) (orig. proceeding) (Cause No. 14-08-670-CV)

    OAG filed suit to establish paternity between Phillips and a child born to Duncan. Phillips was served but did not file an answer and admitted receiving notice of trial but did not appear at the hearing. A default judgment was entered establishing the parent child relationship, awarding custody, ordering past and future child support. Phillips disputes that the clerk sent him notice of the default judgment but he did receive notice within the first 30 days that his wages were being garnished. Phillips did not file a MNT. Instead, Phillips administered a DNA test to himself and the child and sent it off for results. He did not follow the instructions for chain of custody. The report came back excluding Phillips as the father but it was not in admissible form and did not meet all requirements of TFC. Phillips hired counsel and filed a bill of review petition. He also sued Duncan for exemplary damages for failing to tell him he was not the only candidate for paternity. Phillips offered his excuse for failing to appear at trial by way of affidavit. The OAG asserted several affirmative defenses. The AJ heard the bill of review and found that it should be denied and the case dismissed because a prima facie BOR case had not been made. Philliips appealed to the presiding judge. The OAG objected to the appeal because Phillips failed to specify the issues for review. The court granted the objection and adopted the AJ’s report. Phillips filed a MNT. At the new trial hearing Phillips gave testimony as to why he could not appear at the trial and further that the mom did not act surprised when he told her the results of the paternity test. The trial court granted a new trial, ordered paternity testing and set a trial date. Thereafter the court signed an order granting the bill of review, finding that its decision to grant a new trial was not just a decision to give Phillips a de novo hearing on the BOR but was in fact a decision granting the BOR. The court’s order set aside the prior default order and ordered genetic testing. The OAG sought mandamus relief.

    The COA issued a stay of testing but it occurred before the stay was issued. The results were ordered held by the trial court and sealed until the mandamus proceeding was concluded. The COA found that the trial court abused its discretion because there was no evidence of extrinsic fraud to support a BOR. Even if mom acted improperly in failing to disclose other partners, this could have been discovered in the original proceedings if Phillips had participated. Further, the COA found that Phillips had been negligent in failing to answer and therefore contributed to the default judgment. Because the trial court abused its discretion in granting BOR and setting aside the default judgment, the order for genetic testing was not needed because the default judgment establishing paternity was now revived. The COA granted mandamus and ordered the trial court to set aside its various orders and to seal the results of the DNA tests within 10 days.

  21. In re Winters, 2008 Tex. App. LEXIS 9183 (Tex. App. – Dallas December 11, 2008) (orig. proceeding) (mem. opinion) (Cause No. 05-08-1486-CV)

    M and F divorced. The decree named them JMC and gave M exclusive domicile without restriction. Two years later M obtained employment near Austin and filed a MTM to increase child support. F filed a general denial. M and child moved. The AJ issued a temporary order increasing c/s. F then filed a counter MTM. Then the AJ issued an order removing M’s right to determine domicile and ordered her to return to Dallas county by a date certain otherwise the court would appoint F as SMC. M appealed to the presiding judge who affirmed the AJ’s order. M filed for mandamus and the COA stayed the temporary orders while the case was pending.

    COA found that the temporary order had the effect of changing M’s right to designate child’s residence and thus required proof that the child’s present circumstances would impair his physical health or emotional development. COA found no such evidence and determined that M had no adequate remedy by appeal from indefinite temporary order, therefore mandamus granted.

  22. In re Bradshaw, 2008 Tex. App. LEXIS 9268 (Tex. App. – Houston [14th Dist.] December 16, 2008) (orig. proceeding) (Cause No. 14-08-957-CV)

    M and F divorced in Tennessee and were named JMC with dad having primary rights of the children. Shortly thereafter an Oklahoma court modified to name F as SMC and M as PC. F and kids moved to Virginia where they remained. In summer 2008 M brought kids to Houston for summer visitation. At the end of summer, M returned the 14 year old but not the 16 year old. F came to Houston and attempted unsuccessfully to take possession of the child with law enforcement. M filed a SAPCR seeking to modify the OK order. The AJ issued ex parte injunctions prohibiting F from removing the child from M and set a hearing. Then F filed a petition for writ of habeas corpus and the presiding judge issued a writ of attachment for the child to be brought to court. The writ was executed and the child was brought before a visiting AJ who interviewed the child, orally granted habeas corpus and awarded F fees. The child escaped from the courthouse, ran away and called M who picked her up. M called F to come get her but child refused to go with F. F requested another writ of attachment the next day but the visiting AJ denied it because of his fear the child would simply run away again. The presiding judge appointed an amicus and ordered all parties and the child to return on a date specific. M, her lawyer and the child did not appear. The judge issued a writ of attachment for the amicus to execute. All parties and the child appeared at the next hearing and after testimony from all the court granted the writ. The court also determined that F had not been properly served with M’s MTM because he was immune from service while in the state to prosecute his writ. The court suggested that M hire counsel in VA to seek modification. When the court advised the child in chambers of the decision the child had a breakdown and the court then reopened testimony and eventually denied the writ and entered temporary orders that the child remain with M indefinitely and that F could have phone access with the child. F sought mandamus relief.

    The COA determined that the evidence was sufficient to justify denying HC, determining that there was more than a threat that the child would run away if forced to go. However the COA determined that the trial court abused its discretion by entering TO’s which provided no future hearing date and failed to provide periods of access by F. Further the COA held that there is no authority for the court to appoint an amicus attorney for a habeas corpus action and one is not necessary because best interest is not in issue. COA found that appointment and order for parent to pay amicus for work done in the habeas was an abuse of discretion. Court granted mandamus requiring modification of temporary orders and directing that F not liable for fees to amicus.

  23. In the Interest of K.N.C. and G.R.C., 2008 Tex. App. LEXIS 9374 (Tex. App. – Dallas December 17, 2008) (Cause No. 05-07-1715-CV)

    M and F married in 1990 and had 2 children. The lived in F’s s/p house and both worked. In 1996 F became disabled after a car accident and began receiving disability benefits. M filed for divorce in 2006. At the time of divorce F was still receiving benefits and both children were receiving social security benefits because of their father’s disability. F admitted to past drug use. After trial M and F were appointed JMC, F was ordered to pay $230/mo in c/s and given supervise possession. F appealed.

    COA determined that c/s order was improper because each child was receiving $322/mo in SS benefits which was more than c/s calculated under guidelines and TFC 154.132 required disability income to be considered. Further M did not establish underemployment justifying additional support. As to visitation the court ordered it to be supervised by a competent adult or entity agreed to by the parties. F argued that this gave M full veto power over his visitation if she did not agree to the supervisor. The COA agreed, requested the parties to submit names of agreed supervisors and then modified the underlying order to include these names. COA reversed c/s order and modified visitation provisions. All remaining terms of the decree were affirmed.

  24. Murray v. Murray, 2008 Tex. App. LEXIS 9482 (Tex. App. – Fort Worth December 18, 2008) (Cause No. 02-08-31-CV)

    H and W divorced in 2003. H is an independent broker for a marketing company that provides discounted rates on health services. As a broker, H sells monthly memberships in discounted health plans and recruits other brokers to do the same. The members and brokers recruited by H as well as the members and brokers recruited by them, and so on, are H’s “downline” which determines his compensation. At the time of divorce there were thousands of members and brokers in H’s downline and his gross income was about $27,000 per month. The only disputed issue in the divorce was the division of the residual income generated by the downline as it existed at the time of divorce. W argued that she has assisted H in creating the downline and that it should be treated as a book of business and divided monthly on the 60/40 split agreed to by the parties. H requested the court simply value the business and let him buy-out W. The trial court ruled with W and ordered H to pay W 60% of the residual income each month based on the book of business as of the date of divorce. Neither party appealed. After divorce the amount W was receiving slowly began to decline and she filed a petition to enforce or alternatively alleged ambiguity. The court clarified the order by defining “book of business” and “residual income” and then divided H’s income into three categories: (A) the downline as it existed on date of divorce; (B) the new members generated by H only after divorce and (C) new persons developed by those in group A after divorce. The court determined that W was entitled to 60% of income generated by group A from any source after divorce but not entitled to any income generated by groups B and C. H requested findings and filed a MNT. The trial court determined findings were not appropriate and denied the MNT.

    Regarding the absence of findings the COA determined that findings of fact and conclusions of law are not required in post-judgment hearings because they are not considered a “trial” as contemplated by TRCP Rule 296. Regarding the clarification the COA agreed that the underlying decree was ambiguous and subject to clarification however determined that any growth of income from the book of business as it existed on the date of divorce which was attributable to new members added after that date was H’s separate property and could not be awarded to W. The COA modified the clarification order to award W 60% of the income payable to or received by Group A as generated by the members of Group A as it existed on date of divorce.

    Comment: I disagree with the court’s holding as to findings of fact and conclusions of law. Chapter 9 proceedings are original suits to be prosecuted as civil cases generally [TFC 9.001(b)], allowing for full discovery and ultimately a trial on the merit. They are not “post-judgment” hearings. The language of the family code is not consistent in identifying hearings vs. trials and other appellate decisions interpret the word “hearing” as found in the family code to mean “trial.” [i.e. In re Compton, 185 S.W.3d 526 (Tex. App. – Houston [14th Dist.] 2006) (orig. proceeding) (“hearing” in TFC 155.204(b) for purpose of Respondent’s deadline to file motion to transfer venue means “final” hearing which disposes of the pending SAPCR, which in essence means the final trial.] Generally findings are available when the court has made a factual determination based on evidence. Since parties have a right to appeal from final judgments in Chapter 9 proceedings, they should be entitled to findings and conclusions which support these judgments.

  25. Jacobs v. Plummer, 2008 Tex. App. LEXIS 9596 (Tex. App. – Austin December 23, 2008) (mem. opinion) (Cause No. 03-07-0097-CV)

    Before marriage, H and W purchased a house together. Later when they separated, W remained in the residence and H was enjoined from coming within 200 feet of it. In the decree the court confirmed the residence to be owned by each party having an undivided 50% interest as separate property. The court ordered H to pay W $17,000++ as an EC claim and ordered W to pay H $9000++ as an EC claim with each debt to be secured by a lien on the property. By agreement a permanent injunction was entered against H from coming within 200 feet of the residence. W continued to live in the house and pay all bills after the divorce. Five years later W sued H for contribution for ½ of the mortgage payments she had made and H filed a counter-claim for partition. After trial the court denied contribution to W and ordered a private partition without receiving. The court ordered W to pay H a specified amount and upon payment ordered H to execute a deed conveying his interest to W. The court further provided that if payment was not made the property would be sold by a receiver with the proceeds divided subject to the existing liens for EC. H appealed challenging the trial court’s authority to order partition via buy-out between the parties rather than sale by a receiver to a third party as provided in the Property Code.

    The COA determined that because the parties had agreed upon a value the appointment of a receiver would serve no purpose. The COA also determined that the calculations were correct and affirmed the trial court’s judgment.

  26. Sharma v. Routh, 2008 Tex. App. LEXIS 9737 (Tex. App. – Houston [14th Dist.] December 31, 2008) (Cause No. 14-06-717-CV)

    Prior to marriage, H and his first wife (both psychiatrists) amassed considerable wealth owning and operating psychiatric hospitals. Upon his first W’s death, her will established two trusts naming H as income beneficiary and trustee. Both trusts also named remainder beneficiaries. As trustee, H sold the trust corpus (interests in the psychiatric hospitals) in exchange for various promissory notes which thereafter produced income to the trust. Under the terms of the trust, this income was to be distributed to H and H had the right to distribute additional amounts from corpus to meet his needs subject to consideration of his other resources. Because H maintained his own independent wealth and because he sought to carry on his first wife’s legacy with the hospitals, H agreed to donate his trust distributions back to the hospitals so they could maintain cash flow and continue operations. As a result of this agreement, H never actually received trust distributions but he did report them on her personal income tax returns. Further, as trustee, H never invaded trust corpus however there was evidence that initial payments of principal and interest payments on the notes had been deposited into H’s personal accounts by mistake.

    When this was discovered, an accounting was done and all amount were then returned to trust accounts. H and W married and separated only 4 months later. After an initial default judgment was set aside, the case eventually went to trial. At the time of trial the trusts had “distributed” approximately $2 million in income to H. The court characterized this income as community property. Although this income had never actually been received by H (due to his prior decision to donate these amounts) and even though the court expressly denied reimbursement, the court treated this amount as part of the value of the community estate and awarded W a judgment against H for 50% of the accrued trust income. H appealed.

    The majority opinion affirmed the community character of the trust income determining that undisputed evidence established that H had an interest in the trust corpus (the promissory notes) and therefore the interest from those notes was community property. The majority determined that because there was evidence that trust corpus has been deposited into H’s personal bank accounts this demonstrated that H had an interest in trust corpus which in turn supports the argument that income from separate property is community proeprty. The dissent points out that these deposits were made by mistake, at the direction of an accountant and not the H as trustee, and were eventually corrected, belying H’s “interest” in trust corpus.

    The majority also rejected H’s claim that the trust income was acquired by gift or devise through his first W’s will while the dissent found that this had been established by the evidence as a matter of law and that for this reason the trial court should have determined the income to be separate property. Finally, the majority held that a money judgment was the proper way to compensate W for H’s donation of community money without her consent and that this remedy was available, exclusive of reimbursement which the trial court had expressly denied. The dissenting opinion advocates the need for adopting a different standard to determine the character of trust income in Texas, suggesting that the beneficiary spouse must have a present possessory interest in trust corpus before trust income can be characterized as community. The dissent points out that in this case there was a remainder beneficiary and the trustee was not free to invade trust corpus (nor did he) to the detriment of the remainder beneficiary and without scrutiny. As such, the dissent felt that H did not possess a legal interest in the corpus which would then support a determination that income from separate property is community property. The dissent firmly suggested that the trust income should have been characterized as H’s separate property as a matter of law because H received this income as a gift and devise under the terms of his first wife’s will.

    Comment: As this is my case I can report that a motion for rehearing is being filed and H plans to file a petition for review in the Supreme Court in the event rehearing is denied.

  27. In the Interest of J.S.P., 2008 Tex. App. LEXIS 9679 (Tex. App. – San Antonio December 31, 2008) (Cause No. 04-07-481-CV)

    F, suffering from a closed-head injury, met M while in rehab and she became pregnant. Several years after the child’s birth, maternal grandmother (who was M’s legal guardian) filed a SAPCR and was named SMC in an agreed order. Both M and F were permitted visitation as agreed and as supervised by MGM. Two years later, F filed a MTM and sought appointment as JMC with primary rights. Temporary orders were entered continuing supervised visitation but expanded the approved supervisors and designated specific visitation times. After pending for more than two years the case was finally tried to a jury. F was appointed JMC along with MGM who retained primary rights. The trial court decided the visitation issues and continued the same schedule contained in the TO’s and appointed a child psychologist to work with F to develop a transition to unsupervised access and ultimately an SPO. F’s right to attend school activities was limited to special education meetings as a participant only with no right to vote on decisions for the child. F was ordered to pay c/s and reimburse for health insurance and to pay attorneys fees. F appealed on a partial record but did not file a statement of points.

    As a result the COA was able to presume that the missing parts of the record supported the trial court’s judgment. F argued that it was error to appoint a psychologist to determine his future visitation because the court cannot delegate its authority to a third party. The COA agreed generally that this was correct but that in some circumstances the appointment of a neutral third party in complex cases may be necessary because the court is not in the best position to determine when a parent may be capable of transitioning to more standard access. The COA was unwilling to impose a blanket prohibition on the trial court’s ability to appoint a third party to assist in making decisions about possession and access but the COA held that in these cases the court’s order must be very specific as to identify the third party, provide dates by which the transition program should be developed, dates when the SPO should begin and dates by which the third party should report to the court if these matters could not be accomplished as ordered. Without these terms the order is unenforceable. All other issued raised by F were overruled in the face of a partial record which allowed the COA to presume they were properly supported and therefore properly decided.

  28. Carroll v. Carroll, 2009 Tex. App. LEXIS 167 (Tex. App. – San Antonio January 14, 2009) (mem. opinion) (Cause No. 04-08-63-CV)

    H and W married in 1976. During the marriage H was on active duty in the Army and accumulated multiple years of service towards his retirement. The parties divorced in 1999 and H continued on active duty until he retired in 2004. The decree awarded W a 49% interest in H’s retirement based on a formula in the decree. The formula then defined the community interest in H’s retirement. The decree also enjoined H from altering W’s election to be named a former spouse for survivor benefit purposes. When he retired, H applied for the Survivor Benefit Plan, designating W as beneficiary but the application was denied because W failed to make her election within 1 year after the divorce. W filed a chapter 9 suit to enforce and clarify. The trial court awarded W a % of the total amount H was receiving in retirement pay and ordered H to apply for a life insurance policy for W in lieu of the survivor benefit. H appealed.

    The COA found that the decree was unambiguous, awarding W only 49% of the community portion of H’s retirement benefits and not 49% of the total. The COA determined that H had agreed to provide the life insurance policy in lieu of survivor benefits and under the “invited error” doctrine he could not complain that these orders were an improper substantive modification to the decree. Reversed in part and affirmed in part.

  29. In the Interest of A.M.S., 2009 Tex. App. LEXIS 187 (Tex. App. – Texarkana January 14, 2009) (Cause No. 06-08-67-CV)

    M and F entered into an agreement with paternal aunt (PA) and her husband (PAH) to take custody of their two month old baby. PA and PAH filed a SAPCR seeking appointment as JMC and stated that the parents were expected to consent. M and F were served with citation but did not answer. Instead they both made a pro se general appearance at the final hearing and agreed to entry of an order appointing PA and PAH as JMC. M and F subsequently retained counsel and filed a MNT which was denied. M and F appeal and challenge PA and PAH’s standing. First, M and F claim that TFC 102.004(a)(2) should be interpreted to require “consent” before suit is filed because to do otherwise would permit parties to confer subject matter jurisdiction by agreement which is not permitted.

    The COA determined that by failing to specify or limit when or how consent may be given, the legislature did not intend to place restrictions upon consent under TFC 102.004(a)(2), finding that oral consent, established in the record, is sufficient to confer standing. The COA further held that PA had standing as a relative within the third decree of consanguinity, however her husband did not. PAH argued that he was related within three degrees of “affinity” as provided by TGC 573.024 but the COA determined that “affinity” and “consanguinity” are distinct legal concepts and the Family Code specified “consanguinity.” The COA declared the portion of the agreed order naming PAH as a JMC void for lack of standing, further determining that there was no evidence to suggest he had intervened or had past substantial contact with the child as allowed by TFC 102.004(b). The COA noted that nothing in this decision would prevent PAH from filing a future SAPCR to establish a legal relationship with the child.

  30. Ellithorp v. Ellithorp, 2009 Tex. App. LEXIS 275 (Tex. App. – El Paso January 15, 2009) (Cause No. 08-06-249-CV)

    H and W married in Ohio and had 2 children. The parties moved to West VA and H joined the military. When the parties separated, H was stationed in TX. W filed for divorce in West VA on 7/21/94 and H filed in TX on 7/26/04. W appeared in the TX suit and advised the court that she had filed in West VA. H was served in the West VA suit but did not answer. The West VA notified the TX court by letter of the pending divorce and asked if TX intended to exercise jurisdiction. The TX court wrote back saying it would go forward whereupon the West VA judge recommended dismissal of the West VA suit but W objected. Thereafter the TX suit proceeded and W failed to appear. The TX order named the parties JMC, W primary, ordered visitation and ordered H to pay $400/mo in c/s. Although signed in January 1995, the decree recites that it became effective December 30, 1994. The West VA case also proceeded on a parallel track. A final decree was entered in West VA in May 1995 but states that it is effective as of December 22, 1994 (a date prior to the West VA hearing). At all time W remained in West VA and H remained in TX. For several years both parties pursued separate enforcements of both orders. In 1997 the parties entered into an agreed order in West VA which purported to set aside the TX case and recognize the 1995 West VA decree as the operative order. Several years later when the state of West VA brought enforcement proceedings against H, H filed a special appearance and claimed that the TX order remained valid despite his 1997 agreement to the contrary. Ultimately, the West VA Supreme Court found that West VA lacked personal jurisdiction over H up until 1997 when he submitted himself to the court’s jurisdiction by entering into an agreed order. Thereafter the W filed a motion to register the West VA order in TX. H objected claiming that the TX order was controlling under UIFSA. The TX court agreed and W appealed.

    The COA analyzed TFC 159.207 to determine which order was controlling. The COA found that TX had continuing, exclusive jurisdiction because there were no arguments that the TX order was inconsistent with TX law and H was a TX resident. TFC 159.205(a)(1). The COA also determined that West VA had continuing, exclusive jurisdiction over their orders because West VA had personal jurisdiction over H to enter the 1997 order and West VA was the home state of the child and the obligee. The COA then held that because West VA was the home state of the child entitled to support, the West VA agreed order from 1997 was the controlling order pursuant to TFC 159.207(b)(2)(A). Reversed and remanded for registration and confirmation of West VA order.

  31. In re Brown, 2009 Tex. App. LEXIS 393 (Tex. App. – Houston [14th Dist.] January 16, 2009) (orig. proceeding) (Cause No. 14-08-548-CV) (plurality opinion)

    H and W divorced in 2001. W was appointed SMC of the two children. The decree contained findings of family violence by H and findings re: H’s intentional acts to injury or harm W. The decree awarded W damages of $5.2 M based on IIED claims. H was given only supervised access. Modifications occurred in 2005 (only overnight possession was to be supervised) and in 2006 (all possession would be unsupervised). In 2008 W filed a MTM seeking modification of H’s visitation based on her claims that the children were in danger due to H’s continued erratic and violent behaviors. W sought emergency temporary orders. W’s MTM was supported by an affidavit which W had previously used in connection with a request for a protective order more than a year before. H filed a counter motion seeking appointment as SMC. He also filed motions for psychological evaluation of W and kids, motion for mediation, and motion for appointment of amicus attorney. At the temporary hearing the court ordered H to submit to drug testing (which came back positive for cocaine and Xanax) and sua sponte ordered H to submit to a psychiatric evaluation. W then sought a written order for the evaluation and at the hearing on this request H non-suited all his claims for affirmative relief against the W. At this hearing, H also stipulated to W’s requests in her pleadings regarding his access to the children. The court signed an order for the evaluation and appointing an amicus. The court signed a second, more specific order directing H to appear for the initial evaluation appointment at a date and time certain. H sought mandamus relief. H claims the order for psychiatric evaluation is improper because (1) W failed to show good cause and (2) failed to prove that his mental condition was in controversy citing TRCP 204.1. W argues that TRCP 204.4 (examinations in Family Code cases) applies.

    The COA analyzed the case under TRCP 204.1. The COA determined that H’s stipulation to W’s specific requests for relief regarding visitation did not include a stipulation to W’s request that the trial court generally issue an order protecting the best interest of the children. In other words, although H’s stipulated that the court could restrict his access he did not stipulate to specific limitations which the trial court would still need to determine. The COA determined that the W’s affidavit placed H’s mental condition in controversy as to the issue of the children’s best interest. On a second point regarding the order itself the COA found that H failed to complain in the trial court and was therefore not entitled to mandamus relief on that basis. Mandamus was denied. Dissent: The dissent argues that the requirements of TRCP 204.1 were not met. The dissent agrees that evaluations may certainly be necessary and helpful in cases involving best interest but nevertheless the safeguards provided by the rules must still be followed. The dissent believes that conclusory allegations in pleadings and a 19 month old affidavit in this case, the court’s failure to consider other possible, less intrusive means for obtaining the information, and the orders failure to specify the conditions and scope of the evaluation, all point to an abuse of discretion.

  32. In re Nabors, 2009 Tex. App. LEXIS 394 (Tex. App. – Houston [14th Dist.] January 16, 2009) (orig. proceeding) (Cause No. 14-08-380-CV)

    In 2006 TDFPS placed two children with the Nabors as foster parents (FP). Over a year later, the court terminated both parents rights to the children and TDFPS was named SMC. Several months later the children were removed from FP home based on allegations of abuse and they were not returned. Two weeks later, in Harris County, FP filed a petition to adopt and MTM along with a motion to transfer venue (without affidavit) to Fort Bend County where they resided and where they claimed the children had resided for the 6 months before suit. TDFPS filed an answer and objected the requested transfer. The trial court denied the motion and FP sought mandamus. TDFPS argued that the motion should be governed by a combination of TRCP, TCPRC and TFC and that the decision must be made only on the pleadings and the motion. TDFPS argued that without an affidavit there was no to support the requested transfer.

    The COA determined that TFC is the exclusive statutory scheme governing transfers in SAPCR cases and that TFC 155.204 does not require verified pleadings or affidavits. TDFPS also argued that they (as SMC) should be considered the parents for purposes of determining that a child resides where the parents reside and that their residence with the foster parents in a different county was only a “temporary absence.” The COA rejected these arguments based on holdings in Kerst (237 S.W.3d 441) and Gore (2007 Tex. App. LEXIS 6814). Finally, TDFPS argued that residence on the date suit was filed governed venue but the COA held that TFC 155.201(b) was clear and that because FP demonstrated that the children had continuously resided in Fort Bend County for six months before suit commenced, transfer was ministerial and mandatory. Mandamus granted. (Dissenting opinion filed).

  33. In the Interest of G.D.K., 2009 Tex. App. LEXIS 354 (Tex. App. – Amarillo January 21, 2009) (mem. opinion) (Cause No. 07-07-72-CV)

    M filed a motion to increase c/s in December 2005 and F was served. F answered in January 2006. Trial was initially set in May 2006. It was reset to July because of a death in the family of M’s attorney. The July setting was moved to August based on a motion for continuance filed by M’s attorney alleging trial conflicts for counsel representing both M and F. The August setting was moved to October by motion for continuance filed by M’s attorney because he was scheduled to be out of town. In September M amended her motion to seek retroactive support back to the date of service or answer. Case was tried in October. The court increased support and made the increase retroactive to October 1. M appealed contending it should have been made retroactive to January when F answered suit.

    The COA noted the trial court’s discretion in awarding retroactive support and found that even though continuances were granted for valid reasons, they were all granted at the request of M’s attorney and added five months to the process. Further, the COA noted that M’s request for retro support came only one month before trial. Under the circumstances the COA found no abuse of discretion.

  34. Baqdounes v. Baqdounes, 2009 Tex. App. LEXIS 574 (Tex. App. – Houston [1st Dist.] January 29, 2009) (mem. opinion) (Cause No. 01-07-1102-CV)

    In March 1988 V and S registered an informal marriage in Harris County. S gave birth to a Child A several months later. In January 1989 V abandoned S and the child. Sometime in 1990 S moved in with N and they lived together for at least the next 16 years. In 1994 S gave birth to Child B. After this birth, S filed for divorce from V (prior CL husband) and included a SAPCR relating to Child A only). A decree was signed in 1997 naming only Child A as the child of that marriage. S continued to live with N and had Child C in 1999. In 2005 S filed for divorce from N which included a SAPCR identifying Child B and Child C as children of the marriage. S claimed that her marriage to N began when her divorce from V ended in 1997. N filed a counter claim also identifying Child B and C as children of the marriage. N filed a summary judgment seeking to declare his marriage to S void claiming (1) that her marriage to V was not properly dissolved because that divorce proceeding did not include a SAPCR relating to Child B, born during the legal marriage of S and V and (2) claiming that S had married N within 30 days after her prior divorce from V. The trial court granted SJ in N’s favor and declared his marriage to S void.

    The COA held that N may not collaterally attack the divorce between S and V because the divorce decree in that case appears regular on its face for jurisdictional purposes and in that circumstance, extrinsic evidence is not allowed to attack the judgment collaterally. Second, TFC 6.602(a), (b) provides that a putative marriage becomes valid when a prior impediment (i.e. prior marriage not legally terminated) is removed and that S and N’s common law marriage relationship became valid immediately after her divorce from V notwithstanding TFC 6.801. Summary judgment reversed and case remanded.