Houston Bar Association - Family Law Section

Gray's Interesting Cases for March 2005

Updated and presented by David Gray

In the Interest of K.L.R., No. 12-03-00052-CV, not yet published (CA, Tyler).
H&W were divorced in '94 with one kid. W was the primary JMC. In '98 W filed a motion to modify to increase c/s and restrict H's visitation to which H filed a c/c requesting that he be the primary JMC & W pay him c/s. In '01 the T/C signed temp. orders giving H primary custody with W having telephone visits with the kid (W is supposedly nuts). During final trial, over W's objection, a "licensed counselor" testified in H's favor and the T/C ultimately awarded primary child custody to H. W appeals basically complaining that the T/C erred when it: (1) entered a temp. order effectively changing custody when H had no verified pleadings or attached aff. supporting such change and (2) admitted the "counselor's" testimony as her credentials were unreliable, her opinions were subjective and she didn't otherwise qualify as an expert.

CA reversed in part and affirmed in part. As to the (1), even if W was absolutely correct, a final judgment has been entered, thus any complaints about a temp. order are moot. In re: P.R., 994/411/2 & In re: J.F.C., 96/256/3. As to (2), where the field of study is not a hard science such as a social science or a field based primarily on experience/training as opposed to the scientific method, the requirement of reliability applies but with less vigor than to the hard science. Nenno v. State, 970/546/2. A person may be qualified as an expert to give an opinion in a soft science if:
1. the field of expertise is a legitimate one
2. the subject matter of such testimony is within the scope of such field
3. the testifier's testimony relies upon and/or utilizes the principles involved in the field
Hard science methods of validation, such as assessing the potential rate of error or subjecting a theory to peer review may be inappropriate for testing the reliability of a field of expertise outside the hard science. Nenno, supra. Since the "counselor" didn't testify as to a, b or c above, the admission of her testimony was erroneous.

Comment - This case seems to give a lesser standard for admission of soft science expert testimony as opposed to the strict standards of Daubert (509 U.S. 579) and Robinson, 923/549/2. This makes sense but the law isn't always sensible.
Lee v. Lee, No. 2-03-359-CV, not yet published (CA, Ft. Worth).
W filed for divorce. H & W met to discuss a property settlement without any 3rd party being present. H & W reached a settlement which was later typed up by W's atty. The agreement contained the §6.602 clause making the agreement non-revocable. H & W signed but H later revoked. W then filed for judgment which the T/C signed after finding that H couldn't revoke after he signed per §6.602(b). H appealed on the basis that you can not have a mediated settlement unless there was a mediator involved which wasn't the case here.

CA reversed. To have a binding mediated settlement agreement you must have: (1) a mediation and (2) a mediator.

Comment - Well this settles this question hopefully once and for all.
In the category of "I didn't know that." In the Interest of B.N.B., No. 4-04-00026-CV, not yet published (CA, San Antonio).
The A.G. sued F to establish paternity of a child and collect c/s. F didn't appear at trial as he was in jail so the A.G. proceeded without him (the hussies). Apparently the only evidence that the state had supplied c/s to the kid which would allow the state to receive retroactive c/s was the unsworn testimony of the A.G. Naturally being a default case, the A.G. won on every issue but F appealed claiming no evidence to support the T/C's judgment. Citing Banda v. Garcia, 955/270/2, the A.G. correctly stated the law that although an atty's statements must be under oath to be considered as evidence, this oath requirement is waived if the opponent fails to object when the opponent knows or should have known that an objection is necessary. Heck, I didn't know that; however, I've always objected so the issue hasn't ever risen - a case of a blind hog finding an acorn.

Well the CA gasped after learning that the A.G. actually stated the law correctly; however, there was one minor problem that the A.G. over looked. Banda isn't on point as F wasn't present at trial, in person or by an atty, so he couldn't possibly object nor could he have known to make an objection. Case reversed.

Comment - I just love finding legal points I didn't know with the icing on the cake being another case evidencing the ineptness of the A.G. C they can't win a default case even when the Respondent is in jail. Tee-hee-hee.