Houston Bar Association - Family Law Section

Gray's Interesting Cases for March, 2006

Updated and presented by David Gray

Russell v. Russell, No. 01-04-00984-CV, will not be published – memo opinion (CA, Houston–1st)
In the divorce trial, H’s inventory was struck for failure to comply with discovery (how dumb) but W had filed an inventory which listed many items as H’s sep. prop. Neither party offered W’s inventory into evidence altho she, H and the T/C referred to it numerous times and obviously used her inventory when dividing the parties’ prop. The T/C awarded W several of the properties which her inventory said was H’s sep. prop. saying “Even if some of the property is H’s sep. prop., the final property division is just and reasonable considering the circumstances.” (Talk about highlighting a reversible error). H appeals.

Reverse and remand for redivision. W argued that on appeal, H has the burden to show that clear and convincing evidence was admitted at trial to prove his sep. claims which wasn’t done here except for W’s inventory which was never admitted into evidence. The community presumption was not rebutted. H argued, and the CA found, that W judicially admitted the sep. character H’s property and is estopped to claim otherwise by filing and referring to her inventory which acknowledged the sep. character of H’s property.

Comment -- WOW! Filing an inventory judicially admits the character of the opposing party’s property. Double WOW! If your opposing party lists your property as sep. prop. on his/her inventory you don’t have to prove it up-- it’s judicially admitted even if the inventory isn’t admitted into evidence. Triple WOW! What’s really sad is that this revolutionary concept is not recognized by the CA as they have designated this opinion as a memorandum opinion which is not supposed to announce significant statements of the law. It’s kinda pathetic that our appellate courts (and their clerks) are so ignorant of family law that they don’t realize the significance of their own opinions. P.S. A smart atty in this situation will offer W’s inventory as a judicial admission and have the T/C admit it as such -- if the T/C won’t do so, prove up the sep. character of your client’s property.
Safady v. Safady, No. 01-04-00792-CV, not yet published (CA, Houston –1st).
W filed a motion to enforce a c/s order against H. H filed a c/c and a sep. motion to modify. W’s motion to enforce was set for trial (and H’s motion to modify?) but W failed to appear. The T/C denied any relief requested by W, canceled H’s c/s obligation, awarded H sole custody of the child, ordered W to pay c/s and awarded H’s atty fees against W. W appeals.

Reversed. Failure to appear doesn’t justify the T/C awarding H relief not pled by him in his pleadings. As H never plead for sole M/C, cancellation of c/s or atty fees, the T/C can’t award such relief.

Comment - Time and time again I’ve recommended that if you want something, plead for it. My thoughts were ignored again- thus this reversal. When will T/C’s and attys learn?
Roman v. Roman, No. 01-04-00541-CV, not yet published (CA, Houston -- 1st). Case of 1st impression. A married couple were attempting to have children by vitro fertilization (IVF) whereby H’s sperm is injected into W’s egg(s) in the lab and then the resulting embryo(s) are implanted in W. Prior to doing this H & W signed papers that said if the embryos are frozen and are still in existence upon the happening of certain events (including the parties’ divorce), the frozen embryos are to be destroyed. H filed for divorce and requested that the remaining frozen embryos be destroyed. The T/C found that the embryos were community property and awarded them to W to do with them as she sees fit. H appeals.
CA reverses. H & W’s voluntary agreement as to the disposition of frozen embryos prior to implantation upon the occurrence of certain events is valid, enforceable and not against the public policy of Texas.

Comment - Although never mentioned, if the embryos are community property (an issue not decided), I guess the parties’ agreement is viewed as a post nuptial agreement.
Bird v. O’Donnell, No. 03-04-00603-CV, will not be published– memo opinion (CA, Austin).
H & W divorced & H was ordered to provide, at his cost, medical ins. for the kids which he did until he lost his job. W had re-married and she could have the kids insured thru H2's employment. H & W agreed that W would furnish the medical ins. until H obtained new employment which he did 19 mos. later. H then offered to insure the kids thru his employment but H & W agreed that the kids would remain under H2's policy. H offered to reimburse W for the increased am’t she & H2 had to pay as medical ins. premiums when they added the kids to H2's policy if W would supply that info. W never supplied such. H2's medical ins. premium for him and W was $140/mo. When W added the kids, the premiums remained at $140/mo.-- no increase. W then sued H for 19 mos. of medical ins. premiums. T/C denied W’s request saying her claim made “absolutely not one ounce of legal or financial sense” and awarded H a $10,000 judgment against W for H’s atty fees. W appeals.

Affirmed. §154.182 (b) (2) says if H can’t insure and W does, H will pay W for the actual cost of insuring the kids. Since W incurred no cost for insuring the kids, there was no actual cost.

Comment – There is a case out there that says to the contrary. Kuddos to Judge Byrne of Austin and the Austin CA for using common sense in respect to the greedy W’s claim.
In the Interest of A.E.R., No. 2-05-057-CV, will not be published– memo opinion (CA, Ft. Worth).
H & W divorced with a QDRO dividing H’s military pension but not a word was said about W’s rights under the Survivor Benefit Plan or W’s right to medical & commissary benefits. Later W filed a motion to clarify the QDRO including the award to her of the rights of a surviving spouse under the Survivor Plan and medical, etc. benefits. The T/C clarified the QDRO per W’s request.

Upon appeal the CA reversed. The T/C has the right to clarify a QDRO if it’s ambiguous but it can’t change the property division. The survivor benefits are substantial rights which were not awarded to W originally; thus, the T/C can’t award them to her now as to do so would substantially change the property division.
Crane v. Crane, No. 2-04-162-CV, not yet published (CA, Ft. Worth).
H & W divorced in Sept. ‘99 and H was ordered to pay spousal maintenance until the earlier of Dec. ‘02 (more than 3 yrs.) or she remarries. In July ‘03 W files a motion to continue the maintenance indefinitely as she is still suffering from a physical condition which prevents her from earning a living. At trial W’s doctor said her condition hadn’t changed since Sept. ‘99. The T/C found that W is physically incapable of earning a living due to a physical disability (as it did originally); however, W has not shown a material and substantial change of circumstance to justify a continuance of such maintenance. W appeals.

CA reverses. §8.054(b) allows a T/C to order maintenance for an indefinite period as long as a disability continues. §8.057 allows a T/C to reduce such maintenance upon a showing of material/substantial change of circumstances. W’s suit was filed per §8.054 as her physical disability had not changed, not to reduce her maintenance thus the §8.057 material/substantial change burden does not exist for her. All she has to do is show no change in her physical condition thus allowing the T/C, in its discretion, to continue the maintenance.

Comment – Maybe I’m being picky but §8.054 allows the T/C to order maintenance for an “indefinite” period but that didn’t happen here. The T/C set a “definite” period for maintenance, i.e. it ended Dec. ‘02. Does this make a difference? Who knows.