Houston Bar Association - Family Law Section

Gray's Interesting Cases for March, 2009

Updated and presented by Sallee S. Smyth

Beckner v. Beckner, 2009 Tex. App. LEXIS 759 (Tex. App. – Fort Worth February 5, 2009) (Cause No. 02-07-456-CV) (mem. opinion)
H and W purchased a rental property for cash. Both parties identified the rental property as community on their respective inventories. Both parties sought reimbursement. W testified that she withdrew $35K from her 401K plan to fund part of the purchase and H agreed that this testimony was correct. H testified that he withdrew $28K from his 401K plan to fund part of the purchase. The jury returned an advisory verdict of almost $35,000 on W’s reimbursement claim. The trial court ordered the property sold and ordered the community estate to reimburse W for the amount as found by the jury, with each party to bear ½ of this amount. The court also awarded H reimbursement against the community in the amount of almost $10K with each party to pay ½. After calculating these offsetting claims, the net reimbursement award to W’s separate estate was approximately $12,500. H appealed complaining that W offered no evidence to prove that the funds in her 401K were her separate property.

The COA agreed and modified the decree to delete the $12,500 judgment in favor of W and to add an approximate $5,000 judgment in favor of H for his reimbursement claim which W did not challenge on appeal.
In re R.E.D., 2009 Tex. App. LEXIS 816 (Tex. App. – Houston [1st] February 5, 2009) (Cause No. 01-08-727-CV) (orig. proceeding)
H filed for divorce and H and W entered into agreed mutual temporary injunctions which included the standard provision preventing the parties from selling, transferring, assigning or alienating any property (either s/p or c/p) during divorce unless authorized by court order. During an ancillary hearing H testified that he had sold stock in a brokerage account and that he used $200,000 for a payment to his children’s trust fund (a payment not due for another 12 months) and deposited $367,000 into a checking account. W filed a motion for enforcement alleging violation of the temporary injunction. At the hearing, H admitted that he sold the stock because he wanted to and not because he needed to. Further H admitted that he chose not to sell his own separate property stock but instead to sell the specific stock in the brokerage account even though the character of this stock remained in dispute. The trial court found H in contempt and sentenced him to 10 days in jail and thereafter until he paid $367,000 into the registry of the court. H filed for habeas corpus relief raising various complaints about lack of specificity in the motion, lack of proper notice, ambiguity in the underlying order and no evidence of intent.

The COA denied each of these arguments. H further argued that the court could not keep him incarcerated until he paid the funds into the court registry because this amounted to imprisonment for a debt obligation. The COA held that a party who has the right to control and dispose of the community estate but reduces that property to cash is not a debtor to their spouse but instead should be treated as a trustee who can be compelled to account for their management and disposition of the assets. The COA cited to 1961 Tex. Sup. Ct. authority permitting a court to hold a trustee in contempt for willfully refusing to obey a court order to pay over funds into the registry of the court. (347 S.W.2d 938) Habeas was denied.
Baggs v. Becker, 2009 Tex. App. LEXIS 845 (Tex. App. – Austin February 6, 2009) (mem. opinion) (Cause No. 03-07-731-CV) (mem. opinion)
H and W divorced in Bastrop County, Texas in 1999 and they were named JMC’s of their two children and gave H the right to establish domicile. Maternal grandparents (residents of Florida) were given possessory rights. A year later H moved to Florida with the children. In 2002 the son moved back to Texas to live with his paternal grandparents. In 2003 the daughter moved in with maternal grandparents. In 2003 H was deployed to Iraq. When he returned he regained custody of the son but the daughter remained with her MGP’s. Each year H would execute a POA allowing MGP’s to enroll the daughter in school and activities and provide for her medical care. In 2006 H notified the MGP’s that he would not be executing another POA and that he wanted the daughter to come and live with him. Despite this notice he did not come for the child and so MGP’s filed a MTM in Bastrop County, Texas seeking custody. H responded and asked the Texas court to decline their UCCJEA jurisdiction because Texas was an inconvenient forum. The trial court granted the motion finding that the child had not resided in Texas for 7 years, considering also the distance between TX and FLA, the financial circumstances of the parties and the location of evidence. The court however issued temporary orders naming MGP”s custodians with the right to designate residence so they could enroll the child in school and gave H visitation until the case could commence in a FLA court. MGP’s appeal the decision.

Even though residents of FLA, the grandparents fought to keep the case in Texas because they did not have standing to file an action for custody under FLA law and they argued that this fact weighed against a decision to decline jurisdiction because the law of FLA would not allow custody to be addressed. The COA rejected this argument (as well as all others) because the TX trial court included a provision in the temporary orders that required the case to come back to Texas if the FLA court refused to hear the dispute for any reason. Decision to decline jurisdiction was affirmed.
In the Interest if D.M.D., 2009 Tex. App. LEXIS 854 (Tex. App. – Dallas February 6, 2009) (Cause No. 05-07-1045-CV) (mem. opinion)
H and W divorced in Kautman County, Texas in 2000. W was awarded primary custody of the child and H claims the decree included a domicile restriction to Kaufman County. W moved to Dallas before the child began kindergarten and filed a MTM. By court order W was eventually designated as the parent which exclusive right to establish residence and the order provided that the child’s current residence was in Dallas County. W remarried in 2006 and filed a motion to modify again. Her motion advised the court that she would be moving to Austin to relocate with her new husband for employment purposes and she sought modify possession to an over 100 mile schedule. Trial was set for September but not reached. W moved to Austin and the child attended school there for 2006-2007 school year. The case was tried in April 2007. During trial H asked for primary custody. The trial court left custody with W if she resided in Kaufman or contiguous counties, otherwise H would have the custody and W would have standard possession. W appealed.

The COA reversed finding that the focus must be on the best interest of the child and sometimes this also means what is best for the primary custodian at the expense of the visiting parent. The COA examined the positive facts for the child to remain in Austin and weighed these against the H’s desire to be close to the child and determined that the overwhelming weight of the evidence supported that the child’s best interests were served with W in Austin.
In the Interest of L.N.E., L.M.E. and L.M.E., 2009 Tex. App. LEXIS 844 (Tex. App. – Dallas February 6, 2009) (Cause No. 05-07-1712-CV) (mem. opinion)
H and W divorced in 1990. At the time of divorce their 3 daughters were all under the age of 5. (How scary!) H and W were named JMC. The decree recited that H would pay college tuition for each child if they began school within 2 years after HS graduation and remained enrolled as full time students. In 2003 the decree was modified to give maternal grandparents primary custody of all children. In 2007 Grandfather filed a motion for clarification of the college tuition provisions claiming they were ambiguous and therefore unenforceable by contempt. H responded, pointing out that GF was not a party to the underlying decree. GM and W then joined in an amended motion. After a non-evidentiary hearing the trial court denied the requested clarification, concluding that although the provisions were ambiguous and unenforceable by contempt, they were contractual and the court had no authority to clarify them. GP’s appeal. H argued that GP’s lack standing because they were not a party to the underlying decree.

The COA agrees, finding that a request for clarification under Chapter 157 may be sought only by the parties to the order or persons who were parties to the proceeding in which the order was signed. GP were neither. The COA vacated the underlying order denying relief and ordered dismissal of all GP’s claims.
Seymour v. Seymour, 2009 Tex. App. LEXIS 1235 (Tex. App. – Houston [14th Dist.] February 10, 2009) (Cause No. 14-07-280-CV) (mem. opinion)
H and W married in 2001. H filed for divorce in late 2005 and alleged no fault grounds. W filed a waiver of citation. Several months later the case was DWOP’d. Three days later H appeared and proved up the divorce. Two days later H and W filed an unverified motion to reinstate which was granted and the court signed a final decree which recited that the parties agreed to its terms. H signed the decree, W did not. W filed a restricted appeal.

The COA determined that W’s participate in the motion to reinstate constituted participation in the event which led to the court’s final judgment and therefore she was not entitled to a restricted appeal. Further the COA held that even though verification of a motion to reinstate is mandatory, because the motion was signed by both parties, this was tantamount to a verified motion citing 905 S.W.2d 686. Decree affirmed.
Wright v. Wright, 2009 Tex. App. LEXIS 895 (Tex. App. – San Antonio February 11, 2009) (Cause No. 04-08-175-CV) (mem. opinion)
W filed for divorce from H. Several months later, H and W announced to the court that they were negotiating a settlement. Both parties then appeared before the court where W testified that the parties had signed a settlement agreement and a copy was presented to the court. W also testified about the agreement. At the conclusion the court granted the divorce and found that the agreement contained a fair and equitable division of property. The court stated that the agreement was approved and the court was making the agreement the order of the court. The court gave the parties an entry date for the decree. Thereafter the parties appeared for a hearing on W’s motion to enter a decree. H filed an objection to entry and attempted to withdraw his consent to the settlement. H asserted that there was no evidence offered to support the division and that issues concerning reimbursement and EC were unresolved. The trial court determined that H did not repudiate timely and signed the decree. H appealed. H argued that the agreement was unenforceable because it had not been properly filed with the court per TRCP Rule 11.

The COA held that there is no specific timing requirement under Rule 11 so long as the agreement is filed with the court before enforcement of the agreement is sought. Further the COA held that there is no requirement that the Rule 11 be filed before a party withdraws their consent. The COA determined that the court’s pronouncement was an effective rendition and therefore H’s attempt to repudiate was not timely. The COA found the agreement to be complete and enforceable and affirmed the decree.
Payne v. Payne, 2009 Tex. App. LEXIS 897 (Tex. App. – San Antonio February 11, 2009) (Cause No. 04-08-576-CV) (mem. opinion)
H and W married in 1989. In 2005 W filed for divorce. In May 2006 the court informed the parties that it would grant the divorce but it did not sign a decree at that time. Afterwards, H’s attorney filed a motion to withdraw. W filed a motion to sign a decree. In October the trial court granted withdrawal and notified the parties of a hearing date on W’s motion. H did not appear for this hearing and the court signed a final decree. H discovered this the very same day and filed several motions with the court. Despite filing these motions, H did not file a notice of appeal. Over the next year, H and W continued to litigate over various enforcement and modification issues. Still dissatisfied with the property division H filed a bill of review in 2008. After a hearing the trial court denied relief and H appealed.

The COA held that because H did not pursue the available remedy of filing a direct appeal, he failed to use due diligence to pursue all available remedies and was therefore not entitled to bill of review relief.
Torres v. Sierra, 2009 Tex. App. LEXIS 882 (Tex. App. – San Antonio February 11, 2009) (Cause No. 04-08-516-CV) (mem. opinion)
W filed petition for divorce. H filed a counter petition. The parties subsequently filed an AID which awarded H specified real property subject to an agreement that he pay W $70,000. The agreement contemplated the sale of the property to produce the proceeds from which W could be paid. The AID was incorporated into a final decree. When H did not pay, W filed suit to enforce. After an initial hearing the court reset the case for a later date apparently to permit H to obtain approval for a loan. When the loan was not obtained by that date the court signed an order awarding the property to W for the purpose of placing it for sale immediately and awarding W $90,000 from the proceeds which included her original $70,000 award plus an additional amount for sanctions. The balance of any sales proceeds were ordered paid to H. H appealed. On appeal H conceded that the court has a right to enforce a property division but that this specific order had the effect of amending and modifying the division. H argued that the decree awarded the property to him and any order providing otherwise is an impermissible modification.

The COA determined that the award of the property to H was specifically conditioned upon his payment of $70K to W and that because he failed to satisfy the condition precedent, full title in the property never fully vested in him. As a result, the order awarding the property to W for sale did not modify the decree. Judgment affirmed.
Michels v. Zeifman, 2009 Tex. App. LEXIS 1017 (Tex. App. – Austin February 12, 2009) (Cause No. 03-08-287-CV) (mem. opinion)
H and W divorced in 1998 pursuant to an agreed decree which included provisions governing which elementary schools their 2 kids would attend. In 2004 W obtained a modification order which gave her the exclusive right to make educational decisions as to one child. W then removed the child from public school in Austin and enrolled her in private school. H appealed and in 2006 the Austin court reversed. (212 S.W.3d 582)

After the appellate decision but before mandate, W sued Austin ISD seeking an injunction which prohibited the district from enrolling the child in any AISD school. The basis for the injunction was the underlying modification order (recently reversed) and H was not named as a party to this suit. When H discovered the suit he intervened, filed a motion to dismiss and a motion for sanctions. The next day W filed a Rule 11 agreement in which she and AISD agreed that AISD would not enroll the child without an order permitting them to do so and in exchange she nonsuited her case and filed a motion to strike H’s intervention. The court granted the motion to strike the intervention as moot and denied H’s motion for sanctions. H appealed. This decision was likewise reversed and remanded. (229 S.W.3d 460).

Through the date of this opinion, H has not pursued sanctions on remand and no final judgment has been entered. Nevertheless, in December 2007 H filed suit against W and the attorneys representing her for frivolous filing, fraud, negligence, malicious prosecution, abuse of process, and conspiracy based on W’s suit for injunctions against AISD. W and attorney defendants filed motions for summary judgment, all of which were granted, dismissing all claims except malicious prosecution with prejudice. W appealed contending the MP claim should have been dismissed with prejudice. H cross-appealed asserting error in the granting of the summary judgment. The attorney defendants asserted the litigation privilege as an absolute bar to all of H’s claims. The privilege protects attorneys from personal liability to third parties for “conduct that requires the office, professional training, skill, and authority of an attorney.” The privilege focuses on the attorney conduct rather than whether the conduct was meritorious within the underlying litigation. H contended that the attorney actions arose from fraud and thus the privilege did not apply.

The COA found that attorneys owed no duty to H as a non-client in litigation and that all of their actions fell within the type of conduct protected by the privilege. The COA also held that CPRC Chapter 9 does not create an independent cause of action upon which suit may be filed for frivolous pleadings. Further, the COA determined that there is no independent tort liability for a parents failure to disclose significant information regarding the child as imposed in an order under TFC 153.076. Because the underlying torts failed, the conspiracy claim likewise failed. The COA found that the malicious prosecution claim had no merit because H was not a party to the underlying injunctive suit and that this claim should have been dismissed with prejudice. The COA reversed the ruling dismissing the claim without prejudice and rendered judgment dismissing it with prejudice.
In the Interest of A.L.E., 2009 Tex. App. LEXIS 982 (Tex. App. – Houston [14th Dist.] February 12, 2009) (14-07-329-CV)
No significant law … just could not resist sharing Mom’s argument.

M and F, both drug abusers, had a child in 1995 and then separated. The child remained with M. In 2001, after F had been sober for several years, the parties entered into an agreed order naming them JMC, giving M the right to establish domicile and giving F an SPO. In 2006 F filed a MTM seeking sole custody based on M’s continued drug use. M failed drug testing. After trial the parties remained JMC, F was named primary and M was given unsupervised visitation provided she tested clean for 3 years and if there was a negative test, visitation would be supervised. M appealed. On appeal M challenged the finding of a material and substantial change because … are you ready? … the evidence established that she had current drug and alcohol problems but the evidence also demonstrated that she had these same problems at the time of the original order and therefore there could be no material and substantial change.

With a straight face the COA noted that the change can relate to any conservator or the child and that the evidence did in fact support other changes which justified modification. M also complained about the conditions placed on her visitation and argued that they gave F control over her visits. COA disagreed finding that F had only to review the testing results determined by third party professionals and his discretion was not involved. Further the terms and conditions for her to maintain unsupervised visits were clear in the order. Judgment affirmed.
In re Coppock, 2009 Tex. LEXIS 29 (Tex. Sup. Ct. February 13, 2009) (Cause No. 08-93)
H and W divorced in 2003 pursuant to a decree which incorporated an MSA. The MSA contained permanent injunctions which prevented the parties from communicating to one another in a coarse or offensive manner. Over the next two years W communicated with H via phone and email in a manner that H felt violated the decree. H brought an enforcement action and the court found W guilty of 84 counts and sentenced her to three consecutive 180 day periods of imprisonment. The court suspended her sentence and placed her on probation for 3 years on the condition that she spend 4 nights in jail and pay attorneys fees. When W failed to show for her incarceration the court issued a capias. The COA denied W’s writ of habeas corpus. Before the Supreme Court W argued that the underlying injunction violated her constitutional right of free speech and was too vague to be enforced by contempt.

The court did not reach either of W’s points instead granting relief because the specific injunctive provisions of the decree contained no decretal, order or command language. Provisions which made the injunctions binding on the parties were insufficient to make the terms an order enforceable by the court’s contempt power.
In the Interest of A.J.P., 2009 Tex. App. LEXIS 1060 (tex. App. – Dallas February 17, 2009) (Cause No. 05-07-1772-CV) (mem. opinion)
M advised F that she was pregnant and he denied paternity. When the child was born she gave the child her fiancee’s last name. Two years later, F filed suit to adjudicate parentage. The court named the parties temporary JMC and gave F visitation. The parties mediated and resolved all issues except the child’s name and the amount of retroactive child support. Ten days before trial F amended his pleadings to ask that the child be given his last name but the petition was not verified. At trial the court ordered retro support but denied the name change because the pleading was not verified. F appealed only the name change. F claimed that verification is not required in a suit to adjudicate parentage brought under Chapter 160. F argued that the verification requirement of TFC§45.002 applied only to suits brought solely for the purpose of a name change.

The COA determined that because Chapter 160 allows the joinder of other proceedings within a suit to adjudicate parentage and because Chapter 45 provides the only directives within the Family Code as to what is required to change the name of a child, the two must be harmonized. As a result, the COA determined that when a name change is sought within a parentage action the pleading must be verified and the court did not abuse its discretion in denying F’s request in the absence of a verified petition.
In the interest of A.G.C., 2009 Tex. App. LEXIS 1121 (Tex. App. – Houston [14th Dist.] February 19, 2009) (Cause No. 14-07-820-CV)
M originally filed a SAPCR proceeding against F to adjudicate parentage but later amended her pleadings to seek a termination of F’s parental rights. The parties participated in mediation and signed a mediated settlement agreement which provided that F would execute an affidavit of relinquishment in exchange for terms which allowed him to continue visits with the child pursuant to TFC §161.2061 under strenuous terms and conditions which included drug testing. F signed the affidavit of relinquishment the same day as mediation. The MSA also provided that the mediator would serve as the arbitrator for any disagreements as to the final order, its interpretation and performance. The parties met with the mediator on 2 occasions regarding the final order. Just before the 60 day revocation period expired, M and her attorneys appeared in court with F’s attorney and the amicus and offered testimony in support of termination. Both sides submitted an order. The court signed M’s version. Two days later (just after the 60 day period), F filed a revocation of his affidavit. F filed several post-judgment motions alleging that the affidavit was not signed voluntarily, that the evidence did not support termination, and that the court erred in failing to consider a psychological report which had been filed after the MSA had been signed. M moved to strike F’s affidavit filed with his MNT which the trial court granted. The trial court refused to allow F to present evidence at the MNT hearing so F’s counsel made an offer of proof. The court denied the MNT and F appealed.

F complained that the AOR was ineffective because it failed to designate a prospective adoptive parent as required by TFC 161.103(b)(12) but the COA determined that in the case of a private settlement where no adoption was contemplated this requirement was not necessary. H also argued that the AOR was involuntary because the post-termination visitation was unenforceable under TFC 161.2061 since the visitation would terminate upon a future adoption of the child and it was his belief that he would have rights to visit until the child turned 18. F also argued that the visitation statute relied on was only applicable to TDPRS cases. The COA rejected this argument determining that since TDPRS was not a party, their consent to the visitation was not required and that since the MSA referred to the statute and F and his attorneys signed the MSA they were bound by it. M conceded that disputes existed as to the interpretation of the MSA and that the order should be set aside and the matter referred to arbitration to resolve those drafting disputes. COA remanded the matter.
In the Interest of B.N.A., 2009 Tex. App. LEXIS 1242 (Tex. App. – Dallas February 24, 2009) (Cause No. 05-07-1008-CV)
The AG filed a petition to establish parentage between F and child in 1991. F admitted paternity and agreed to pay c/s. F was ordered to make all payments through the AG’s office. F became delinquent in 2001. In 2006 F filed a MTM to reduce his support and to recalculate his arrearage payments. The AG did not file a response, counter claim or cross claim but appeared at the pre-trial hearing and signed the pretrial order setting the case for trial. M and F appeared at the hearing but the AG did not. F admitted testimony of his reduced income and the court granted modification. F’s attorney also calculated his arrearage and the court granted a judgment in favor of M for $18,000 which F agreed to pay at the rate of $50/month. The order directed the child support disbursement unit to direct payments to the guardian ad litem who would then disseminate as provided. The order also enjoined the AG from taking any further action in the case. The next day the AG filed a motion for rehearing or alternatively for a new trial, claiming their failure to appeal was caused by a calendaring mistake and arguing that they were asserting arrearages in excess of $60,000. At the hearing on the AG’s motion the AG stated that it would not pursue a recalculation of arrearage but that it disagreed with some other issues contained in the order. The court denied the motion. While the motion was pending the AG filed an administrative writ of withholding. F moved to dismiss the writ and requested attorneys fees contending that the writ was frivolous pursuant to CPRC §105.002. The court agreed, dismissed the writ and awarded F $1000 in fees. The AG appealed.

The COA agreed that the trial court’s order may not direct the AG to remit payments to anyone other than the obligee and may not enjoin the AG from taking other action. The COA determined that the AG had sufficient notice of F’s request to recalculate arrearages and that the AG waived their right to complain because it abandoned this part of its motion for rehearing. The COA also determined that the administrative writ of withholding did not constitute a cause of action by the AG against F and as a result, the award of fees and costs under CPRC 105.002 was not authorized. All other aspects of the modification order were affirmed.
Hildalgo v. Hildalgo, 2009 Tex. App. LEXIS 1292 (Tex. App. – Dallas February 25, 2009) (Cause No. 05-06-966-CV) (consolidated mandamus and appeal)
The opinion issued on 8/20/08 (2008 Tex. App. LEXIS 6295) and reported in the September 3, 2008 Interesting Case Summaries is withdrawn and replaced by this opinion.

H and W divorced in California in 2002. The decree incorporated a settlement wherein H would pay W spousal support and premiums on a life insurance policy as security. In 2003 W registered the CA decree in Texas as a foreign judgment pursuant to TCPRC §35.003 and sought to enforce the spousal support payments. The parties agreed to modify the marriage settlement and the court signed an order to that effect in March 2005. Several months later W filed to enforce payment of the life insurance premiums. H claimed he was no longer required to pay because he had retired. On January 3, 2006 the court signed an order denying W’s enforcement finding that H’s obligation to pay the premiums had terminated. W filed a motion for rehearing and asked the court to enter an order that required H to resume payments if he went back to work before turning age 65. On April 4, 2006 (91 days after the prior order) the court issued a “ruling” which vacated its prior order and made new ones, including ordering reimbursement to W of insurance premiums and awarding W attorneys fees. H filed a timely motion for new trial and asked the court to reinstate the original order. The trial court granted H’s motion on July 5, 2006 (Day 185). W filed a notice of appeal and petition for mandamus.

The original August 20, 2008 opinion found the 1/3/06 order to be a final order. W’s motion for rehearing sought a substantive change in the order and was therefore a Rule 329b motion to modify which extended the court’s plenary power. This motion was overruled by operation of law on Day 75 (March 19) however the court has an additional 30 days to act. The COA found the court’s April 2006 “ruling” to be a final written order which expressly vacated the 1/3/06 judgment which in effect granted a new trial within its plenary power. As such, the case was returned to the court’s docket as if no judgment had ever been entered. Under TRCP 329b(e) if the court grants a new trial, it may only change its mind and “ungrant” the motion within the original 75 days after judgment. Because the July 5, 2006 order which sought to “ungrant” the new trial and reinstate the January 2006 order was signed outside this time period, it was void and mandamus was granted.

The new February 25, 2009 opinion also holds that the 1/3/06 order is a final order and that since W’s motion for rehearing sought a substantive change in the order, it was therefore a Rule 329b motion to modify which extended the court’s plenary power. Likewise, the substituted opinion holds that the April 2006 “ruling,” which expressly vacated the 1/3/06 judgment, was effective to grant a new trial within the trial court’s plenary power. Thereafter on July 5, 2006 the trial court signed an order re-confirming the January 3 order as its final order at H’s request. This July order set aside the April ruling. Originally, the COA held that this was void because the trial court did not “ungrant” the new trial within the original 75 day period as required by the Texas Supreme Court opinion in Porter v. Vick, 888 S.W.2d 789 (Tex. 1994) and mandamus was granted. On August 29, 2008 (just over a week after the first opinion issued) the Supreme Court overruled Porter in the case of In re Baylor Med. Ctr., 2008 WL 3991132 or 2008 Tex. LEXIS 762, holding that once a new trial has been granted, the trial court’s plenary power is no longer at issue and the court may confirm any prior ruling or issue a new one. As a result of this decision, H filed a motion for rehearing in the COA In the substituted opinion, the COA determined that the July 2006 order was now a new final order and that because W failed to assign any error to the trial court’s substantive decision to deny her motion to enforce (as originally decided in the January order and reconfirmed in the July order) W had not preserved error and the January 2006 order is now affirmed. WHEW … aren’t you glad we are finished with that one!
In the Interest of S.A.A. and J.D.A., 2009 Tex. App. LEXIS 1259 (Tex. App. – Dallas February 25, 2009) (Cause No. 05-08-562-CV)
W filed for divorce and alleged no fault grounds. W obtained a default judgment which was later vacated upon an agreed MNT citing W’s pregnancy at the time of the divorce. H filed a counter claim alleging adultery. After trial the parties could not agree on terms for the decree and H filed a motion for entry. At the hearing, the court sua sponte made a finding of “mutual adultery.” H appealed and claimed that W had not pled adultery and that the issue had not been tried by consent. The record contained no evidence of H’s adultery and the COA agreed that the sua sponte finding was an abuse of discretion.

The COA ordered the decree reformed to remove the word “mutual” before adultery in the decree. H also complained about the court’s decision to award him 100% of the parties’ tax liability (approx. $7600). Based on the parties disparity of resources and H’s control over the tax and financial issues of the parties during the marriage the COA determined there was no abuse of discretion and the remainder of the judgment was affirmed.
Lauderdale v. Papadopolous, 2009 Tex. App. LEXIS 1320 (Tex. App. – Houston [1st Dist.] February 26, 2009) (Cause No. 01-07-191-CV) (mem. opinion)
AAL/GAL was appointed in divorce proceedings between H and W. In 2002 the court signed a final decree which appointed W SMC. The decree awarded fees to the AAL/GAL and recited that she had performed her duties in a satisfactory manner. The decree apportioned the balance of the fees between H and W. Neither party appealed. W did not pay her share but instead filed a grievance against AAL/GAL which was dismissed. W then filed bankruptcy and the bankruptcy court determined that the debt to the AAL/GAL was not dischargeable. AAL/GAL then sued to enforce the judgment in bankruptcy court and obtained a summary judgment ordering W to pay the amount owing. In 2006 W filed suit against the AAL/GAL for breach of fiduciary duty, intentional infliction of emotional distress, professional gross negligence, bad faith, malice, neglect, and unjust enrichment on the grounds that the fees were excessive and unconscionable. W’s suit was based on the attorney client relationship between AAL/GAL and the minor children. W sought recovery of all the fees she spent in the divorce regarding the minor children. AAL/GAL filed a motion to dismiss for lack of jurisdiction arguing that neither the children nor W had standing to sue. AAL/GAL also filed an answer, subject to her motion to dismiss, asserting the defense of res judicata, statute of limitations and immunity. AAL/GAL obtained a protective order preventing discovery pending the outcome of her motion to dismiss. AAL/GAL moved from summary judgment. W responded and filed an affidavit which included a verification of all facts and allegations contained in her response. W also include some additional summary judgment evidence which included a document entitled “Exhibit Related to Civil Damages” which contained a list of trial court findings from the divorce attempting to connect these findings with the claims against the AAL/GAL. The AAL/GAL challenged this exhibit and the trail court struck it. The court granted summary judgment in favor of the AAL/GAL and dismissed W’s claims with prejudice. W appealed.

The COA determined that because W’s claims involved actions taken by the AAL/GAL during the divorce, the AAL/GAL had immunity under TFC Chapter 107. Although there are exceptions for gross negligence, bad faith, malice and conscious indifference, the decree provided that AAL/GAL had performed satisfactorily and W did not appeal this determination. Further, this finding also conclusively supported the affirmative defense of res judicata which barred W’s claims. W also complained that the trial court erred in ruling on the summary judgments in the absence of relevant discovery that W had requested. The COA concluded that because W failed to challenge the protective order on discovery W failed to preserve this issue. The judgment of the trial court was affirmed.
In the Interest of K.E.L., 2009 Tex. App. LEXIS 1382 (Tex. App. – Beaumont February 26, 2009) (Cause No. 09-08-14-CV) (mem. opinion)
F appeals from a modification order which switched his designation of primary parent to M. The facts and law discussed are not significant but note that the court admitted the F’s “My Space” page (containing sexually oriented statements) into evidence and considered it in making a decision. Trial court judgment affirmed.
Clayton v. MONY Life Ins. Co., 2009 Tex. App. LEXIS 1404 (Tex. App. – Beaumont February 26, 2009) (Cause No. 09-07-527-CV)
Shortly before divorce H paid $400,000 to MONY and executed an annuity contract that would require MONY to pay him on a monthly basis. The parties divorced in June 2003 and W was awarded 50% of the annuity in H’s name and the decree specified that a QDRO would be signed. The decree also provided that payments due to one spouse but made to the other would be held in trust and should be paid over within 5 days. MONY learned of the divorce in July 2003 and stopped making monthly payments to H. Instead, the began depositing the money into a non-interest bearing account under their own internal procedures. About 1½ years later, H sued MONY, his ex and her lawyer on contract and tort claims all related to the annuity. About six months after suit was filed, MONY asserted a plea in interpleader and upon hearing the plea the court ordered MONY to deposit the monthly payments into the registry of the court less attorneys fees awarded against the H. The court dismissed with prejudice all claims against MONY and severed the interpleader action making it final and appealable. H appealed. The opinion offers a good discussion of the interpleader process, both historically and under current law. MONY had the burden to establish rival claims. Because the decree awarded 50% of the annuity to W and the annuity contract provided for monthly payments to H only, the COA determined that rival claims existed. H argued that the court’s order directing payment to the registry had the effect of “re-writing” the annuity contract.

The COA disagreed stating that the order followed the terms of the divorce decree. H argued that MONY should not have been awarded fees because they delayed filing the interpleader for more than two years after they received notice of the divorce. The COA agreed that MONY failed to offer justification for the delay. H further argued that the court erred in dismissing pre-interpleader claims that he had against MONY for terminating annuity payments to him under his contract and for failing to deposit payments into an interest bearing account. The COA agreed that these claims should not have been dismissed as H had a right to have them adjudicated on the merits. The COA affirmed the order instructing MONY to deposit the monthly annuity payments into the court registry, reversed the award of attorney fees and remanded the pre-interpleader claims back to the trial court for further proceedings.
In the Interest of J.M.T., 2009 Tex. App. LEXIS 1298 (Tex. App. – Eastland February 26, 2009) (Cause No. 11-07-331-CV)
Paternal GP’s brought suit seeking to be named JMC of their grandchild. Maternal GP’s intervened and requested possession and access. Paternal GP’s amended their claims and sought to terminate the parental rights of both biological parents and to adopt the child. Both parents executed affidavits of relinquishment. The case went to trial where Maternal GP’s did not oppose Paternal GP”s termination or adoption request. The court granted both at the beginning of the hearing and then proceeded to hear evidence on the issue of grandparent possession and access which was contested. The court awarded Maternal GP’s access one weekend a month with some time at Thanksgiving and Christmas. Paternal GP’s appealed.

The COA determined that TFC §153.433(2) (requiring a GP to overcome the presumption that a fit parent acts in the child’s best interest) is applicable to the newly adoptive parents in this case. The evidence suggested that the new parents would continuing allowing access by the other GP’s but they simply did not want this to occur on a specific schedule as set out in an order. Because there was no evidence that access to the child would be denied in the future and because there was no evidence that the child would be significantly impaired absent visitation, the COA determined that the trial court abused its discretion in granting visitation, reversed the decision and rendered judgment on the possession issue.
In the Interest of Z.N.H., 2009 Tex. App. LEXIS 1300 (Tex. App. – Eastland February 26, 2009) (Cause No. 11-07-232-CV)
M and F divorced in 1998 when their child was three. M was named SMC. F remarried in 1999. M remarried in 2000. In 2001 the court entered an agreed modification order limiting the child’s residence to Taylor County. In 2006 M informed F that she wanted to move the child to Dallas where her husband was taking a job. M filed a MTM requesting the court to lift the domicile restriction. F, pro se, opposed the request and asked to be named JMC with the right to establish residence in Taylor County. At some point M filed a motion to substitute new counsel (Meyers) which was approved. F filed a motion to disqualify Meyers because he and his wife had consulted with him themselves about the modification suit and had almost hired him.

The court denied the motion to disqualify. The case proceeded to a 4 day jury trial. The jury found in favor of M and the court granted her relief based on the jury’s verdict. F appealed and challenged the trial court’s decision to deny his motion to disqualify and raised legal and factual insufficiency arguments in connection with the jury’s verdict. The evidence established that F and his wife consulted with Meyers after they learned that W had bought a new house in Dallas. They discussed the possibility of representation in a suit to stop W from moving. Meyers testified that he had no recollection of the couple and did not remember anything that they discussed. The court denied the motion citing Meyer’s reputation for ethical conduct.

The COA held that F met the definition of client under TRE 503(a)(1) as a person “who consults with a lawyer with a view to obtaining professional legal services from that lawyer.” As such, once F established he was a former client of Meyers, Meyers could not represent M in a suit involving the same or a substantially related matter. The fact that Meyers could not remember the meeting or the information discussed was not relevant because once the former attorney client relationship was established this created a presumption that confidential information was shared. The COA determined that the trial court abused its discretion in denying disqualification. The COA reviewed the evidence and found it sufficient to support the jury’s verdict but nevertheless reversed the trial court’s order finding that F was entitled to a new trial because Meyers should not have been allowed to try the case as M’s attorney.
In the Matter of the Marriage of Campbell, 2009 Tex. App. LEXIS 1407 (Tex. App. – Texarkana February 27, 2009) (Cause No. 06-08-88-CV)
W filed for divorce and asked that she and H, who was in federal prison, be named JMC of the children. Prior to his incarceration, H lived with his mother and the children split time between W’s residence and the residence of H and GM. H had granted his mother (Carolyn) a power of attorney to act for him with respect to the divorce proceedings. M consented to temporary orders naming the parties JMC and setting up a visitation schedule. Carolyn did not file any pleadings on behalf of her son or on her own behalf. In response to deposition by written questions H asked that his mother be allowed to exercise his visitation until he was released from prison. At trial, W admitted that the children had a close relationship with GM and further stated she had no objection if GM took the children to the prison to visit their father once each month. The court appointed H and W as JMC and gave GM visitation on 1st and 3rd weekends and time at Christmas. The decree awarded H an SPO upon release from prison. The decree further provided that so long as H was incarcerated, his visitation would be exercised by Carolyn. W appealed.

The COA concluded that there was no evidence overcoming the presumption that fit parents act in a child’s best interest as required by TFC§153.433(2) to grant GP access. Further, because Carolyn never intervened in the case, she was technically not a party to the suit and a judgment may not be granted in favor of a non-party. The COA rejected the argument that the decree merely allowed Carolyn to exercise H’s visitation as a designated competent adult because H did not acquire his rights of access by SPO until he was released from prison. The COA reversed the portion of the order granting GP access and rendered judgment denying GP access to Carolyn.