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Gray's Interesting Cases for April 2004

Updated and presented by David Gray

Kudos To The Board. For the past 27 years, the primary source of the cases reported in this rag came from a publication called Opinion Services which contained all the civil appeal opinions issued by our appeal courts on a weekly bases. Unfortunately all things, like yours truly, must come to an end thus in December, Opinion Services closed its doors leaving me without an easily obtainable source of recently released opinions. I spoke with the publisher of the defunked service only to discover that there was no comparable publication except for the internet. On the internet you can view all the opinions issued by the appellate courts within hours of their release but there's no central service. This means you have to go to the website of each of the 14 courts of appeal to see if any of them have released opinions that day. Since these websites only give the names of the cases and not the subject matter, you have to check on each case to see if its family law related. A royal pain in the backside but doable if you are computer savy and have the time to do so. As I continue to use a quill pen and a standup desk and not owning a computer (and not really knowing how to operate one of these infernal machines), the propects of continuing this rag were bleak. After explaining the situation to your board of directors, they furnished me with a computer and printer and taught me how to use it. Interesting Cases now enters (reluctantly) into the computer age with all of its advantages and drawbacks. Your board, Janice Pardue and Sallee Smyth deserve a pat on the back for keeping this rag alive -- at least until I or my computer crashes. Thanks to all. You may now refer to me as Double Click Gray.

  1. In the Interest of Sullivan, No. 07-02-0167-CV, will not be published - memo opinion (CA, Amarillo).

    H & W divorced in '85 with a 2 yr. old child. H was ordered to pay $300/mo c/s which he never did. In '86 W dumped the kid on her mother (GM) who raised the child. In '98 H & W's parental rights were terminated and the child was adopted by GM. In 2001 GM filed to enforce the '85 c/s order against H and, alternatively, sued him for necessaries furnished by her for the child totaling $121,000. The c/s from '85 to '98 totaled $47,000. The T/C held H in contempt in absentia (no sentence) and awarded GM a $47,000 judgment against H. GM appealed claiming that H should have been imprisoned and she should have been awarded atty fees per §157.167 (must award atty fees on c/s enforcement except for good cause shown).

    Affirmed. Not only is imprisonment a discretionary sentence, H couldn't be held in contempt as he did not personally appear at the contempt hearing (§157.006). As to the atty fee issue, since GM wasn't the c/s obligee, she couldn't enforce the c/s order thus §157.167 isn't applicable. Altho the $47,000 judgment corresponds to the am't of unpaid c/s, the award was actually made per §2.501(b) for necessaries furnished thus the possible award of atty fees fell under §106.002 which is purely discretionary with the T/C.

    Comment - Not a really significant case except to highlight how a non-obligee can sue a parent for c/s in the guise of furnished necessaries and the waste of court time (and client's money) to appeal something that never had a chance of succeeding.

  2. Boyd v. Boyd, No. 02-03-026-CV, not yet published (CA, Fort Worth).

    The parties married in '89 and a divorce was filed in 2002. At trial W proceeded pro se. H was making claims of sep. prop. and economic contribution (e/c) which he proved by his own uncontradicted testimony without any supporting documentary evidence. W appeals.

    Reversed. When seeking to establish a sep. prop. claim, the burden of proof is by clear and convincing evidence. The general presumption is that property purchased or debts paid is done with community funds. Without tracing funds using documentary evidence, uncontroverted testimony of an interested witness can't overcome the community presumption. Zagorski (116/309/3) and McElwee (911/182/2).

    Comment - Altho the better practice when you are making a sep. prop. claim is to produce supporting evidence (despite what Ft. Worth says -- it doesn't have to be documents), if you haven't done so, all is not lost. There are several CA opinions that say that the uncontroverted testimony of an interested witness will support a clear and convincing finding. Additionally, the Supremes have said "...uncontroverted testimony...may be taken a true as a matter of law if it is clear, direct and positive and free from contradictions, inconsistences; inaccuracies and circumstances tending to cast suspicion thereon." Abrams v. Jones 35/620/3. If such testimony is taken as true as a matter of law, it has to satisfy the clear and convincing burden. What happens if you have sep. prop. that has no documentary evidence? My dad gave me this $75,000 diamond ring. Dad is dead. He won the ring in a poker game and no one was present when he gave me the ring. Me thinks that the rules on proving sep. prop. by uncontroverted interested witness testimony isn't as clear as Ft. Worth would have you believe.

  3. Loaiza v. Loaiza, No. 02-02-361-CV, not yet published (CA, FT. Worth).

    H was a professional baseball player who signed a 2 year $10 million contract after marriage. Upon divorce, the T/C held that the monies earned during marriage was the parties' community property but the unpaid portion of the contract to be received by H post divorce is H's sep. prop. as he has to perform services post divorce to receive any money under the contract. Per the T/C's temp. orders, each party was awarded temp. spousal support of $70,000/mo. of which H spent everything whereas W saved a part of her meager monthly allowance. In computing the percentage of the property division, the T/C credited each side with the am't of temp. supported ordered even tho H spent his and W saved a bunch of hers. H's cross point on W's appeal was that the T/C erred in this credit because he was awarded a non-existent asset (the expended temp. support) whereas W was awarded something of value (the saved temp. support).

    CA affirmed. H cannot inflate the percentage am't of the property division by only considering the am't of temp. support not spent by W and ignore that H received the same am't but pissed it off.

    Comment - This is a good case to read if you are involved with a professional athlete=s employment contract. The most interesting point is how to treat temp. support not spent when dividing the parties= community assets. Would the result be the same if the T/C's order only gave W $70,000/mo. and H got to spend the balance of his monthly income however he wished? Assume H's income portion is $140,000/mo. When computing the net property division after 12 months, do you credit W with $840,000 and H with $1,680,000? Would it be error to consider only the am't W saved when H spent everything else? Surely you have the answer.

  4. In re Zapata, No. 02-03-308-CV, not yet published (CA, Ft. Worth).

    H was held in contempt for non-payment of c/s and sentenced to 180 days in jail. The "commitment: order said "It is ordered that H is committed to the Tarrant County jail for 180 days." Nothing was said about the Tarrant County Sheriff or any other law enforcement officer taking H into custody and placing him in the calaboose. H filed a H/C which was granted. To have a valid commitment, the order must direct a law officer to take custody of a person. Hernandez, 827/858/2.

    Comment - Such a waste of time when a reasonably written order following long established case law would have put H in jail. Oh, by the way B VIVA ZAPATA!!

  5. In the Interest of C.F. Jr., No. 04-03-00383-CV & 04-03-00384-CV, will not be published-- memo opinion (CA, San Antonio).

    W filed for divorce in '90 under which temp. orders were issued obligating H to pay temp. c/s which he didn't do. This case was DWOPed in '91. In '94 a new divorce case was filed which resulted in a decree whereby H was to pay c/s to W. In 2002 the A.G. (a warm and close friend of mine) filed an enforcement action seeking to have H jailed until he paid the c/s ordered in the '90 temp. order and $350 plus $367 unpaid under the '94 order. At the contempt hearing H introduced an AG generated c/s payment history showing that H had paid all of his c/s obligation under the '94 order and the exhibit attached to the AG's pleading showed that he paid the $350 installment (Stupid is as stupid does). Not only did the T/C find H not guilty of contempt, it sanctioned both W and the AG under Rule 13 for the am't of atty fees H incurred to defend against the AG's meritless contempt charges. Once again evidencing its normal good judgment, the A.G. appeals.

    Affirmed. Rosser (620/802/2), as specifically approved by the Supremes in Little v. Daggett (858/368/2), held that the temp. c/s orders in a DWOPed (or otherwise dismissed case) are not enforceable in a subsequent action notwithstanding the A.G.'s strained construction of the newly enacted §157.005 and §157.261.

    Comment - The only fault I find in this case is that the T/C should have anticipated that the dummy A.G. would appeal thus the sanction should have included an amount equal to the appellate fees plus a punitive am't -- $25,000 sounds about right. Keep kicking these abusive A.G.s, San Antonio, but increase the sanction amounts.

  6. In re Taylor, No. 06-04-00033-CV, not yet published (CA, Texarkana).

    A divorce decree provided under the heading of "Contractual Maintenance" that "...the parties have agreed to contractual maintenance. Accordingly H contracts to pay and is ordered to pay as maintenance the sum of $950/mo. to W..." H didn't pay so W filed for contempt under §8.059. The T/C held H in contempt and sent him to jail whereupon H filed a H/C which was denied. H argued that Dupree (118/911/3) clearly holds that contractual alimony isn't enforceable by contempt.

    The Texarkana CA distinguished Dupree by holding that Dupree:

    1. Involved "alimony" whereas this case involves "contractual maintenance".
    2. This case has decretal language ordering H to pay whereas Dupree had no decretal language.

    Comment - When I wrote my comment on Dupree (November, '03), I asked the question of whether the use of command language in a contractual alimony decree made it contempt enforceable. My answer was NO but the Texarkana CA says YES. I didn't think it would ever come to this but the Dallas CA's opinion is much better reasoned than Texarkana. Once again whatever side of this case you have there's case law to support you until the Supremes speak which is likely to be never. The Texarkana CA lost a whole lot of credibility when they distinguished Dupree because it used the word "alimony" in lieu of "maintenance". Funny they made no mention of the word "contractual" which appeared before "maintenance". Gee whiz -- what a joke.

  7. Life Ins. Co. of No. Am. v. Huffman, No. H-02-4501, not yet published, U.S. Dist. Ct., Southern Dist. Of Tex., Houston, Div.

    H & W divorced in '99. The decree awarded H all life ins. policies on his life except for 25% of the AIM policy which was issued thru H's employment (and which was covered by ERISA). The 25% excluded portion of the A.I.M. policy was not awarded to W. The decree also awarded alimony to W and provided that if H died before fully paying the alimony, the remaining balance would be paid by life ins. on H as later provided. The later portion of the decree obligated H to keep W as the beneficiary of his life ins. until all alimony has been paid with W as beneficiary in the amount of not less than $75,000. After the divorce H changed the bene. on all of his life ins. (including the AIM policy) to his estate. H died in 2002. W and H's estate started fighting over who gets what part of the $187,000 ins. proceeds so the ins. co. interplead all the money into the federal ct. W claims $75,000 and the estate wants the entire $187,000. The estate then asks the federal dist. ct. to construe and clarify the conflicts in the divorce decree regarding the ins. and W requests that the decree be construed and/or clarified by the state ct. that issued the divorce decree.

    The U.S. Dist. Ct. ruled that since there was no state ct. action pending and ERISA (federal law) governs who gets what under an ERISA covered ins. policy, it will decide the questions. Altho life insurance is a welfare plan under ERISA so federal law doesn't pre-empt state law, such welfare plans are governed by federal common law Manning (212 F.3d 866). Fed. common law in these welfare plans consists of ERISA, reported federal case law and analogous state law. In this case, since the parties agreed that the original divorce decree was a consent decree, W's right will be determined by contract law. If the contract is ambiguous, the T/C has to interpret the intent of the parties. The T/C found the decree is ambiguous and that the evidence introduced showed that the 25% exception to the AIM policy and the other references to life insurance (including the $75,000 reference) were only inserted in the decree as a surety should H not fully pay his alimony obligations. As H has fully paid his alimony obligation to W, she gets zero and the estate gets 100% of the ins. proceeds.

    Comment - This is the 1st case I know of where a federal ct. in Texas construed/clarified a Texas divorce decree. Had a state ct. suit been filed prior to the federal interpleader, there might have been a different result. In this case, the estate was very fortunate as it was heard by a federal dist. ct. judge who just happens to be a certified by the Texas State Bar as a family law specialistsB Judge David Hittner who was kind enough to forward this opinion to me.

  8. Granderson v. Ross, No. 14-03-00296-CV, will not be published- memo opinion (CA, Houston- 14th).

    H filed a motion to modify custody, the motion being a 3 page pleading. W was served with citation to which only one page of the modification motion was attached. The serving officer recognized that he was serving an incomplete pleading on W so he told her to go to the Clerk=s office and they would give her a complete copy of the modification motion. W went to the Clerk's office and obtained a complete copy of the motion. W did not appear for trial and did not otherwise make an appearance. Default judgment entered changing custody. Sometime later (must have been more than 30 days after judgment date) W filed a B of R which was denied.

    CA reversed. It is the obligation of the suing party, not the serving officer, to insure that the respondent is properly served. TRCP 106 requires that the Res./Def. be served with citation with "...a copy of the petition attached thereto." Since W was not served with a complete copy of the petition, this is a fatally defective service which can not support a default judgment. Even tho W obtained a complete copy of the modification motion prior to answer date, actual notice will not cure a service not made in strict compliance with TRCP (Wilson, 800/836/2).

  9. Diaz v. Diaz, No. 126 S.W. 3d 705 (CA, Corpus Christi).

    H filed for divorce and advised the T/C that there were minor children born during the marriage but he didn't couple a SAPCR action with his divorce suit. W filed a pro se answer also requesting a divorce, also acknowledging the existence of minor children but she did not request any SAPCR relief either. The case was called for trial but W did not show so the T/C granted a default divorce and designated H as the sole M/C of the kids. W filed a MNT in which she, for the 1st time, advised (and proved) that the kids were under the continuing juris. of a Minn. ct. as a result of a prior proceeding b/t H & W. The T/C DENIES W's MNT so she appeals.

    Appeal dismissed. &sefct;6.406 (b) mandates the joinder of a SAPCR with a divorce if there are minor kids of the marriage sought to be dissolved. Failure to do so renders a divorce judgment void, Daniels (45/278/3). Since H didn't plead for any SAPCR relief, his pleadings are defective and can't support a default judgment B a 2nd reason why the judgment is void. Ignoring all of the foregoing, since there are minor kids involved but no valid SAPCR order which is an absolute requirement, at best the divorce judgment is interlocutory. Since the CA has no juris. to review a void or interlocutory judgment, the appeal is dismissed & the case remains pending in the T/C.

    Comment - Guess what county this case came from? You're right - the world champion for erroneous family law decisions. Hidalgo County. I've tried to remember when a Hidalgo County T/C hasn't been reversed in a family law matter but I've come up with zip. There has to be a reason. Could it be that the county is so improvished that the courts and/or attys can't afford a copy of the Fam. Code? Is there a library in the county where at least one copy of the Code could be stored so the judges/attys could perhaps read it? Where's Andrew Carnegie when you need him? If there is at least one copy of the Code in Hidalgo County which must be shared by the cts and attys, is there a language barrier? If so, can they obtain a translated copy? Are you listening Andy? There has to be a logical answer to these questions.