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Gray's Interesting Cases for April 2005

Updated and presented by David Gray
  1. Avila v. Avila, No. 04-04-00196-CV, will not be published - memo opinion (CA, San Antonio).

    After 8 years of marriage, H and/or W filed for divorce. W claimed she was entitled to various funds as a result of economic contributions made by her or the community estate to enhance the value of H's separate property. Although W proved that she had spent a large sum from her separate property, she failed to show that any part thereof was used to pay on the principal of H's sep. real estate debts or such was used to make capital improvements to H's sep. prop. Additionlly W failed to show the FMV of H's property at the time the alleged "improvement" payments were made or the current FMV. The T/C refused to order economic contribution in favor of W as the T/C didn't have the necessary info. to calculate W's claims. W appeals.

    Affirmed. The T/C didn't err in denying W's claims as W wholly failed to carry her burden of proof.

    Comment - Not a significant case except as a remainder that if you plead economic contribution, produce proof of the requisite elements or all is lost.

  2. In the Interest of M.G.M. & V.A.M., No. 09-03-528, not yet published (CA, Beaumont).

    H & W married in Mich. in '96 and lived there until 4/25/03 when W and the 2 kids moved to Montgomery County. 40 days later (6/4/03), W filed for a protective order against H which resulted in the T/C issuing a 20 day ex parte protective order. In response H filed a special appearance, etc. in which H advised the Tex. T/C that he had filed for divorce/custody in Mich. on 5/28/03 (7 days before W's protective order filing). On 6/24/03, with the consent of H's atty, the T/C extended the temp. protective order for another 20 days w/o prejudice to H's jurisdictional or special appearance pleadings. On 7/10/03 due to scheduling conflicts, again the protective order was extended to the next day again with H's atty's approval & still subject to the jurisdictional pleas which would be heard at the same time as W's request for a protective order. The next day, the T/C ruled that H had waived his jurisdiction/special appearance pleas on 6/24/03 when he appeared by counsel even tho the written extension order said it was subject to such pleas and H did not waive such pleas by agreeing to the extension (remember this all occurred in Montgomery County). The T/C signed its final protective order on 7/30/03 after interviewing the kids in chambers. H appeals. Did the T/C err in denying H's special appearance, etc.? Yes - the T/C acted arbitrarily and unreasonably by advising the parties that such pleas were not waived when they agreed to the order extension and then reneged much to H's detriment. Assuming the kids were in danger, what should the T/C have done? Once the T/C found out that there was a divorce pending in Mich. and Mich. was the kids= home state (not disputed), the Tex. T/C should have telephoned the Mich. T/C (which the Montgomery T/C didn't do) and then issue its temp. protective order which remains in effect until the Mich. T/C issues its orders or the applicable time period expires. §152.204.

    Reversed.

    Comment -- The F/C sets out step by step how these things are to be done but I guess you have to read the F/C to know this.

  3. For giggles. In re: Hammond, 155 S.W.3d 222 (Tex. App. El Paso, 2004).

    H & W divorced in 2001 by agreed decree whereby H was the M/C of the parties' child. W, an attorney, agreed (and was ordered) to pay $443/mo. c/s, 50% of uninsured medical plus 50% of the kid's private school expenses. W didn't pay so H filed contempt. W, being an atty, defended herself. The T/C found W guilty of 86 counts of contempt and sentenced her to 60 days per count (5,340 days or 14.5 years) and there to remain until she pays H $13,744 in c/s, medical & school arrearage plus $17,000 in atty fees. W files H/C.

    The CA released W on a $100 bond pending its decision. While the habeas is pending, the case is transferred to another T/C which immediately entered a nunc pro tunc order deleting the 14.5 yr. criminal sentence but retained the coercive sentence. W's complaint on the 14.5 year sentence was that she was denied a jury trial. Without deciding whether the nunc pro tunc order eliminated the criminal sentence, the 14.5 year sentence was voided because when a person is facing a criminal sentence of 6 mos or more (and yes 14.5 years is more than 6 mos. even in El Paso), the record must show that the T/C advised the person of a right to a jury trial and the person affirmatively waived that right. Sproull, 815/250/2. As to the coercive sentence, W didn't prove her poverty defense so back to jail she goes until she pays H $30,774.

    Comment -- How on earth could any Texas T/C sentence someone to 14.5 years in jail on a c/s contempt without advising a person, even a licensed atty, of his/her right to a jury trial? Considering the severity of the sentence, W must have done something spectacularly bad that so pissed off the T/C that it lost its cool. A word to the wise -- don't hire this lady to represent you in a contempt action. As W lives 2 blocks from the N. M. border and only forfeits a $100 bond, do you believe she'll show up for incarceration?