Houston Bar Association - Family Law Section

Gray's Interesting Cases for April, 2006

Updated and presented by David Gray

In the Interest of R.E., No. 10-05-00126-CV, will not be published - memo opinion (CA, Waco).
H & W divorced in 2000 with W ordered to pay c/s of $125/mo. Later H filed a motion to increase c/s which was opposed by W thru her new H2 who was an atty. H sent out discovery seeking info on W’s income, expenses, etc. but W never responded so H filed a motion to compel. At the discovery hearing, H2 agreed to fully produce the requested info/documents but he didn’t. W did not show up for trial. H introduced W’s ‘03 income tax return showing a gross income of $95,000. The T/C found W had net resources of $5,000/mo. which should produce $875/mo. c/s using the F/C guidelines. The T/C set c/s at $700/mo. because "H agreed to take a lesser amount." W appeals.

The majority affirmed finding the T/C didn’t abuse its discretion. The dissent said he would reverse because the T/C didn’t have sufficient evidence to find that W had $5,000/mo. net resources as the T/C never used the deducts shown in the tax return to determine W’s net income ($45,000 in business expenses, self employment tax, income tax, etc) which, if used, showed W’s monthly net resources of $2,000/mo. The Waco opinions in Smith (143/206/3) and Roberts (621/832/2) say if a T/C doesn’t have enough info to make a decision on a property division, it’s an abuse of discretion to make a division. Thus a property division so made is reversed until sufficient evidence is produced so a T/C can make an informed division. What’s good for a property division is good for c/s. The dissent then said these cases are binding on the CA under stare decisis and this matter should be reversed so the T/C can force W to produce sufficient evidence to make an accurate c/s calculation.

Comment - Stare decisis. Gee, I thought that concept died years ago as that principle is observed by the appellate courts mostly in its breach. Altho I agree with the dissent, if you use stare decisis, what about all those opinions which hold that if sufficient evidence of net resources is not produced, the CA uses the default minimum wage rule to set c/s?
In the Interest of V. R. N., No. 11-04-00293-CV, not yet published (CA, Eastland).
The parties divorced in ‘78 and H was ordered to pay $200/mo. c/s which he never did. The A.G. filed an enforcement action in ‘89 resulting in a judgment for $25,000 payable via a wage withholding order which was served on H’s various employers at various time between ‘89 and 2002 (during a goodly portion of this time, the A.G. couldn’t locate H’s employer). In 2004 the A.G. sued H to confirm the c/s arrearage (including the balance of the $25,000 owing under the ‘89 judgment). The T/C granted an arrearage judgment of $54,000. H appeals claiming that the ‘89 judgment ($25,000) has become dormant and uncollectible.

The CA refused to consider the Supremes’ opinion which said a c/s judgment never becomes dormant against the A.G. The CA held that as the wage withholding order remained in existence since ‘89, there was a continuous collection effort so the ‘89 judgment never became dormant.

Comment – WOW! You have a wage withholding order issued on an c/s arrearage judgment. The judgment never becomes dormant until the wage withholding order is withdrawn or is otherwise satisfied.
Providian Nat. Bank v. Ebarb, 180 S.W.3d 898 (Tex. App. Bmt, 2005).
The bank sued H & W for the unpaid debts run up by W on a credit card issued to H & W. The joint credit card was issued upon W’s application (H didn’t sign). H & W divorced shortly after the bank filed suit. Although H was aware of the credit card debt and made payments toward the debt, H never asked that credit be extended to him. The bank did not produce any evidence that H ratified this debt or he personally benefitted from, or used, the credit card. Although H’s share of the community property might be subject to the debt, H is not personally liable for the debt.

Comment – A good case if the creditor is coming after your client for a joint credit card debt which was supposed to be paid by the other spouse per the divorce judgment or AID.
Nelson v. Nelson, No. 11-04-00161-CV, not yet published (CA, Eastland).
Prior to marriage, on a hand-shake deal, H bought 5 acres from his parents. At time of marriage he still owed his parents $8,000 on the credit purchase. During marriage the parties repaid $2,000 on the 5 acre deal. Prior to marriage W sold her house and netted $17,500 of which she & H used $16,600 to build a house on H’s 5 acres (all before marriage). Along comes the divorce. The T/C found that the community estate had an eco. contribution claim against H’s 5 acres arising from the $2,000 payment and W’s sep. prop. had a reimbursement claim against H’s 5 acres. H appeals.

Reversed. The community has no eco. contribution claim because §3.402 requires that the pre-marriage debt paid by the community must be secured by a lien. The F/C doesn’t define "lien"; therefore, the CA defines a "lien" to be a writing or act which gives the creditor a superior collateral claim over a unsecured creditor with a later acquired judicial lien. Since this was a hand-shake deal with no writings, no lien, and no eco. contribution. As to the $16,600 reimbursement claim, H says you can’t award reimbursement under the F/C because the $16,600 was used prior to the parties’ marriage. The CA held that §3.408 (Reimbursement Claim) doesn’t specifically limit reimbursement to claims arising during marriage. Timing of the payment isn’t mentioned. The CA doesn’t believe the Leg. intended to preclude a claim arising from a pre-marriage expenditure thus the T/C didn’t abuse its discretion by finding that W was entitled to reimbursement especially since reimbursement is a equitable principle. However, this claim of $16,800 is based on money spent rather than value enhancement per Anderson (684/at 675/2) less benefit received per Zieba (928/782/2) so this claim is remanded for further consideration on the correct reimbursement principles.

Comment – Maybe the Leg. didn’t intend to preclude this pre-marital reimbursement claim but I’m durn sure it didn’t intend to include it in §3.408. Additionally, all the reimbursement measuring cases cited by the CA (Anderson, Zieba, etc.) are for claims arising during marriage, not pre-marital claims. If pre-marital reimbursement is a creature of equity, why not forget about the F/C and award W a $16,800 judgment based on the equitable doctrine of unjust enrichment? The CA’s opinion on pre-marital reimbursement claims measured by post-marital reimbursement cases is just opening a can of worms which is unjustified. Bah, humbug.
De La Garza v. De La Garza, No. 05-04-01453-CV (CA, Dallas).
H & W were divorced in ‘99 with an AID by which H was to pay W alimony of $3,500 to $4,000/mo. from April ‘99 thru Dec. ‘05. Also H was to pay W $30,000 in three $10,000 installments ending in ‘02. H didn’t pay the $30,000 and was late in the alimony payment 67% of the time. In March ‘03 W hired an atty who wrote a demand letter to H. H then paid all installments to date. W filed suit in July ‘03 for breach of K and contempt requesting atty fees, interest on all late payments, and interest paid by her on money she had to borrow to live on because of H’s non or late alimony payments. H filed a motion for S/J which the T/C granted.

CA affirms holding that:
1. The AID doesn’t provide for interest if payments (alimony or otherwise) are late.
2. The finance code used to provide that if no interest is agreed to, the pre-judgment interest is 6% beginning 30 days after the due date; however, that statute has been amended so such pre-judgment interest only applies to a loan agreement (Finance Code §302.002) or wrongful death, personal injury or property damage cases (§304.101). Common law doesn’t allow pre-judgment interest----- No statue or common law allows pre-judgment interest on late or no pay alimony or other non-c/s payments.
3. W’s claim for post judgment interest on the $30,000 paid late can’t stand as she wasn’t awarded a $30,000 judgment even tho the decree said it is “Ordered and Decreed” that W is awarded all right, title and interest in "$30,000 to be paid..." The decree did not award W a judgment — she got a cash award as a part of a property division. No judgment, no post judgment interest.
4. W wasn’t entitled to atty fees as she didn’t prevail in the suit.
The Brass Balls Award. Banargent v. Brent, No. 14-05-005774-CV, will not be published– memo opinion (CA, Houston–14th).
M & W lived together & M was constantly beating on W. The last time he stabbed her repeatedly leaving both legs and one arm paralyzed. While stabbing her he repeatedly screamed he wanted her to die. M was later convicted and sentenced to life imprisonment. Before he was convicted, W applied for, and was granted, a protective order against M. M appeals claiming that there was insufficient evidence to prove a likelihood of future violence as he didn’t know where W was and he hadn’t attempted to contact her since he was jailed without bond.

Affirmed. In re: T.L.S. (170/166/3) says proof of abusive conduct permits an inference of future abusive conduct. M also argued that the evidence was insufficient to prove that a protective order was necessary for W’s safety, welfare and protection since he was in jail.

Comment – Just how desperate must an attorney have to be to accept the representation of M on this appeal? I would have loved to have seen the attorney’s argument before the three justices and their reaction thereto. And we wonder why lawyers are held in such low esteem.