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Gray's Interesting Cases for April, 2007

Updated and presented by David Gray
  1. Broesche v. Jackson, et al, No. 14-04-00548-CV, not yet published (CA Houston - 14th).

    H & W divorced in '93 and continued their bitterness thereafter through protracted and vexatious litigation. The current spat involved the interpretation of the parties' divorce decree which was, after several re-sets, finally set for trial on 1/6/03 with a Dec. 27th deadline to exchange jury charges, motions in limine, etc. Unknown to H's attorneys, W's attorneys hired Legislator Joe Nixon on Dec. 23rd for the purpose of obtaining a legislative continuance. Although it had been W's attorneys' practice to fax notices to H's attorneys and W's attorneys had conversations with H's attorneys between Dec. 23rd and Dec. 27th, notice of Nixon's hiring was snail mailed to H's attorneys (and naturally was never mentioned in the Xmas conversations). The end result was that H's attys had to work Xmas eve and Xmas day while W's attys enjoyed the holidays with their families secure in the knowledge that their pet legislator/atty would obtain a legislative continuance of the Jan. 6th trial.

    H's attorneys learned of Nixon's hiring on Dec. 26th. The trial was once again continued. Later H filed for sanctions against W for various abuses including the Xmas debacle. The T/C sanctioned W $162,000 with special emphasis on the Xmas events. W appeals claiming she can't be sanctioned for "engaging in conduct intended to disrupt the proceeding by abusing the rules of fair play and causing delay" as there's no rule preventing her from hiring a legislator just prior to trial and requesting a legislative continuance (Nixon filed no pleadings and made only one court appearance -- probably on the motion for legislative continuance). Additionally W violated no rule by snail mailing notice of Nixon's appearance rather that faxing same.

    CA affirmed. Courts have the inherent power to sanction for abuse of the judicial process even if the conduct at issue does not violate a specific rule or statute.

    Comment - Good law and Kuddos to the T/C and CA for assessing punishment for the disgusting use of the legislative continuance. Too bad legislators can't be sanctioned for the abuse of their elective rights in these circumstances, i.e. the whorish sale of legislative continuances.

  2. In the Interest of C.S. and C.S., No. 09-06-211-CV, will not be published - memo opinion (CA Beaumont).

    H&W divorced in '03 with H&W being the JMCs of their 2 kids and W having the right to determine domicile. In '04 H filed a motion to modify which resulted in the parties remaining JMCs but H had the right to determine the domicile of one child and W the other, i.e. split custody. W appealed on the basis that the T/C failed to find that there were "clear and compelling reasons" to split custody of the kids as required by Coleman (109/108/3).

    CA affirmed. The burden of proof on modification matters is "preponderance of the evidence" not "clear and compelling." See MacDonald (821/458/2). The Beaumont. CA refused to follow the holding in Coleman.

    Comment - Although the CA is technically correct, I'd have a hard time splitting up kids unless there are "clear and compelling reasons." Once again we have 2 different CA's having diametrically opposed opinions which should be resolved by the Supremes but it won't happen.

  3. Monk v. Pomberg, No. 01-05-00429-CV, not yet published (CA, Houston - 1st).

    W and her child left H and moved to Iowa in 2002. Shortly thereafter divorce was filed. The divorce decree contained appropriate SAPCR provisions (the opinion doesn't really spell these out). In '03 H filed a motion to modify the SAPCR orders to which W filed a motion claiming that Texas was a non-convenient forum which the trial court granted. Apparently before the T/C signed any orders, H filed bankruptcy and dismissed his modification suit (again the opinion is vague on this point). W filed a termination action in Iowa but dismissed as such filing violated the bankruptcy stay order. W then requested the bankruptcy ct. to lift the its stay order so she could file a termination action against H.

    Stay lifted. Rather than filing the termination suit, and with no other actions pending, W filed a declaratory judgment action requesting the T/C to declare that Texas was an inconvenient forum to hear any SAPCR actions relating to the parties' child and Iowa was the child's home state. The T/C granted the requested declaratory judgment. H appeals on the basis that the T/C has no jurisdiction to hear the declaratory judgment action as there was no pending SAPCR action involving the child, i.e. W was requesting an impermissible advisory opinion.

    CA affirmed. A declaratory judgment may be used to declare rights under §152.207 F/C (Inconvenient Forum Statute).

    Comment - Not earth shattering but this is a case of first impression so I though I better report it.