Houston Bar Association - Family Law Section

Gray's Interesting Cases for April, 2009

Updated and presented by Sallee S. Smyth

In re Zandi, 270 S.W.3d 76 (Tex. 2008)
As originally issued on May 30, 2008 and reported July 2, 2008: Father was held in contempt and sentenced to extended jail time for failure to pay child support in excess of $90,000.00. His sentence was suspended on conditions that (1) he pay a lump sum amount of $25,000 to mother; (2) make monthly payments on the arrearage; (3) make his routine payments of support and (4) appear in court every six months for a “review and status” hearing. Before the first hearing Father asked to modify the conditions because his financial circumstances had changed and further the children had now come to live with him so that he owed no future support. At the hearing it was conceded that Father had paid the initial lump sum amount but Mother asked that the suspension of commitment be revoked because she claimed he had not paid the all of the current support obligations. Father objected to this request because Mother had not filed any type of written motion seeking to revoke his suspended sentence. The trial court revoked the suspension and Father was jailed.

The court of appeals denied Father’s petition for writ of habeas corpus. The Texas Supreme Court granted the writ holding that parties are entitled to specific written notice of the conduct which allegedly violates the orders before they may be confined for these violations. The Mother argued that the underlying order which required Father to appear every six months for a status conference on the conditions imposed was sufficient to put Father on notice but the Supreme Court disagreed, stating that the order provided no notice that allegations would be made or what they would be. Without notice, Father was denied due process and the writ was granted.

Supplemental Opinion on Rehearing issued December 19, 2008: Harris County DRO submitted an amicus brief in this case. HCDRO acknowledged that suspension of commitment cannot be revoked without a second hearing however questioned whether additional service or notice is required. In a supplemental opinion the Supreme Court reaffirmed their position that the respondent’s suspension cannot be revoked at a status or compliance hearing unless prior notice has been given that revocation will be sought and on what grounds so that respondent has an opportunity to prepare a defense to specific complaints.

I offer the following language for inclusion in orders which suspend commitment, although until tested, I cannot guarantee that this would be considered sufficient notice.

IT IS ORDERED that _________ shall appear before this court on _________, 20___ at ____ a.m. for a hearing to determine if Respondent is in compliance with the terms of this order. Respondent's commitment under this order has been suspended provided that Respondent complies with the terms of this order as specified above. Respondent is hereby notified that if (he/she) fails to comply with the terms of this order that Petitioner will seek revocation of the suspension as to the following obligations: [INCLUDE SPECIFIC POTENTIAL COMPLAINTS HERE] Respondent is hereby notified that at the conclusion of the scheduled hearing, Respondent may be committed to jail to serve any sentence imposed under this order if the court determines that compliance is lacking or insufficient. Respondent will receive no further notice of this scheduled hearing and if Respondent fails to appear at the scheduled hearing a warrant for Respondent’s arrest may issue. If Respondent fails to comply with the terms of this order, Respondent should be prepared to offer evidence at the scheduled hearing in support of any and all defenses which Respondent will claim excuse (his/her) compliance or performance.
In the Interest of K.A.C.O. & J.C.C.O., Children, 2009 Tex. App. LEXIS 1445 (Tex. App. – Houston [14th Dist.] March 3, 2009) (Cause No. 14-07-311-CV) (mem. opinion)
M and F were named JMC of their two children with M as primary. In 2005 M filed a motion to modify seeking orders to protect the children based on her concerns that F (a dual citizen of US and France) would abuct them. The case was set for trial. M amended her pleadings and sought SMC. Trial was reset to 11/13/06 at 10 am. F paid a jury fee more than 30 days prior to trial and amended his pleadings and asked to be named primary JMC. M filed a motion to strike the jury demand and F filed a motion for continuance due to a death in his attorneys family. AJ granted motion to strike and continuance and case was reset to 12/11/06. F appealed from the AJ’s ruling on the motion to strike jury demand and the presiding judge placed the case back on the jury docket. M filed a motion to strike F’s amended counter petition seeking custody. A pre-trial conference was scheduled for 12/5/06 at 8:00 a.m. Due to car trouble F’s attorney did not appear for the pre-trial but called and left messages on the court coordinator’s voice mail. The court was not aware of these messages before conducting the pre-trial. At M’s request the court struck F’s pleading and struck his jury setting. The court noted on the docket sheet that trial would go forward on 12/11/06 at 8:00 am.

F’s atty finally arrived in court but the hearing had concluded. She had the coordinator play her phone messages and advise the judge of her presence but to no avail. She ordered a transcript of the hearing and left. On 12/11/06, the day of trial, F arrived at the courtroom with one of his witnesses at 8:40 am and the trial was already in progress. By the time his attorney arrived the trial had concluded, the judge had ruled and M and her lawyers had left the courtroom. Two days later F’s attorney filed a motion to vacate the default ruling and to reinstate the case back on the trial court’s docket. The court denied the motion after a hearing and signed a final order that found a risk of international abduction, allowed M to retain the children’s passports, prohibited international travel, provided for an SPO, awarded M attorneys fees and ordered F to deposit appellate fees in trust. F appealed.

The COA determined that F did not received proper notice that trial on 12/11/06 would begin at 8:00 am and that the court’s docket sheet entry was ineffective as notice because of its inherent unreliability. Under the Craddock standards (which the COA disapproves of using in child related cases but begrudgingly followed) F’s uncontroverted affidavit offered in support of his motion to set aside default established that he did not receive proper notice of trial and thus he was excused from proving the remaining Craddock elements. Further, the COA agreed that the court’s decision to strike F’s pleadings and jury demand at the pre-trial conference were more akin to a sanction and that as sanctions they were an abuse of discretion because (1) F had no notice he would be subject to sanctions for failure to appear at the pre-trial and (2) nothing indicated that his attorneys absence was intentional or attributable to F. The COA reversed the final order and remanded the case back to the trial court with instructions for it to be reinstated on the trial court’s jury docket.

Comment: After the appeal was perfected, F filed a motion to recuse the trial court which was granted so on remand the case will be tried to a jury in a different court.
In the Interest of V.B., K.B., and T.B., Children, 2009 Tex. App. LEXIS 1803 (Tex. App. – San Antonio March 18, 2009) (Cause No. 04-08-507-CV)
In 2004, Tina traveled to Russia and adopted three children. In April 2007 Tina married David who she had known for ten years. David claimed that he moved in with Tina when they were married in April. Tina claimed that he did not move in until August, instead, staying at his place during the week because it was closer to his work. In January 2008 David moved out. Two months later he filed a SAPCR seeking custody of the children. Tina filed a plea to the jurisdiction challenging David’s standing to bring suit. After a hearing, where the court heard conflicting evidence as to whether or not David had actual care and control of the children for a period of six months to achieve standing under TFC 102.003(a)(9), the trial court found David lacked standing and granted Tina’s plea to the jurisdiction and dismissed David’s suit. David appealed.

Citing summary judgment standards for reviewing the evidence in a light most favorable to the non-movant, the COA held that when the evidence presents disputed jurisdictional facts, a trial court may not grant a plea to the jurisdiction as a matter of law but instead “the issue must be resolved by the trier of fact.” Because there was a question of how long David had care, custody and control, the COA ruled that the trial court erred in granting the plea and reversed and remanded the decision back to the trial court for further proceedings.

Comment: What this opinion seems to suggest (although it never comes out and says it) is that disputed jurisdictional facts in a SAPCR could be submitted to a jury if in fact a jury had been timely demanded. I have always thought the trial court could simply decide the disputed facts at the time of the hearing on the plea and make the ruling. This case seems to suggest that a decision on the plea in the early stage of the case is not appropriate, but instead the factual issue surrounding jurisdiction must be decided at the same time as the remaining factual disputes. In a family law matter, this would not happen until final trial. Assuming the “trier of fact” was a jury, then under this case, a question regarding whether David had met the statutory time limits would then be submitted. I’m not sure this is the most efficient or economical way for this issue to be addressed. After all, if the entire case had to be prepared for final trial only for the first question on jurisdictional facts to be resolved in favor of the movant on the jurisdictional challenge, the proper procedural result at that time would be dismissal due to lack of standing and all the time, emotion and money spent to take the case to trial would have been a complete waste. This opinion leaves many unanswered questions for me.
Herzfeld v. Herzfeld, 2009 Tex. App. LEXIS 1851 (Tex. App. – Dallas March 18, 2009) (Cause No. 05-06-332-CV)
H and W were divorced in 1991. H was ordered to pay $500 support until both children reached 18 and graduated high school. The decree granted W exclusive use of the marital residence until child support terminated. At that time the decree ordered the house sold at a mutually agreed price and if no agreement authorized the appointment of a receiver to sell. W was obligated to pay for and maintain the property during her use and sales proceeds were to be divided 75% to W and 25% to H. The youngest child graduated in 1997 and W continued to live in the house. Neither party took any action to enforce the decree until 2004 when H filed a motion to enforce. During the enforcement proceedings W offered to buy H’s interest in the house and filed a motion asking that the receiver be allowed to sell the house to W. The court granted W’s motion and the receiver produced a sales contract which H and W signed. The contract set a closing date. W appeared at closing with the funds to purchase the residence but the title agent refused to close. H and receiver did not appear at closing. W filed a motion for specific performance on the contract. The trial court ruled that the residence was community property and as such, the contract required both H and W to be listed as sellers which it did not. As a result the trial court declared the contract void as a matter of law. W appealed and argued that because H signed the contract, under the statute of frauds the contract was valid and enforceable as an agreement in writing signed by a party to be charged with a promise or agreement.

The COA held that H’s signature merely proved his agreement but W still had to establish her right to specific performance. On appeal, W did not challenge trial court’s conclusion that the contract was void and because specific performance is an equitable remedy, she failed to demonstrate how the trial court abused its discretion in failing to grant her specific performance. Judgment affirmed. (Additional issues addressing H’s child support arrearage were also affirmed).
In the Interest of S.D.S.-C., A Child, 2009 Tex. App. LEXIS 1828 (Tex. App. – San Antonio March 18, 2009) (Cause No. 04-08-593-CV) (mem. opinion)
In June 2003, C and S filed for a same sex adoption of S’s biological child. In December 2003 the trial court signed an order of adoption. In January 2008 C filed a petition to declare the adoption order void based on her claim that she and S lacked standing to seek adoption in 2003 because the father’s parental rights had never been terminated. As such, C claimed that the adoption order was void for lack of subject matter jurisdiction. The trial court denied C’s request determining that C lacked standing under TFC 161.012(a) which requires that attacks on adoption orders must be brought within six months. Following other appellate decisions (including 214 S.W.3d 741; 249 S.W.3d 1; 192 S.W.3d 823)

the COA held that adoption orders may not be attacked on ANY basis, including a claim that the order is void, more than six months after the adoption order has been signed. The trial court’s decision was affirmed.

Comment: Since a void order (which would include an order signed by a court without subject matter jurisdiction) can be collaterally attacked at any time, could the adoption order be challenged in a proceeding brought by the father? Where does this ruling leave the father? Is he still a legal parent since his rights have not been terminated?
Stoufflet v. Stoufflet, 2009 Tex. App. LEXIS 1899 (Tex. App. – Austin March 20, 2009) (Cause No. 03-08-003-CV) (mem. opinion)
H and W were married for 17 years and had 3 children who were 15 (girl), 12 (boy) and 9 (boy) at the time of divorce. H and W separated in 2006. W claimed that H abused the children physically, emotionally and sexually. H argued that W suffered from paranoid delusions which caused her to fabricate false allegations and plant false memories of abuse in the children. W’s claims were based in large part on sadomasochistic pornography found on H’s computers and allegedly observed by the 12 year old son. H admitted to viewing the pornography but denied intentionally or negligently allowing access to this by the son. W reported to CPS who ruled out abuse by H but found him negligent in supervision of the son. CPS found emotional abuse by W in coaching the children to claim abuse by H against them. Each child and both parents underwent psychological and psychiatric testing. Each child saw separate psychotherapists but shared a single psychiatrist who monitored medication. All parties were seen by a forensic psychologist, a psychologist specializing in custody evaluations and a reunification specialist. Evidence at trial was primarily from the experts, the majority of which concluded there had been no abuse by H. All experts agreed that W’s paranoid delusions would inhibit her ability to reunify the children with H. The children’s ad litem recommended that the youngest boy begin reunification with H immediately and that the other 2 children be placed in foster care to reunify with H at a later date. The court appointed H and W as JMC and named W as primary parent of the older children and H as the primary parent of the youngest child and imposed a geographic restriction on all. H and the younger child were ordered to participate in a reunification program and W’s visitation was suspended until the program was completed. W appealed.

The COA determined that the trial court’s decision to split custody of the children was in their best interest based on the totality of the expert testimony offered at trial. Because the trial court was the sole judge of the witnesses credibility, the COA found no abuse of discretion in the court’s decision to name H a JMC even in the face of abuse allegations. The geographic restriction was upheld as it was put in place to facilitate visitation so that all three kids could be together at certain periods. W asserted various other minor points all of which were overruled and judgment was affirmed.
In the Matter of the Marriage of Fillnigim, 2009 Tex. App. LEXIS 2014 (Tex. App. – Amarillo March 24, 2009) (Cause No. 07-08-144-CV) (mem. opinion)
H and W were married in 1970. During marriage H’s parents deeded various mineral interests to him alone but H and W jointly executed various oil and gas leases pertaining to these properties. In 1981 W filed for divorce. H did not participate in the proceedings. A decree was signed which specifically awarded property to each party according to attached schedules and the decree contained a residual clause awarding each spouse a “½ interest in all other property or assets not otherwise disposed of or divided herein.” The decree did not specifically award the mineral interests. In 2006 H filed a proceeding to clarify the decree under TFC Chapter 9 as it affected these interests and a suit for declaratory judgment seeking to have the interests declared as his separate property. The cases were consolidated and tried. Dan claimed that the mineral interests had been gifted to him and were therefore separate property and as a matter of law could not have been included in the residual clause because the court has no power to divide his separate property. The trial court agreed and granted judgment for H. W appealed.

The COA determined that the residual clause was broad enough to encompass a division of the mineral interests and since these assets had already been divided, an order under Chapter 9 could not substantively modify that division and re-award these assets completely to H. However H argued that because the interests were his s/p, the trial court had no “jurisdiction” to divide them originally and any such order was void. The COA determined that the prohibition against divestiture of s/p is not jurisdictional but instead is merely a mistake that would make an order voidable and not void. The proper way to attack such an award was by direct appeal and H was not permitted to collaterally attack the award at a later date. The trial court’s judgment was reversed and a modified judgment confirming the equal award of the mineral interests to H and W was rendered.
Phillips v. Phillips, 2009 Tex. App. LEXIS 1997 (Tex. App. – El Paso March 26, 2009) (Cause No. 08-06-171-CV)
H and W married in 2001. Each had significant separate property. H filed for divorce in 2003. W countered with claims for fraud, EC, and reimbursement. She filed a tort claim for assault. She also joined H’s law firm as a party and alleged alter ego. W paid a jury fee and part of the issues were submitted to the jury while others were tried to the court. The jury found in favor of W on a constructive fraud claim and determined that her share of the loss was $404,407. The jury found against W on her suit for assault and determined that W should pay all of H’s attorneys fees. In the bench trial portion the court found that H was entitled to various offsets against the constructive fraud finding and ultimately awarded W a money judgment for approximately $100,000 as part of the division of the estate. The court ordered the parties home sold and ordered that each party would be paid $125K from the proceeds to reimburse separate property contributions, W would be paid her $100K judgment from the proceeds and any proceeds left would be divided equally. W appealed.

W challenged the finding of offsets because she contended that H failed to submit this issue to the jury, the trial court was precluded from considering them or charging them against her constructive fraud claim and H had judicially admitted he did not seek reimbursement. In examining the record the COA was mindful that H did not specifically seek reimbursement of monies expended for W’s benefit or the benefit of her separate estate. He specifically did not want this money back. Instead, H only sought to have these funds “offset” against any amount he might owe W if she prevailed on her constructive fraud claim. The COA construed the relevant jury question as one which addressed H’s “offsets” against W’s reimbursement and since the jury answered zero, the jury determined that neither party was entitled to offsets against reimbursement claims. During the bench portion of the trial H offered the evidence of offset again and W did not object. The COA determined that because “offset” is not an elemental of a reimbursement claim, the jury’s prior finding did not preclude H from seeking an “offset” as against other claims and the trial court did not err in crediting H for these payments against the fraud amount as found by the jury. W also complained about the award of H’s fees against her. The COA found sufficient evidence to support the fee award and further found no abuse of discretion because the evidence suggested that W’s demand for a jury significantly increased attorney’s fees and in the overall division the court was entitled to consider this. The COA affirmed that a jury finding on the amount of fees is binding on the trial court but any finding on how they should be paid is not. W also complained about the court’s failure to award her pre-judgment interest on the fraud judgment. The COA held that because the fraud award was part of the division of property as dictated by Schlueter, (975 S.W.2d 584) and not an award for an independent tort, W was not entitled to pre-judgment interest. Other minor issues asserted by wife relating to characterization and overall division of property were overruled and the judgment was affirmed.
In re Phillips, 2009 Tex. App. LEXIS 1994 (Tex. App. – El Paso March 26, 2009) (Cause No. 08-06-298-CV) (orig. proceeding).
This is a mandamus action which originated from certain post-judgment orders which issued after the parties divorce and while W’s appeal from the divorce was pending. The appellate decision from the divorce proceedings is reported immediately above.

As part of the division of property the court ordered the parties’ house sold and net proceeds divided. The court appointed a receiver to handle the process. Each party was to receive $125K as reimbursement of s/p contributions to the purchase and then W was to be paid the amount of a net judgment awarded to her in connection with a constructive fraud claim. W filed a MNT after the decree contesting H’s s/p interest in the residence and she filed a lis pendens related to the collection of her judgment against the sales proceeds. The receiver obtained a contract on the house and closing was set. Receiver filed a motion to approve the sale which could not go forward unless the lis pendens was released. W was unwilling to release because she did not want to accept the benefits of a judgment she was also appealing. The parties agreed to deposit the sales proceeds into the trust account of W’s attorney and stipulated that the lis pendens could be removed and that W would receive her $125K separate property amount. Several months later H moved to obtain his $125K award. In the alternative he tendered payment of the fraud judgment but W refused to accept because she did not want to prejudice her appeal. W challenged the court’s authority to grant H relief because she argued that TFC 9.007(c) abated enforcement of the underlying decree while an appeal was pending. The trial court granted H’s motion and ordered W’s attorney to release $125K to H. W filed for a writ of mandamus.

The COA concluded that the post-judgment order for disbursement of $125K was not “an order assisting in the implementation of the property division” as prohibited by TFC 9.007(c) but instead it was merely an order directed to a ministerial officer (the lawyer managing the trust account) to enforce the judgment. By this distinction the COA determines that the court’s authority to “enforce” its judgment remains in tact during appeal in the absence of a supersedeas bond or other action suspending enforcement (i.e. temporary orders pending appeal under the Family Code). The only actions which are abated during the appeal are those which seek further orders implementing the division or orders which seek to clarify the division. Mandamus denied.
Woodward v. The Office of the Attorney General of Texas, 2009 Tex. App. LEXIS 2090 (Tex. App. – Houston [1st Dist.] March 26, 2009) (Cause No. 01-07-954-CV)
In 2006 the OAG filed a suit to establish paternity against F. A docket entry in May 2007 reflected that a default had been taken but the filed did not contain a final judgment. In an August 2007 hearing the AJ established parentage, appointed F as PC and M as MC, set visitation and ordered child support/medical support. A day after the ruling the F filed a notice of appeal from the AJ’s ruling, specifying his complaints with the ruling. M filed a motion to deny relief claiming that the notice failed to sufficiently specify which rulings were complained of. The trial court denied a de novo hearing and signed a final order. F appealed.

H claimed the court lost plenary power after the initial default in May but because no order was ever signed the COA held that the trial court’s jurisdiction continued unabated. However, the COA held that F was entitled to a de novo hearing because his notice of appeal was sufficient to apprise the court of his objections. Reversed and remanded for de novo hearing.
In the Interest of C.G., A Minor Child, 2009 Tex. App. LEXIS 2037 (Tex. App. – Corpus Christi March 26, 2009) (Cause No. 13-07-697-CV) (mem. opinion)
In 1993 the OAG filed a suit to establish parentage and attempted to serve F with citation. After several failed attempts the OAG obtained a Rule 106 order permitting service upon any person over the age of 16 at a specified address. The constable taped the citation to the door when the occupants refused to answer. When F defaulted the court entered a final judgment adjudicating F as the father. This order was signed in October 1993. In February 2006 F filed an original petition for bill of review seeking to invalidate the prior order. OAG answered and asserted the affirmative defense of laches. At the initial hearing F testified that he first became aware of the order in 2006 when his bank account was garnished. M testified that she advised F of the order within a year or two after it was signed and that he never denied being the father of the child. In fact, M testified that F would occasionally see the child and paid some support. The trial court denied the bill of review and F appealed. On appeal, F argued that his attack on the 1993 order was both a direct attack and a collateral attack and he conceded that his direct attack was barred by the 4 year statute of limitations. He argued however that the underlying order was void for lack of personal jurisdiction over him due to improper service and that since there is no statute of limitations on a collateral attack against a void order he was entitled to proceed.

The COA held that the absence of notice on a Texas resident to a Texas suit does not make an order void, but only voidable and a lack of proper notice is not grounds for a collateral attack. Judgment of trial court affirmed.
Wright v. Wright, 2009 Tex. App. LEXIS 2055 (Tex. App. – Eastland March 26, 2009) (Cause No. 11-07-169-CV)
W filed for divorce in March 2006. On the date of filing, H cleared out all of the parties bank accounts and transferred title to 2 motorcycles to the parties sons’ all without notice to the W. Three days later H transferred 49% of a community owned corporation to an employee without consideration and altered the bylaws of the corporation to remove W as a director. As a result, W joined the employee into the divorce and asserted claims of fraud against both H and 3rd party seeking to set aside the transfer. Thereafter, the parties entered into a MSA which settled all matters except the W’s “fraud on the community” claims which were reserved for trial. In addition, the parties’ negotiated how an award on the fraud claim would be handled in the event W was successful on the claim. At trial, H argued that W reserved only an actual fraud claim but W asserted that her fraud on the community issue included both actual and constructive fraud. The trial court agreed with W. The trial court postponed the trial for two short weeks to allow the parties to get their pleadings in order. H paid a jury fee which was disallowed as untimely. After a bench trial the court the court found that H had committed both actual and constructive fraud and fraud on the community and awarded W a judgment for over $300K. The trial court ordered the judgment secured by a security agreement, an escrow agreement and UCC filings and ordered H to execute promissory notes as well. W conceded on appeal that some of these orders exceeded the relief agreed upon by the parties in the MSA. On appeal, H argued that W’s request for relief in her second amended petition exceeded that authorized by the MSA and was therefore a breach of the MSA which allowed H to rescission.

The COA determined that while W’s pleading did constitute a breach of the MSA, it was not a material breach because her pleading specifically conceded that the MSA should control if it was determined that her pleadings were in conflict. The COA found the evidence sufficient to support the findings of fraud as to H and the 3rd party. Finally H asserted that the judgment awarded to W was an improper measure of recovery under the terms of the MSA. The COA determined that the court properly valued the shares of the corporation from the perspective of the community estate and not from the perspective of the 3rd party to whom they were transferred and upheld the $300K judgment. After divorce W sought temporary orders pending appeal including spousal support and appellate fees. The trial court awarded $4,000/month in spousal support without credit to H and awarded $60,000 in appellate fees without condition. H complained that the award of support without a credit resulted in W receiving more than she was entitled to receive under the MSA. The COA agreed and determined that these payments should be credited against the $300K judgment awarded to W. Further, H complained that appellate fees must be conditioned on an unsuccessful appeal and further were improper because the MSA provided that each party was to pay their own fees. The COA determined that W was entitled to recover fees for her efforts to enforce the MSA and appellate fees for any appeal related to that if H lost. However the COA found insufficient evidence segregating the fees between the various issues addressed by the trial court. The COA reversed the award of attorneys fees and remanded the matter back to the trial court to apportion the fees in accordance with the parties’ respective successes on appeal. The $300K judgment was affirmed.