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Gray's Interesting Cases for May 2004

Updated and presented by David Gray
  1. Barnard v. Barnard, No. 2-03-024-CV, not yet published (CA, Fort Worth).

    W filed for divorce claiming cruelty and insupportability grounds for divorce & H c/c claiming no fault. Apparently the T/C issued a protective order against H after finding family violence. Each side submitted written settlement proposals to the T/C who, without any testimony or other prove up, granted the divorce, divided the property and issued SAPCR orders. H appeals on multiple grounds. Reversed in part & affirmed in part.

    1. The T/C does have juris. as each party in their pleadings alleged proper domicile/residence so they judicially admitted the jurisdictional premise.
    2. The T/C's finding that H was guilty of cruel treatment is o.k. because the T/C issued a protective order against H due to his violence against W thus "The T/C may take judicial notice of its file at any stage of proceedings and it is presumed to have done so with or without a request from a party." A.G. v. Duncan, 929/567/2.
    3. Although inventories were filed, they weren't admitted into evidence; therefore, they can't be considered as evidence for the purpose of dividing the parties' property. Note -- there's authority to the contrary in Vannerson, 857/659/2.

    Comment -- I'm o.k. with a. and c. but I can't swallow b. Just because there's been family violence, it doesn't necessarily lead to a judicial notice that it is "...of a nature that renders further living together insuppotable." If this is so, then whenever there's a protective order issued, any other evidence of cruelty is irrelevant.

  2. Calvin v. Calvin, No. 03-03-00234-CV, will not be published -- memorandum opinion (CA, Austin).

    H & W divorced in March, '02. In Nov. '02 W filed for a protective order in Travis County where the divorce suit had occurred. W had moved to Hays County in May '02 thus W should have filed for the protective order in San Marcos (§82.004). Additionally when W filed she failed to attach a copy of her divorce decree per §82.006. During the hearing a substantial portion of the evidence dealt with H's bad conduct prior to the divorce and such was admitted into evidence over H's res judicata objections. The T/C granted the protective order so H appealed.

    Affirmed. The CA recognized that W's application for protective was defective; however, such defects did not lead to an improper judgment so they were harmless rrors. As to H's pre-divorce conduct, evidence of prior conduct can be introduced to corroborate evidence of similar conduct post-divorce.

  3. In the Matter of the Marriage of Wilson, No. 07-03-0125-CV, will not be published B memorandum opinion. (CA, Amarillo).

    H filed for divorce and custody of the parties' 2 kids was in issue. At W's request, the T/C appoint a shrink to examine everyone and file a written report with the T/C which the shrink did. In response to discovery, H listed the shrink as a fact witness but W did not list him as a fact or expert witness. When W attempted to call the shrink as an expert witness, H objected per Rule 193.6(a) to exclude his testimony as he wasn't listed by W as an expert or fact witness. The T/C allowed the shrink to testify. As H lost custody, he appealed claiming error by allowing the shrink to testify.

    CA affirmed holding that there was good cause for W's failure to timely list the shrink as a witness or W's failure to timely supplement her discovery response listing the shrink didn't unfairly surprise or prejudice H because:

    1. The shrink's report was already in evidence
    2. H had notice of the shrink's opinions months before trial
    3. H had listed the shrink as a witness
    4. The shrink's opinions were not derogatory of H

    Comment -- If all of this is true, then whenever a shrink's report is filed and copies are given to the parties, there's no need to list him/her as a witness. If the non-derogatory nature of the shrink's opinion is an exception to the Rule 193.6(a) exclusion and his report is on file, why isn't his testimony inadmissible as being cumulative? The logic of this opinion escapes me.