Houston Bar Association - Family Law Section

Gray's Interesting Cases for May 2005

Updated and presented by David Gray

Editorial opinion: Effective 1/1/03 Rule 47.5, TRAP, provides that an appellate court can designate its opinion as a memorandum opinion because it doesn't: (1) resolve an apparent conflict of authority, (2) establish new law, (3) alter/modify an existing rule, (4) apply an existing rule to a novel fact situation likely to recur in future cases or (5) involve legal issues important to Texas jurisprudence. A memo opinion is not published in the Southwester Reporter nor is it generally published in any other case reviewing publications except Westlaw. In the first year of Rule 47.5's existence, I reported on 69 significant cases none of which were memo opinions. Thereafter, through current date, I have reported on 73 additional significant cases, 20 of which are memo opinions (27% of the total). Why this increase? I don't know. Unless you subscribe to and read Westlaw (which most of us don=t), there is no way you can be made aware of the significant case law contained in a memo opinion. It appears to me that the appellate courts are overusing Rule 47.5 and are depriving both bench and bar of their holdings which could and should have a material impact on pending litigation. Either Rule 47.5 should be amended so these significant cases can be made generally known to practicing judges and lawyers or the appellate courts should limit the use of memo opinions to routine dispositions such as no brief or other papers filed, no fees paid or the parties mutually request a dismissal. If an appellate opinion is more than two pages long, it should not be denied publication by calling it a memo opinion.

In the Interest of A. J. J. and S. R. J., No. 2-04-265-CV, will not be publishedB memo opinion (CA, Fort Worth).
H & W divorced in '97 and H was ordered to pay $900/mo. c/s. In '03 H was involuntarily terminated from his job so H filed a motion to reduce c/s. H testified that he couldn't find new employment so he started 2 businesses which had a net operating loss of $34,000 but he did receive workman's comp. of $300/wk plus severance pay. During trial W offered into evidence, H's business bank statements which had been produced per her production request. H objected on a hearsay basis which the T/C overruled. Although there was no specific request to increase c/s, the T/C denied H's motion & increased the c/s to $1,361/mo. H appeals.

Affirmed. H had the obligation to show that there was a material change of circumstances since the last c/s order which was the divorce decree, i.e. what was his income in '97. Altho H proved his income in 2001 was much higher than his current income, he didn't show his '97 income; therefore, he failed to carry his B of P. As to the bank records objection, the records weren't "hearsay because they were admissible as admissions by a party opponent."

Comment - I'll leave to others the dubious evidentiary "party opponent admission" issue but at least it gives you some basis to argue that anything produced in response to a production request is admissible as a party admission. I do have one question -- what if H's businesses were corporations? They aren't a party to this suit so how can they be an opponent party admission unless they are H's alter ego which is a whole different issue.
Guerrero v. Guerra, No. 04-04-00097-CV, not yet published (CA, San Antonio).
H & W divorced in January '84 after 16 years of marital bliss and H was awarded a percentage of W's employee pension rights. H's portion of W's pension was determined by dividing the number of months married by the number of months of W's employment times the amount received by W if, as and when W retires "in accordance with the approved after-acquired property theory concerning division of pension and retirement benefits." 16 years later W retired from SW Bell so she filed a motion to clarify claiming that the value of her pension rights should be calculated as of date of divorce, not as of date of retirement. Apparently no one could testify as to what "after-acquired property theory" meant nor is there any case law defining same so the T/C found the decree to be ambiguous. The T/C further found that W's pension rights were to be divided using the value at her retirement date which included the increases arising from her 16 years of post divorce employment. W appeals.

Affirmed. As the "if, as and when" portion of the decree indicates that everything (including value) is calculated as of date of retirement and the phrase "after-acquired property theory" is meaningless, the T/C was justified in its ambiguity ruling and value as of date of retirement ruling. If the parties meant to divide the value of W's pension rights as of divorce date, the denominator would have been "number of mos. employed at date of divorce" or they could have said that Berry (647/945/2) controls the valuation date.

Comment - WOW! Berry was announced on 3/9/83, 9 months (or less) before the attorneys drafted this decree so I can't fault the attorneys for describing the Supremes' holding as the "after-acquired property theory." How did they know the holding would come to be known as the "Berry formula?" However a lesson to us all. If you are using a holding in a specific case to explain the wording in a legal document, cite the specific case and don't use your made-up name for the case holding. Do you really think W intended H to have a part of her pension value increases based on the 16 years she worked after divorce? NAW!
In the Interest of R.O., No. 03-04-00506-CV, will not be published - memo opinion. (CA, Austin).
During their 4 yr. affair Atty A. allegedly fathered W's child who was born on 11/18/98. Neither party told his/her spouse of the relationship so W's spouse was shown as the child's father on the birth cert. and he treated the child as his own. (Of course he did - he didn't know any better). Three years later after W learned that Atty A's wife was expecting a child, she wrote him demanding $1/wk as c/s and if he sent more, she'd send it back to him. Atty A promptly complied until 2002 when, after W consulted another atty, she wrote another letter demanding $833/mo. which he paid for 7 mos. when he quit paying. Atty A never offered to pay the demanded c/s if W agreed not to file a paternity suit. Atty A and W's own atty advised W of the 4 yr. S of L on paternity when a child has a presumed father (§160.607). In Jan. 2003, W appeared at Atty A's door and advised his wife of the existence of the child and how the child came to be. In Feb. 2003, the child's grandmother filed a paternity suit apparently as the child's next friend in which she claimed that Atty A was estopped from claiming the 4 yr. S of L because of: (1) the confidential relationship between W and Atty A and (2) Atty A had induced W not to sue. Atty A filed a motion for S/J claiming the 4 yr S of L and the grandmother's lack of standing which the T/C granted.

Judgment affirmed. Clearly the child had a presumed father. The CA held:
1. Although §160.607(a) specifically covers a paternity suit filed by a presumed father or the mother of the child, it also covers a suit filed by "another individual" which includes the child and/or the child's grandmother.
2. Estoppel by inducement isn=t applicable here as Atty A did nothing to induce W from timely filing a paternity suit.
3. Estoppel because of a confidential relationship isn't applicable here as having a extra marital affair, standing alone, does not give rise to a confidential relationship especially when W sought legal counsel from another atty.
Comment - I wonder if W and her husband and Atty A and his wife are still married?
In the Interest of J.C.S. and J. G. S., No. 06-04-00085-CV, will not be published - memo opinion (CA, Texarkana).
In the parties' divorce, H & W were designated JMC's of their kids. In Nov. '03, a protective order was issued per §71.004 against H after a finding that he was guilty of family violence. Later both H & W filed motions to modify the divorce decree regarding the kids' custody. Following trial, the T/C refused to remove H as a JMC of the kids. W appealed claiming that the issuance of a protective order against H precluded him from being a JMC per §153.004(b).

Affirmed. Proof of that protective order has been issued against a party, standing alone, is not proof of the elements necessary to precludes the designation of the JMC per §153.004(b). Here H could have threaten W giving rise to the protective order altho such threat does not qualify as physical or sexual abuse under §153.004(b).

Comment - Great case. A lot of judges think that the mere existence of a protective order precludes a JMC designation. If you are in front of one of these judges, here's a helpful case.
In the Interest of J.L., 48 Tex. Sup. Ct. J. 26.
CPS filed suit to terminate the parental rights of W & H in respect to two of W's kids because H had allegedly murdered W's 3rd child. Both H & W were indicted as a result of the 3rd child's death. After a jury trial, the T/C terminated W's parental rights to the oldest of the 2 surviving kids. W filed an appeal. While this appeal was pending, there was a preliminary hearing in W's criminal case in which Dr. X testified that the 3rd child died because of an accident - not the intentional conduct of W or H. To bring this new testimony to the CA's attention in the termination appeal, W requested the CA to remand the case to the T/C for a rehearing. Rather than doing this, the CA took judicial notice of Dr. X's testimony in the criminal case and concluded that the evidence (considering Dr. X's testimony) was insufficient to terminate W's parental rights. CPS appealed.

The Supremes reversed holding, in part, that a ct. can take judicial notice of only those matters that are not subject to reasonable dispute. An expert's testimony invariably concerns matter in dispute which are not capable of accurate resolution from outside, unquestionable sources; therefore, such is not subject to judicial notice.

Comment - Duh.