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Gray's Interesting Cases for May, 2009

Updated and presented by Sallee S. Smyth
  1. Mireles v. Mireles, 2009 Tex. App. LEXIS 2225 (Tex. App. – Houston [1st Dist.] April 2, 2009) (Cause No. 01-08-499-CV) (mem. opinion)

    H and W were divorced in April 2005. In 2007 W filed a petition entitled “Original Petition for Bill of Review” seeking to set aside and vacate the decree based on W’s claim that H had been born a female. H argued that the decree could not be set aside in the absence of extrinsic fraud as required for a bill of review. W argued that the marriage was void as a same sex marriage, alternatively that the court lacked subject matter jurisdiction over the divorce proceedings and finally alleging fraud. The trial court declared the marriage void and signed an order setting aside and vacating the 2005 decree. H appealed. H argued that the petition could not be granted in the absence of pleadings and proof which established the elements of a bill of review.

    The court of appeals noted that a void judgment can be attacked either by bill of review or collaterally and that collateral attacks may be asserted with the “public interest s directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas. Nothing that extrinsic evidence may not generally be used in a collateral attack, the court of appeals noted an exception when the court had no possible power to decide the case. Because both parties conceded that they were females, the court of appeals affirmed the trial court’s decision.

  2. In the Interest of J.A.J., 2009 Tex. App. LEXIS 2430 (Tex. App. – Beaumont, April 2, 2009) (Cause No. 09-07-497-CV)

    M and D are the parents of one child born in 1996. In 2001 D was adjudicated as the father and ordered to pay child support of $475/mo based on annual earnings of approximately $31K. This order also appointed the parties JMC. In 2004 the AG filed a suit to modify support. M joined in this action. D sought primary custody. After a jury trial in 2007 the court entered an order that gave D primary custody and ordered M to pay child support. A separate trial took place on the AG’s request for retroactive child support back to 2004. A state employee testified as to D’s average monthly earnings for the preceding 18 months. There was no testimony indicating that D had ever failed to comply with the prior child support orders. The trial court ordered a lump sum retroactive child support payment of $23,200. D appealed.

    The COA reviewed the evidence and determined that an award of retroactive child support must be based on evidence of the obligor’s earnings at all relevant times. In this case, there was no evidence of D’s income during 2004 and 2005 and the trial court’s calculation was based on nothing more than speculation. As a result, the COA found the decision to award retroactive support to be arbitrary and reversed the order, remanding it back to the trial court to determine 1) if it should be awarded and if so 2) in what amount.

  3. In the Interest of T.B., 2009 Tex. App. LEXIS 2229 (Tex. App. – San Antonio, April 3, 2009) (Cause No. 04-07-838-CV) (mem. opinion)

    D filed an original SAPCR in 2004. The parties reached an agreement in mediation. As part of the MSA, the parties agreed to try to resolve any disputes regarding interpretation or performance of the MSA by phone conference with the mediator and agreed to appear in court on the first available date to have the court pronounce judgment on the agreement. No judgment was entered. Seven months later M filed a counter petition and D responded with a motion to abate. The court found the MSA to be valid and enforceable and ordered the parties to mediation. Despite this order the parties verbally agreed to arbitration. There were no written guidelines provided to the arbitrator. At the conclusion of the proceeding the arbitrator issued a written award on conservatorship and division of certain personal property. Neither party signed this document and no order was entered for a period of more than two years. In 2007 M asked the trial court to enter judgment on the arbitrator’s award which the court did. D filed a post-judgment motion asserting that the arbitrator’s award exceeded the scope of arbitration and further that the court’s order conflicted with the parties’ MSA previously approved by the court. This motion was overruled by operation of law and D then appealed. On appeal, D argued that the arbitration, handled informally, was merely a mediation and that because the parties did not sign the “award” it was an unenforceable MSA or Rule 11 agreement.

    The COA found that because D failed to object to the “arbitration award” for over two years, D had waived his right to complain. The COA also determined that to the extent the arbitration award settled disputes regarding the prior MSA, the award controlled, however the COA agreed that the court erred in characterizing property as “community” property since the parties were never married. The COA also determined that the court order was not in strict compliance with the arbitration award as to several others items. Because the trial court order was inconsistent with the arbitration award and the trial court had made no finding pursuant to TFC§153.0071(b) that the orders were not in the child’s best interest, the COA determined the judgment to be unenforceable, set it aside and remanded the matter back to the trial court.

  4. In the Interest of R.C.T., L.J.T. and C.L.T., 2009 Tex. App. LEXIS 2257 (Tex. App. – Houston [14th Dist.] April 7, 2009) (Cause No. 14-07-642-CV)

    H and W divorced in 2000. W was appointed SMC and H was ordered to pay child support. In 2004 the AG filed a suit to increase child support. In 2006 the trail court signed an agreed order which established retroactive support of $9,000 which the parties agreed H could repay at the rate of $150 per month. The AG approved the order as to form but not substance. Then the AG filed a child support lien and notified the IRS of the past due support. The treasury department notified H that a refund of $3,800 had been intercepted and paid to the AG. H filed a motion to vacate the lien and collect his refund from the AG. The trial court vacated the lien, finding that the retroactive support was not “arrearages” since H was permitted to pay this off in installments and he was in compliance with the agreed payoff schedule. The court also ordered the AG to reimburse the IRS refund to H. The AG appealed.

    The COA found that the plain meaning of the child support lien statutes authorized a lien for support which was “due and owing” and that despite the payoff schedule, the agreed retroactive amount met the common definition of the words “due and owing.” The COA further held that the payoff schedule does not alter the statutory meaning and that the debt the subject of a child support lien does not have to be an “arrearage.” Despite upholding the AG’s lien, the COA did determine that the language of the federal statute authorizing interception of tax refunds refers to “delinquencies” and that in the absence of a finding that a court order has been violated (of which there was none here), the AG is not entitled to the refund money. This decision was based on similar holdings from North Carolina and Pennsylvania. The COA modified the underlying order to remove the terms which vacated the lien but affirmed the orders obligating the AG to pay back the tax retund.

  5. Sill v. White, 2009 Tex. App. LEXIS 2548 (Tex. App. – San Antonio, April 15, 2009) (Cause No. 04-08-324-CV) (mem. opinion)

    H and W were divorced in 2001 by a judgment issued in the state of Illinois. The decree obligated H to pay for various items as part of the property division in exchange for the award of various real estate and a business to H. H agreed that if he failed to pay any of the specified debts, he would forfeit his interest in two pieces of property in Texas which would be awarded to W free and clear. Neither party appealed the Illinois judgment. Seven months later, W filed an enforcement action in Illinois seeking to enforce the security agreement, claiming that H had failed to pay certain debts. The Illinois court found that H had violated the decree but refused to enforce the security provision finding that this resulted in a penalty unrelated to the damages incurred. Instead the Illinois court ordered H to do certain acts to purge his contempt, which H did. While this action was pending, H filed a suit to set aside the settlement agreement under an Illinois statute that permitted such a filing within 2 years after entry if found to be unconscionable. The court denied H’s request and he appealed but this Illinois trail court decision was affirmed. In 2007 W filed suit in Texas seeking again to enforce the decree based on different violations. After a hearing the trial court ordered H to deed the real estate to W provided as security in the Illinois decree. On appeal H argued that W was stopped from seeking enforcement of the security interest under a theory of res judicata. H argued that since W had sought this relief in the prior Illinois action and this had been denied, she was unable to seek enforcement again.

    The COA determined that since W was alleging new violations, she was free to seek enforcement of the security provision as a remedy for these violations. Further the COA determined that the prior Illinois judgment refusing to enforce the security provision was not a final adjudication as to its applicability, only a ruling that it was not appropriate relief under the pending circumstances. The trial court judgment was affirmed.

  6. In the Matter of the Marriage of Born, 2009 Tex. App. LEXIS 2569 (Tex. App. – Texarkana, April 16, 2009) (Cause No. 06-08-066-CV) (mem. opinion)

    H and W were married six years when they petitioned for divorce. Trial focused on H’s claims of separate property as to three bank accounts. H testified as to the source of these funds, some deposits and withdrawals made over the years and offered some bank statements on each account. H’s evidence did not amount to a full accounting as to each account. H admitted that community interest on these accounts had been commingled with the separate funds. The court found all three accounts to be community property and divided them. H was also ordered to pay his own federal income tax return based on his admission that he had not filed tax returns for several years. H appealed.

    The COA affirmed finding that general and conclusory evidence is not sufficient to clearly trace separate property in commingled bank accounts, finding that gaps in the bank records only permitted the trial court to speculate as to what amounts might be considered separate or community and that this was insufficient. Finding no other abuse of discretion in the division, the judgment was affirmed.

  7. Garcia v. Geistweidt, 2009 Tex. App. LEXIS 2722 (Tex. App. – San Antonio April 22, 2009) (Cause No. 04-08-251-CV)

    H and W divorced in 2004. The decree provided that H would pay no child support so long as he paid the mortgage on the residence occupied by W and child as provided for in an AID attached to the decree. In 2005 W filed a motion for contempt claiming that H had failed to pay and this motion was granted. Then W filed a motion to modify asking to change the place of payment from the mortgage company to her directly. This motion was granted and the court ordered wage withholding but no separate order for withholding was signed. Instead, a Bexar County support form was signed. H filed a bill of review as to this ruling but it was denied and H appealed. The COA affirmed. H was then held in contempt a second time for non-payment of support. In 2007 H sued W for breach of the AID which permitted him to pay the mortgage in lieu of child support. H also included tort claims against the W and a claim of fraud against W’s attorney. This fraud claim was based on his allegation that the attorney filled out the Bexar County support form, checking the “no” box as to whether withholding had been ordered and that her error in checking this box caused his employer to fail to withhold for child support which then caused his contempt! He claimed that if she had checked the box “yes” then he would have become aware of his obligations much sooner (presumably when his paycheck seemed short) and he would not have been damaged by the findings of a larger arrearage, greater interest, more attorney’s fees, and lost wages from missing work to deal with court matters. The attorney filed a no evidence motion for summary judgment and sought sanctions for frivolous filing. The trial court granted the motion and ordered H to pay fees. On appeal H argued that the motion was defective because it failed to cite the “no evidence summary judgment rule” by number and requested a “summary judgment” in the prayer.

    The COA examined the motion and found that it complied with the no evidence rule by pointing out the specific elements of H’s claim which lacked evidence. H also argued that he produced at least a scintilla of evidence on some elements, however the COA noted that you must produce at least a scintilla of evidence on all elements, otherwise if one element fails to have any evidentiary support, the entire cause of action fails. H also complained that the fee order was improper because it failed to state good cause for the sanctions. The COA determined that H waived this error by failing to object to the form of the judgment. Judgment affirmed.

  8. Bertram v. Bistrup, 2009 Tex. App. LEXIS 2857 (Tex. App. – Austin, April 22, 2009) (Cause No. 03-05-333-CV) (mem. opinion)

    H and W were married in 1994 and had a child in 1999. In August 2002 both became ill. W was diagnosed with genital herpes. H began taking medication to prevent symptoms. H claimed that there was no agreement in 2002 as to who was at fault in contracting or transmitting the condition to the other. After discovering information which led H to believe that W had engaged in an affair and that she intended to file for divorce, H filed for divorce in 2004. H sought custody and sued W for breach of her “fiduciary duty not to transmit any sexual diseases to him". H sought damages for past and future medical expenses, mental anguish and interference with future relationships. The case was tried to a jury who answered “yes” that W had breached her duty not to transmit STD to H and in a separate question awarded H damages for $200,000. The trial court signed a decree which incorporated a judgment against W. W filed a motion for new trial challenging the sufficiency of the evidence to support the jury’s verdict which was denied and W appealed.

    The COA did an exhaustive analysis of the evidence to support each element of H’s claimed damages. The COA determined that there was insufficient evidence to support amounts for medical expenses, whether past or future and that there was no evidence demonstrating that H’s mental anguish over his condition was in any way extreme. The COA also found lacking evidence which supported H’s claim that his future relationships would be damaged by his condition. Overall the COA found the amount of $200,000 to be an arbitrary number that could only be tied to the amount requested in closing arguments by H’s attorney. W argued the evidence failed to establish that H had any disease or that he had contracted it from her but the COA did not reach these issues since it determined there was no evidence of damage. Because W only preserved her legal sufficiency challenge in her motion for new trial (as opposed to asserting a motion for instructed verdict or possibly objecting submission to the jury based on no evidence) the COA was required to reverse and remand instead of render.

  9. In re Hancock, 2009 Tex. App. LEXIS 2787 (Tex. App. – Corpus Christi, April 23, 2009) (Cause No. 13-09-123-CV) (orig. proceeding) (mem. opinion)

    W filed a suit for divorce in Floyd County Texas in July 2008. In August, H filed a SAPCR in Hidalgo County. In the Hidalgo county suit, W filed her original answer and simultaneously a motion to transfer venue based on the pending divorce action there. H filed no controverting affidavit. Following a non-evidentiary hearing the Hidalgo court denied the motion to transfer. W sought mandamus. The COA determined that TFC §155.201(a) is mandatory requiring a court to transfer the SAPCR to the court in which the divorce is pending. Finding that the W filed her motion simultaneously with her answer the motion was timely and the trial court was required to transfer the case.

    The COA affirmed that the provision of the Family Code are the exclusive rules which govern venue and transfer in SAPCR proceedings and that the rules of civil procedure which require such motions to be verified or supported by affidavit are not applicable. Mandamus granted.

  10. Varnes v. Varnes, 2009 Tex. App. LEXIS 2791 (Tex. App. – Corpus Christi April 23, 2009) (Cause No. 13-08-448-CV) (mem. opinion)

    H met W, a citizen of the Phillipines, in 2004 and they married in 2006. They separated in 2007 and W filed for divorce. W sought a divorce based on insupportability and alleged further that H was guilty of domestic violence against her. W’s petition also sought support from H based on a contract that H signed in connection with her immigration, wherein he agreed to support W as her immigration sponsor. H filed an answer and counter petition. H filed a motion for summary judgment arguing that there was no evidence of domestic violence. After a temporary hearing the parties announced an agreement that H would pay W $500 per month while the case was pending and further that the final decree would recite that W was granted a divorce based on domestic abuse without a finding of physical violence. The court accepted the parties’ stipulations. A final divorce hearing was later held. A decree was eventually signed and granted a divorce based only on insupportablity. The decree awarded property in possession to each and discharged them from their obligations under the temporary orders. The decree recited that all other requested relief was denied. W appealed. W challenged the grounds for divorce as cited in the decree because they were in conflict with the parties’ stipulations.

    The COA agreed, holding that the trial court erred in failing to enforce the parties’ agreement, which having been announced in open court satisfied the requirements of Rule 11. The COA ordered the decree reformed. As to the support issue, the COA ruled that the Mother Hubbard language did not preclude W from filing an independent action to enforce H’s contractual obligations for support under his immigration sponsorship but that her divorce pleadings were insufficient to state a cause of action on this matter within the divorce. The COA specifically recognized W’s right to pursue this as an independent claim after the divorce.

  11. In re Silverman, 2009 Tex. App. LEXIS 2854 (Tex. App. – Austin, April 24, 2009) (Cause No. 03-09-74-CV) (mem. opinion)

    A decree of divorce was signed in Comal County in 2006. In 2008 the Comal County court signed a final order of contempt against H which also awarded attorneys fees to W’s attorney. W’s attorney then filed a new enforcement action in the divorce cause number seeking a finding of contempt and jail for failure to pay the fees. H filed a motion to transfer the enforcement action to Harris County alleging that the child had lived there for at least six months. The attorney opposed the motion to transfer contending that her action was independent of the child related matters and therefore not subject to the rules of transfer governing SAPCR’s. She also filed a motion to sever her action from other issues pending in the divorce cause. The court denied the transfer and H sought mandamus.

    The COA ruled that TFC§155.201(b) applies equally to motions to enforce and because the attorney chose to file the suit as an enforcement action in the divorce cause number and in the court of continuing jurisdiction, it was subject to a mandatory transfer under the statute. Mandamus granted.

  12. In re White, 2009 Tex. App. LEXIS 2926 (Tex. App. – Tyler, April 30, 2009) (Cause No. 12-08-214-CV) (orig. proceeding) (mem. opinion)

    This H wins two awards … one for most outlandish ex-spouse revenge and the other for worst defense with a straight face.

    H and W were divorced in 2005 and named JMC’s. H was given primary possession and pick up and return was ordered to take place at H’s residence. Standard language was included for each party to notify the other in case of a change of address. As part of the property division, H was ordered to pay the note on a truck awarded to W. At some point after the divorce, H notified W that his address had changed from Palestine, Texas to El Paso even though H continued to reside ¼ mile away from W in Palestine. Before W’s weekend visitation, H would take the child to El Paso and at least for a few weekends until W discovered differently, she actually traveled to El Paso for pick—up and return. Thereafter, W filed a motion for enforcement alleging multiple violations of her right to possession, alleging that H had provided a change of address fraudulently and alleging several missed note payments on her truck. After a hearing the court found H guilty of contempt, sentenced him to jail but suspended that sentence on the condition that 1) pick up and delivery of the child be confined to Anderson County; 2) H pay W $12,000 in attorney fees and 3) H pay W $16,800 for damages due to repossession of the truck. The court also ordered that the child’s domicile would be confined to Texas, Oklahoma and Louisiana. H paid the ordered sums into the registry of the court and then filed a mandamus action (in lieu of habeas corpus because his confinement had been suspended). H argued that his failure to pay the truck note was a debt unenforceable by confinement on a finding of contempt.

    The COA agreed and held this portion of the order void. As to the change of address claim, H had the audacity to argue that the underlying order only required him to provide notice of a change and that nothing in the order expressly required this notice to be true. The COA affirmed the contempt finding regarding the false change of residence determining that the underlying order was clear and that by implication the order intended for the notice to be accurate. H also argued that the trial court impermissibly modified the underlying decree by expanding the place for pick-up and delivery of the child to Anderson County instead of his residence and by imposing a domicile restriction for TX, OK and LA. The COA agreed, finding that these were substantive modifications which did not result from proceedings initiated under Chapter 156. Finally H claimed that the order for attorneys fees as a condition of suspension of commitment was improper however the COA confirmed that fees awarded in a contempt action for the violation of possession orders are subject to enforcement by contempt just like child support pursuant to TFC §157.167(b). Mandamus granted in part and denied in part.

  13. Hagen v. Hagen, 2009 Tex. LEXIS ____ (Tex. Sup. Ct. May 1, 2009) (Cause No. 07-1065) (Petition for Review granted 2008 Tex. LEXIS 1171)

    H and W divorced in 1976. At that time, H was in the US Army. The decree provided that W was awarded a percentage of H’s military retirement pay, to be paid if, as and when H received it. Subsequently H retired and began receiving his retirement pay. W began receiving her allotted share. Thereafter, it was determined that H had a service related disability and H elected to take VA disability benefits (which are not taxable) as part of his military retirement pay (which was taxable). When W’s checks were reduced, she sought to enforce and/or clarify the decree. W also sought damages against H alleging that his election of disability benefits in lieu of military retirement was a breach of fiduciary duty and that he had converted her payments. he trial court determined that the decree was unambiguous and divided only the military retirement pay. The court of appeals reversed holding that the trial court’s decision was an impermissable modification of the decree under Chapter 9. (2007 Tex. App. LEXIS 6038; ____ S.W.3d ____)

    The COA held that res judicata barred H’s position as a collateral attack on the divorce decree and USFSPA could not be applied retroactively to collaterally attack the decree. H filed a petition for review with the Supreme Court. The Supreme Court concluded that the decree was not ambiguous and clearly did not reference any division of VA disability pay that H might receive. The question to be addressed then was whether at the time of the divorce, “military retirement pay” included “VA disability pay.” In 1976, federal law provided two means by which a former service member could receive disability: Under Title 10 which was retirement pay for disability and under Title 38 which was VA disability compensation, the latter being wholly unrelated to retirement. Also, in 1976 state law recognized the court’s authority to divide military retirement pay but held that VA disability pay was not an earned property right subject to division. Because H sought only to enforce the literal language of the decree the Supreme Court disagreed with the COA’s holding that H was attempting to collaterally attack the decree or modify it. The Supreme Court found the trial court’s ruling to be a permissible clarification and not a prohibited modification. In a dissent, Justice Brister urges the court to overrule Berry v. Berry and remand these proceedings to allow W to pursue her claims for conversation and breach of fiduciary duty. The majority refused to overrule Berry because (1) they did not find that their opinion conflicted in any way with Berry; (2) the W did not rely on Berry to claim that VA disability pay was part of military retirement pay; and (3) W did not challenge the trial court’s denial of her fiduciary duty and conversion claims on appeal. The Supreme Court determined that W had full opportunity to assert her positions in the trial court and that her circumstances do not warrant a remand. The court reversed the court of appeals and affirmed the trial court’s order.