Houston Bar Association - Family Law Section

Gray's Interesting Cases for June 2005

Updated and presented by David Gray

In the Interest of T.D. M.C., No. 12-03-00300-CV, not yet published (CA, Tyler).
Custody suit between the child's mother and her former in-laws in which an ad litem was appointed. Pending trial, the in-laws filed a grievance against the ad litem. The ad litem advised the T/C as she was concerned that the grievance filing might create a conflict of interest. I suspect that the T/C told the ad litem not to worry as one of the parties always files a grievance against the ad litem. During trial, the in-laws filed for a mistrial based on the ex parte contact between the ad litem and the T/C which the T/C denied. Needless to say mom won so the in-laws appealed.

Affirmed. Neither the T/C nor the ad litem violated any disciplinary rule as there was no communication between them regarding the merits of the case. Even if the CA is wrong in this respect, the in-laws had to show that such communication was harmful to them which they did not do.

Comment - Of course there was no harm by the buddy of the T/C advising the fact finder that one of the parties had filed a grievance against the T/C's pal. This couldn't possibly have prejudiced the T/C. Maybe this case is correct but it's just bad practice for the ad litem to ex parte the T/C. If this happens to you, either w/draw from the case or keep your mouth shut and do your job.
Hall v. Hall, No. 12-03-00417-CV, not yet published (CA, Tyler).
While their divorce was pending, H & W had a mediation which resulted in an irrevocable MSA being signed. Thereafter W revoked the MSA because H had hidden assets from her ala Boyd (67/398/3) thus the MSA should be set aside. T/C entered judgment based on the MSA and W appealed.

Affirmed. Boyd does not apply in this case. In Boyd the MSA said that each party represented that they had made a fair and reasonable disclosure of the property known to them thus H had a duty to disclose all substantial assets. When H breached this disclosure duty, it gave rise to W's right to revoke the MSA. In this case W hadn't sent out discovery and there was no Boyd type language in the MSA so H didn't have a duty to disclose.

Comment - WOW! So H has $1,000,000 in a bank acct. which is awarded to him in the MSA but W doesn't know how much money is in the acct. W learns of the $1,000,000 before judgment is rendered. There's nothing she can do? H is rewarded for his chicanery? That's what this case says. Another example of an appellate ct. writing before thinking of the effect of their written word. I doubt if many CA's are going to follow this reasoning if substantial assets are involved.
Pace v. Pace, No. 05-03-00520-CV, not yet published (CA, Dallas).
H & W married in '97 and H filed for divorce in '02. W owned quite a bit of separate property, a lot of which was in banks and brokerage accts. During the marriage W bought a house using funds from bank accts and transfers from her brokerage acct. During trial, W testified as to the facts supporting her claims of sep. prop. which H did not contest; however, W did not introduce any bank records or other corroborating evidencing (you know what's coming). The T/C found that W's claimed sep. prop. was her sep. prop. & H appealed.

CA affirmed holding:
1. Because the evidence is uncontroverted, it is also clear and convincing.
2. A spouse is competent to testify on the sep. character of property without producing documentation.
3. It is not necessary to corroborate a spouse's testimony to overcome the community property presumption and satisfy the clear and convincing standard so long as it is uncontradicted.
Comment - Had this case been decided by the CA sitting 30 miles west of Dallas, it would have been reversed as the Ft. Worth CA has held that undocumented, uncontroverted spousal testimony can not overcome the community presumption. Boyd (131/605/3). Once again there are dozens of cases on both sides of this issue but, of course, no Sup. Ct. cases. If you have a sep. prop. claim, document it if you can lest you fall in a Boyd ct. rather than a Price ct.
In the Interest of S.D.M., No. 04-03-00905-CV, will not be published - memo opinion (CA, San Antonio).
During their divorce, H & W signed a Rule 11 Agreement resolving all issues which was filed with, and approved by, the T/C. The Rule 11 Agreement obligated H to pay for the private schooling of the parties' child. Amazingly 7 mos. later the T/C signed a judgment which restated all the Rule 11 provisions except it deleted the private schooling provision (can you say malpractice?). No appeal. 11 mos. later W filed a motion for nunc pro tunc to include the private school order but the T/C denied the motion. No appeal. 8 mos. after that W filed an enforcement proceeding to enforce the private school agreement which the T/C summarily dismissed. W appeals.

Affirmed. The Rule 11 agreement wasn't a ct. enforceable judgment -- the judgment of the ct. was the one signed 7 mos. after the Rule 11 filing.

Comment - So why report on this case? The holding is obvious. Here's why. Although the Rule 11 agreement is not a ct. order/judgment, it is a contractual agreement which is enforceable by a breach of contract suit for damages. §154.071, Tex. Civ. Prac. & Rem. Code and Compania v. Simmons (53/365/3).
In re Fischer-Stoker, No. 01-04-00471-CV, not yet published (CA, Houston - 1st).
H & W divorced by decree signed 12/23/03 under which the T/C ordered both of them to give an accounting to the other as of a date certains on certain bank accts together with a check for 2 of the balance of the accts under their respective control as of the same date. W timely filed an appeal which is still pending. After filing the appeal (without a supercedeas bond), H filed a contempt action against W as she never gave H the ct. ordered accounting or the check for 2 of the W controlled bank accts. W filed a motion to dismiss the contempt as the appeal was pending ala Boniface (650/776/2).

The T/C denied W's motion so on 4/28/04 W filed a mandamus with the 1st CA to force the T/C to dismiss. 4 mos. later (8/19/04) the CA granted the mand.; however, 4 mos. later (12/9/04), the CA withdrew its 1st opinion and issued its 2nd opinion granting the mand. Sometime after the Supreme's issued its 12/31/04 opinion in Sheshtawy (154/114/3), the CA withdrew its 2nd opinion and now issues its 3rd and "final" opinion dated 5/5/05B still granting the mand. In Sheshtawy the Supremes said there is no statute prohibiting a T/C from enforcing its alimony order so the T/C retains its jurisdiction to contempt enforce its alimony orders until reversed by a CA. However in this case there is a statute, §9.007(c), which says the power of a T/C to render further orders to assist in the implementation of ...the property division is abated while an appellate proceeding is pending. The CA found that H's contempt action was an "implementation of the property division in the divorce decree" thus impermissible per §9.007(c).

Comment - 1st -- Kuddos to Shawn Casey who was the winning attorney in both Sheshtawy and Fischer -- Stoker who, like most good lawyers, can talk out of both sides of his mouth depending on the circumstances. 2nd -- what's wrong with this holding? Well, I can see how the CA could find that contempt enforcement of W's obligation to deliver a check is "implementation" of the property division but forcing her to produce an accounting isn't "implementing" anything - it's just forcing W to obey a court order (kinda like post-trial discovery). I'm sure Shawn will disagree. 3rd - If this case is correct, then Boniface is still good law except for alimony awards and SPACR orders. 4th - This may not be the last word on this subject as H's atty, John Grubb, is taking this to the Supremes. 5th - and last - H filed a contempt action against W in the CA in May '04 but the CA has yet to set it for hearing despite H's numerous requests for it to do so - Holy cow!