Houston Bar Association - Family Law Section

Gray's Interesting Cases for June, 2006

Updated and presented by David Gray

In re Narvaiz, No. 09-06-121-CV, not yet published (CA, Beaumont).
M & F had a child in ‘99 (no marriage). They lived together in M County until Dec. ‘02 when M moved to B County. The parties shared custody with F having the child’s possession for 2 weeks each month. In mid July ‘05 M refused to deliver the child to F so on 8/18/05 F filed a SAPCR in M County. On date of filing, F should have had possession of the child; however, the child remained with M in B County in violation of the parties’ every 2 week possession agreement which had existed for nearly 3 years. M filed a motion to transfer which was denied after the T/C found that the child resided in both counties thus allowing the SAPCR to be filed in either county.

M filed for mandamus which was granted. §103.001(c)(2) says if the parents don’t reside in the same county and no conservator, etc. has been appointed, the child resides in the county where the parent having the actual care, control and possession of the child resides. Since the child was with M in B County when the SAPCR was filed, the suit must be transferred to B County.

Comment - Probably a correct ruling; however, this holding will encourage people to grab the kid, flee to their home county and file suit. I don’t think that’s what the Leg. intended but it’s the end result. If you have this situation, prepare your SAPCR, hire Child Snatch, Inc. to grab the kid and file your suit as soon as Child Snatch crosses the county line, with kid in tow, into your county.
In re: Stenson, No. 14-06-00094-CV, will not be published – memo opinion (CA, Houston- 14th).
H & W were divorced by decree signed prior to Feb. ‘05 which ordered H to pay $500/mo. c/s. In Feb. ‘05 the T/C signed an amended decree which superceded the earlier decree but kept the $500/mo c/s. In Aug. ‘05 a 2nd amended decree was signed which superceded the previous decrees but again kept the $500/mo. c/s. H didn’t pay the c/s so a contempt was filed. The T/C held H in contempt for 10 non-payments: Feb. ‘05, March ‘05, and May ‘05 thru Dec.‘05 and sentenced him to 10 days each to run consecutively, i.e. 100 days in jail.

H files H/C which is granted. Relying on another of its memo opinions (Smith, 1996 WL 283063), the CA ruled that since each of these decrees superceded each other, the Aug. ‘05 decree is the only decree that’s enforceable. 6 of the 10 c/s payments occurred prior to Aug. ‘05 so they weren’t enforceable. DUH!

Comment – I wonder how W’s atty is going to explain to W why she lost $3,000 in c/s because a proper decree wasn’t drawn in the 1st place. Also if the issue of enforcement of superceded decrees is not an uncommon appellate issue, why doesn’t the 14th CA publish this opinion so judges/lawyers who don’t read this rag will be aware of this case law. Double Duh!
In the Matter of the Marriage of Brown, 187 S.W.3d 143 (Tex. App. Waco, 2006).
H & W divorced on the grounds of insupportability. The T/C awarded W 100% of the community estate based on H’s fault in the marriage breakup plus H didn’t need any of the assets as he was serving 50 years in the pokey for child molestation. H appeals on 2 points: (1) You can’t consider fault in a property division if the divorce is granted on insupportability grounds (2) There was insufficient evidence of property value to base a property division on.

CA reverses. As to the fault issue, a T/C may consider fault in a property division in an insupportability case despite a contrary holding in Phillips, 75/564/3. The Supremes have never decided this issue (see Young, 609/758/2 where the Supremes expressly refused to give an opinion). As to the 100% award to W, this might not be error if adequate evidence was introduced to form a reasonable basis for such an award. Being in jail for 50 years ain’t enough.
In re Compton, 185 S.W.3d 526 (Tex. App. Houston–14th).
H filed a SAPCR in G County. W was served. On the 6th day following service, a show cause hearing was held by which H was awarded temp. custody of the parties’ child. On the 7th day following service, W filed a motion to transfer as she and the child had resided in X County more than 6 mos. prior to H’s filing. The motion to transfer was denied as being untimely. §155.204(a) says a motion to transfer is timely if filed the earlier of: (1) 1st Monday following 20 days after service or (2) Commencement of the hearing. (1) hadn’t occurred when W filed her motion but there had been a hearing on Day 6.

W filed a mandamus. Was the temp. hearing on Day 6 “the hearing” as contemplated in §155.204(a)? No! “The hearing” means final trial, not a temp. hearing. Mandamus granted as W’s motion was timely filed.

Comment – H screwed up. Had he hired Child Snatch, Inc. as I suggested in Narvaiz, G County would have been the child’s resident county for venue purposes. I think Child Snatch may be a good stock investment as its business should be booming.
Coke v. Coke, No. 05-04-01604-CV, will not be published– memo opinion (CA, Dallas).
H & W entered into an irrevocable MSA but before judgment was rendered, W filed a motion to set aside (revoke) the MSA due to H’s fraud, duress and undue influence. W also properly requested a jury trial on these issues. T/C entered judgment based on the MSA. W appeals.

Affirmed. Altho W had filed her jury request and paid the jury fee, at the prove up trial in which the T/C said he/she was going to honor the MSA, W did not advise the T/C of her demand for a jury trial on the fraud, etc. defenses she filed. Jury trial waived.

Comment – WOW! The CA implies that a party to an irrevocable MSA may contest the MSA based on fraud, etc. ala Boyd (67/398/3) and the party is entitled to a jury trial on these issues. I’m not sure this is true but it sure opens the door to contesting a MSA. Question: A MSA is signed on Day 1, a party files a revocation on Day 2 pleading the Boyd defenses with a jury demand. A year later the jury finds no fraud, etc. so a divorce judgment is entered. What happens to all those assets/debts acquired by the parties during the year awaiting the jury trial? They weren’t mentioned in the MSA as they didn’t exist when the MSA was signed but did exist at the time of divorce rendition. I guess the T/C divides the non-MSA assets/debts in a just and fair manner after a ful blown trial. Talk about a monkey wrench in the gears. Seems to me that this case could really screw up the mediation and MSA practice.
In the Interest of A.M. & B. M., No. 03-0509, not yet published (Tex. Sup. Ct.).
H & W divorced sometime prior to ‘85 with H being ordered to pay $450/mo. in c/s which he apparently did until Dec. ‘85 when W dumped the kids on him and left them with him until June, ‘88. W re-dumped the kids on H in May ‘94 and took them back (or they turned 18) in July ‘96 so H had the kids approx. 58 months during which he paid no c/s to W nor did W pay H anything during these 58 months. Some years after all the kids are over 18, W contacts the A.G. who exercises his usual good judgment and files a c/s enforcement action to obtain a $ judgment against the deadbeat dad for the c/s he didn’t pay. H filed an affirmative defense under §157.008 (a) to wit: he had the kids for 58 months so he shouldn’t have to pay W the ct. ordered c/s and a c/c under §157.008 (d) requesting a $ judgment against W for the c/s she didn’t pay him during this 58 month period. H couldn’t produce evidence of how much $ he spent on the kids during the 58 month period W did not file an answer to H’s c/c altho she did personally appear for trial. When H moved for judgment on his c/c as W hadn’t filed an answer, the A.G. hand wrote a pro se answer for W to H’s c/c but the T/C struck the answer as it was prepared by the A.G. WHO DOESN’T REPRESENT THE OBLIGEE. The T/C found that after deducting from the total am’t of c/s ordered, the c/s actual paid by H and the am’t of c/s owed by H during the 58 month period he had the kids (58 x $450 = $26,100), H still owed $9,350. However, W should have paid c/s to H during the 58 months he had the kids in the am’t of $15,196 (I don’t know how the T/C came up with this figure), but the T/C only allowed H reimbursement for $7,019 so she awarded W judgment against H for $2,331 rather than awarding H judgment against W for $5,846 ($9, 350 less $15,196 = $5,846). The A.G. ignoring its own matra of We Don’t Represent The Obligee, then appealed the default judgment against W, etc. H cross-appealed the T/C’s reducing the am’t due him from W.

The CA affirmed in part and rendered in part (101/480/3) after refusing to consider most of the A.G.’s appeal points regarding W as the A.G. has no standing to argue on W’s behalf because the A.G. DOESN’T REPRESENT THE OBLIGEE holding:
1. The T/C was correct in rendering judgment nil decit against W as she failed to file an answer to H’s c/c. There’s a huge difference between physically appearing at trial & filing an answer. No filed answer admits the factual allegations in the moving party’s pleadings thus the non-answering party can’t put on evidence contesting those admitted facts, Bredeson v. Merrill Lynch, 513/110/2.
2. Contrary to Buzbee (870/340/2) and Curtis (11/466/2), H doesn’t have to produce evidence of exactly how much he spent on the kids support during the 58 mos. he had them. The T/C can assume he spent at least the am’t he was ordered to pay in c/s to cancel the ct. ordered c/s during the 58 month period.
3. Since the T/C found that W should have paid H $15,196 in c/s during the 58 month period, the T/C had no authority to reduce this am’t as a reimbursement or credit claim against W so H is entitled to judgment against W for $5,846 ($15,196 less $9,350).
4. The T/C does not double dip W by cancelling the court ordered c/s during the 58 months H had the kids and then finding that W had a c/s obligation to H and enforcing it by way of a $ judgment. §157.008 gives H two remedies, an affirmative defense per §157.008(a) (cancel the ct. ordered c/s during the time he had the kids) and a claim for reimbursement per §157.008 (d) and (e) for the c/s W should have paid to H.
The A.G. then applied for cert. to the Supremes who granted it. The Supremes reversed and remanded holding:
1. Under §157.008 H was entitled to either an offset against his c/s obligation or reimbursement but not both.
2. If the obligor pays the c/s when he/she has the child, he/she is entitled to (and must seek) reimbursement. If no c/s is paid then the obligor is limited to an offset against the c/s owed. If some months c/s was paid and in some it wasn’t, you plead reimbursement for the c/s paid months & offset for the other months.
3. The A.G. did have standing to defend against H’s §157.008 claims as H’s claims effected the A.G.’s c/s collection efforts.
4. The C/A did not err by assuming that H provided “actual support” for the child in an am’t equal to the c/s am’t he was ordered to pay. In other words, H doesn’t have to prove the actual dollar am’t he paid to support the child– no accounting is required.
The dissent would require proof and an accounting but thankfully, it’s a sole judge.

Comment – Bah! The Supremes are probably correct but I sure did like the CA opinion which pounded the A.G. so well.