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Gray's Interesting Cases for May, 2007

Updated and presented by David Gray
  1. In re Green, 50 Sup. Ct.J.654.

    H&W divorced in 2004 with an agreed decree in which the T/C recited that H has agreed to pay contractual spousal maintenance to W; therefore, H is ordered to pay W as spousal maintenance $1,950 per month. H didn't pay so W filed a contempt. The T/C held H in contempt and sentenced him to jail for 6 mos. and there to remain until he pays W $32,000. H filed for H/C in the Dallas CA which was denied so he filed a H/C with the Supremes which was granted in a unanimous per curium opinion.

    H contractually agreed to pay spousal maintenance thus he couldn't be imprisoned for non-payment of a contractual debt. Even tho H was "ordered" to pay spousal maintenance, such an order emanated from the parties' contract and not per the provisions of the F/C Cits not an "order" enforceable by contempt. W also argued that the spousal maintenance was contempt enforceable per §8.059(a) which states that the T/C can enforce by contempt "an agreement to pay maintenance voluntarily entered into by the parties and approved by the court.": (A section I've always maintained was snuck by someone in the Leg. in an attempt to contempt enforce all contractual maintenance (alimony) agreements). The Supremes said §8.059 (a) can not be used to contempt enforce such contractual agreements unless such agreement satisfy the other provisions of Chapter 8, i.e. 10yr. marriage, $2,500/mo. or 20% of gross income (whichever is less), not more than 3yrs., etc.

    Comment - Altho I've been critical of the Supremes for not accepting more family law cases to resolve conflicting CA opinions, kuddos to the Supremes. Contractual alimony or spousal maintenance isn't enforceable by jail time contempt even though its ordered unless the contract satisfies the other Chapter 8 requirements. Without mentioning it, the Texarkana CA opinion in - Taylor (130/448/3) is disapproved, i.e. just using command language in a decree approving a contractual spousal maintenance doesn't make the obligation contempt enforceable. It's such a comfort when the Supremes finally get around to agreeing with me.

  2. Spiegl v. KLRU Endowment Fund, No. 03-06-00593-CV, not yet published (CA Austin).

    During the pendency of the parties' divorce suit, they entered into an irrevocable MSA which settled all issues in the divorce suit. H tried for 2 yrs to revoke the MSA but was unsuccessful. One day before the hearing to enter the divorce decree based on MSA, W died. In the probate of W's will, H argued that the divorce MSA was not binding on him. The T/C ruled otherwise.

    On appeal the CA framed the issue as "Is the MSA enforceable under the F/C?" In a case of 1st impression, the CA found that the MSA was enforceable even though the MSA was never approved by the divorce ct and the divorce suit terminated upon W's death. The CA recognized that §6.602 provides that if a MSA meets the requirements of §6.602, the MSA is "binding" and a "party is entitled to judgment". The CA said that this language shows the Leg's intention that a MSA is binding and enforceable even in absence of a judgment incorporating (approving) the MSA. Public policy also mandates the enforcement of the MSA.

    Comment - Poppycock! A MSA is done to end the pending litigation. When that litigation ends, the MSA should fall too. What if H (a real nice guy) agrees in the MSA to pay alimony to W which does not terminate until H's death (a nice but stupid guy) as he wants to be sure W has a decent life style (no community prop. to divide but H is a high wage earner)? The whole reason for H's agreement dies with W yet H has to continue alimony payments to her estate? This case is a prime example of bad facts making bad law. Its obvious that had W lived another 24 hours, the MSA would have been incorporated in a decree which would then bind H to its terms thus the CA stretched all logic to come to a result they wanted to achieve, the law be damned. If this holding is correct (which it isn't), if you have an irrevocable MSA and the parties reconcile and the divorce is DWOPed, 30 years later when one of the parties dies, the MSA is still binding? What if the parties decide (say for religious reasons) to continue to live apart but not divorce, the MSA is still binding after 30 years if one party dies or one of them files another divorce? Bologna. If this case is good law, every MSA must now contain verbiage saying, "This agreement is null and void if not incorporate into or approved by a final decree terminating the parties' marriage in the proceeding to which this agreement relates."

  3. Chisolm v. Chisolm, No. 04-06-00504-CV, not yet published (CA, San Antonio)

    H & W divorced by an agreed decree which called for the sale of the parties' home. W appealed. While the appeal was pending H filed for bankruptcy giving rise to an automatic bankruptcy stay order being issued. After the stay order was issued, H requested the T/C to appoint a receiver to sell the home and H's request was granted. A year later the bankruptcy ct. lifted the stay and dismissed the bankruptcy. Then the Supremes reversed and remanded the divorce. W then filed a motion to vacate the receivership order alleging that it was void as it was made in violation of the bankruptcy stay order. The T/C denied the motion holding that the receivership order was voidable and the defect was cured when the stay was lifted. W appeals.

    CA reversed holding that, despite several federal cases to the contrary, any order issued by a state court in violation of a bankruptcy stay order is void irrespective of any subsequent action by the bankruptcy court.

    Comment - I think I read a contrary holding a couple of months ago but my limited research was unable to locate that opinion.

  4. In the Interest of A.L.G., No. 04-06-000172-CV, not yet published (CA, San Antonio)

    H & W divorced by decree whereby H was ordered to pay c/s of $860/mo to W. Sometime thereafter H&W agreed that H would pay $460/mo. directly to his child's day care center and the $400 balance to W. 15 months later W filed a c/s enforcement action requesting a monetary judgment against H for the 15 months he paid to the childcare center rather than pay her. H pled estoppel as a defense. The T/C awarded W a judgment for $3,220. (Yeah I know, 15 x $460 is $6,900. Unfortunately many judges aren't judges anymore, they are placators - give a little to each side and everyone will be pleased.) H appealed.

    Although also perplexed by the T/C's math, the CA reversed and rendered. H didn't prove the 5 elements of estoppel (In re: M.W.T., 12/598/3) but he did prove the defense of quasi-estoppel which applies when it would be unconscionable to allow a person to maintain a position inconsistent with the one in which he acquiesced or accepted a benefit.

    Comment - Cases are legion that say the parties by private agreement can't modify a court ordered c/s award. Why is this case different? Perhaps because W did not contest H's testimony that they had an agreement. If this "quasi estoppel" defense isn't good law, it ought to be. I doubt the AG will agree with me. I'd like to see other CAs adopt this theory but only time will tell.

  5. O'Connor v. O'Connor, No. 2004-52791-CV, not yet published (CA, Houston - 1st)

    Divorce and child custody suit filed. The T/C appointed an amicus atty. After the trial W filed an appeal. The amicus atty filed a brief which the CA refused to consider. The F/C doesn't state who the amicus attorney represents except to say that he/she is to assist the T/C (§107.003). The CA ruled that since the amicus atty is to assist the T/C, the amicus' client is the T/C for appeal purposes. As it is inappropriate for the T/C to file a brief in an appeal, it is likewise inappropriate for an amicus atty to do so.

    Comment - I bet a lot of amicus attys are going to love this opinion.

  6. Gardner v. Gardner, No. 04-06-000218-CV, not yet published (CA, San Antonio).

    After 10 years of marriage H filed for divorce. There were 3 kids (A, B, & C). W is the biological mother of all 3 kids. H is the biological father of A and the adopted father of B. By MSA, it was agreed that H&W would be the JMCs of all 3 kids but the parties couldn't agree as to whom should be able to establish the primary residence of B&C. Following trial H was awarded the right to establish the primary residence of B&C altho he was not the biological or adopted father of C. W appeals claiming that since H is not C=s father, the presumption of §153.131 applies, i.e. a non-parent must prove that the parent would significantly impair the child's physical or emotional health/development.

    CA agrees that this presumption applies to determine custody but not to determine a child's primary residence. W cites the El Paso opinion in De La Pena (999/534/2) which says the §153.131 presumption applies to primary residence issues. The San Antonio CA refuses to follow De La Pena and holds that primary residence matters are controlled by the best interest test with no parent/non-parent presumption.

    Comment - Once again two CAs with diametrically opposed rulings.

  7. A.G. v. Phillips, No. 01-05-00973-CV, will not be published - memo opinion (CA, Houston - 1st)

    H & W married in '70 and later moved to Cal. where child 1 was born. In '77 W returned to Tex. with her child. In '82 child 2 was born with W in Tex. and H in Cal. H then filed some kind of suit in Cal. to establishing his paternity of child 1 but disclaiming of his fatherhood of child 2. The Cal. judgment set the paternity of child 1 and ordered H to pay $125/mo in c/s but expressly excluded child 2 from the order due to H's paternity denial. In '86 W filed for divorce but never served H. Default divorce granted, H was found to be the father of both kids and ordered to pay $500/mo in c/s. In '91 the AG filed for a wage withholding order and H was served with citation along with a form to contest the requested order. H filled out the contest form saying he'd been complying with the Cal. order thus he didn't owe any c/s (unfortunately for him he didn't mention that he wasn't served in the divorce action or that child 2 wasn't his.) H showed up at the withholding hearing but it was reset. H returned to Cal. but never received notice of the reset date. Later the A.G. obtained a default wage withholding and arrearage judgment for $24,000. Although the opinion doesn't say, I assume this withholding order was never served. In 2005 the A.G. levied on H's bank acct. and received $12,500. H filed a contest to the levy and a motion to declare the '86 decree and the '92 order void. The T/C voided both orders finding that W's '86 pleadings did not allege facts sufficient to invoke Texas' long arm juris. over H. If the '86 decree is void so is the '92 withholding order. A.G. appeals.

    Reversed. H's motion to void the '86 decree is a collateral attack on '86 decree which only be done if the '86 T/C had no personal juris. over H. Unfortunately for H, if a party later makes an appearance in a suit seeking affirmative relief without pleading lack of personal juris. in the original cause, this is a general appearance which consents to the personal juris. in the original suit (or at least waives this issue). When H filed a contest to the A.G.'s wage withholding order, he also asked the T/C to determine what c/s arrearage he might have. When he did this he made a general appearance in the divorce action this nullifying the lack of personal juris.

    Comment - Gee whiz. This may be correct law but it sure is harsh. If someone comes to you saying he just learned of his c/s obligation arising from a default divorce action where he was never served, file a bill of review before you do anything else.

  8. In re Carlton, No. 09-07-00241-CV (CA, Beaumont).

    H was apparently held in contempt at the A.G.'s request for failure to comply with a family law judgment. A record of the contempt proceeding was done by an audio tape which was inaudible. H filed for H/C. Upon learning of the defective record, the A.G.'s office in charge of the defending against the H/C wrote the following letter to the CA.

    Comment - I suspect that the futures of the asst. A.G.s associated with this matter are rather bleak - too much knowledge of the law, too ethical and way too much integrity.