Houston Bar Association - Family Law Section

Gray's Interesting Cases for July 2005

Updated and presented by David Gray

Mathis v. Lockwood, 48 Tex. Sup. Ct. J. 36.
L & M lived together for a while and after they separated, L filed a declaratory judgment action requesting a ruling that he and M weren’t common law married. M, pro se, filed an answer and the case was ultimately set for trial. Notice of the trial setting was supposedly mailed by L’s atty to M’s last known address (which happened to be L’s home where M no longer resided). M didn’t show up for trial so the T/C entered a default judgment. M filed a sworn MNT claiming she had no notice of the trial setting. After L’s atty testified he mailed a notice to M, the T/C denied M’s motion so she appealed. The CA affirmed finding that M didn’t overcome the presumption that a T/C tries cases only after the parties have proper notice of the trial setting.

The Supremes reverse. Sending a trial setting notice per Rule 21a does create a presumption of receipt of service; however, Rule 21a requires the sending party/attorney “to certify compliance with Rule 21a on a filed document.” L’s atty’s failure to file a cert. of service negates the Rule 21a effect and such failure cannot be cured by testimony. Without the Rule 21a presumption of receipt, L’s atty’s testimony that he mailed a trial setting to M was no evidence that she received it; therefore, M’s uncontroverted testimony of no receipt is binding on the T/C. Add’lly the CA held that parties have a duty to keep the T/C and opposing parties advised of their current address. The Supremes said there is a split of authority on the question of “having a duty;” however, assuming there is a duty, failure to so advise must be intentional rather than a mistake before the T/C can deny a party the opportunity to be heard, i.e., no default judgment.

Comment - WOW!! Boy, is this going to knock post answer default judgments in the head if the defaulted party timely files a sworn MNT claiming no notice of trial setting. What about these court generated setting notices to a pro se party where the party has moved? The T/C can’t default unless there is proof that the defaulting party intentionally failed to advise the T/C of his/her new address. Don’t be silly, Gray. The courts are just going to go ahead and grant the default trusting that no MNT will be filed.
Ellis v. Zieben, No. 01-04-00436-CV, will not be published- memo opinion (CA, Houston-1st).
In ‘89 H & W divorced but the T/C failed to divide 1,000 shares of H’s newly formed corp which only had its $1,000 initial assets at time of divorce. Post divorce H transferred alleged sep. prop. to the corp which was dissolved in ‘98 with H receiving all the corp’s assets which he then sold for $1.95 million. In ‘03 W filed suit to divide the 1,000 shares of the corp and/or the $1.95 million. The T/C found hat at the time of divorce the corp was only worth $1,000 and any increased value thereafter came from H’s post divorce efforts or transfer of sep. prop. to the corp. W got $500 & H got the 1,000 shares of stock or any mutation thereof. W appeals claiming the T/C finding on post divorce increase due to sep. prop. transfers was erroneous as H failed to trace such transfers by clear and convincing evidence.

CA affirmed. There is no case law requiring such tracing or evidentiary standard in a post divorce partition suit. Also in a post divorce partition suit, undivided assets are valued as of date of divorce.
Powell v. Stover, 48 Tex. Sup. Ct. J. 33A.
H & W lived in Texas when child A was born. H moved to Tenn. in Feb. ‘01 and W followed in May ‘01 with A in tow. W obtained a Tenn. driver’s license; opened a Tenn. bank acct; starting looking for a job; and leased a Tenn. house. 10 mos. later W moved back to Kountze (county seat of Hardin County -- 6 miles north of where I deer hunt) where she gave birth to child B and filed for divorce claiming to be a Texas domiciliary for 6 mos. & a Kountzee for the past 90 days (she left Tenn. 10 days earlier). 2 wks. later H filed for divorce & custody in Tenn and had W served before W had him served. H filed an abatement plea and a motion to dismiss on a lack of juris. over A as A had resided in Tenn. for more than 6 mos. prior to the filing of W’s SAPCR in Texas thus Tenn. was A’s home state. The Tenn T/C awarded H temp. custody of A after finding it had juris. over A. In the hearing on H’s motions in Texas, W testified that her 10 months in Tenn. were only temporary so Texas was her permanent home. Judge Stover (duly elected by the citizens of Hardin County) overruled H’s motions finding that A&B were born in Texas & there was no doubt that Texas is B’s home. H filed mandamus which the Bmt. CA denied because the fact issue of W’s domicile was resolved in W’s favor.

H filed mandamus to the Supremes who granted same holding:
1. Under the UCCJEA, W’s domicile is irrelevant. The F/C defines “home state” as the state “in which a child lived with a parent.” W assumes she is the only parent covered by the F/C – not so, as H is a parent too and he’s domiciled in Tenn.
2. Add’lly W’s domicile or H’s domicile is also irrelevant as the subjective intent of H or W as to where a party is domiciled isn’t a part of the UCCJEA. §152.102 speaks to the state where a child “lived” with a parent – not domiciled or resided. Child A clearly “lived” with either H or W or both of them in Tenn. for more than 6 mos. prior to W’s filing so Tenn. is A’s home state.
Comment - I have to admit that I too have fallen into a trap of subjective intent to determine domicile of a suing parent in home state issues and have only looked at the suing parent’s domicile to determine juris. I believe the Supremes have hit the nail on the head and have opened our eyes on UCCJEA juris. issues. Well done.
Where is Eastland? Waaaaaaaaaay Out There!
Allen v. Mancini, No. 11-04-00067-CV, not yet published (CA, Eastland).

H & W divorced in ‘97. H & W were JMC of their child with W having primary custody. In ‘03 H filed a modification suit to change primary custody of the kid to him. During the trial, H offered tape recordings of various telephone conversations between himself and W and also telephone conversations between W and the child. Neither W or the child knew that H was taping their phone calls. W’s objections to the admission of the unauthorized telephone conversations between her and her child were overruled. The T/C awarded primary custody to H so W appealed.

As to the admission of the “wire taps,” the Eastland CA acknowledged that the 1st CA’s opinion in Collins v. Collins (904/792/2) clearly found that the taping of a telephone conversation by a 3rd party without the consent of the 2 conversants is an illegal wire tap which makes the tape inadmissible; however, Eastland refused to follow Collins. Eastland said that altho Chapter 123, Tex. Civ. Prac. & Rem. Code, makes the 3rd party tapper liable for civil damages, it doesn’t speak to the admissibility of the illegal wire tap. Since Chapter 123 doesn’t preclude such admission, such wire taps are admissible. Additionally, as H was a JMC and had the right to consent to his child’s medical, dental, surgical, psychiatric or psychological treatment and could also consent to her marriage or her enlistment in the armed forces, he also had the authority to consent, on her behalf, to the taping of her telephone conversations with other parties!

Comment – I have tried to put into words how wrong this opinion is but I just can’t do it. I leave it to you to express your feelings. The thought that the authority to consent to your daughter’s marriage is equivalent to authorizing an illegal wire tap of her phone is beyond ludicrous.
In the Matter of Powell, No. 11-04-00142-CV, not yet published (CA, Eastland).
H & W divorced in ‘01 and W later filed an enforcement action which resulted in H having to pay W’s atty $1,000 by 11/1/03. On 10/30/03 H delivered to the atty’s office 100,000 unrolled pennies (20 bags weighing 20 lbs each -- 400 lbs. of pennies) in payment of the ct. order. It took the atty 3 hrs to haul the pennies to his bank which charged him $100 to “redeem” the pennies. The atty then filed contempt against H for his “frivolous and ridiculous” payment. (Obviously the atty has no sense of humor) The T/C refused to hold H in contempt but, also having no sense of humor, ordered H to pay the atty an additional $533 ($350 in atty fees, $100 for the bank redemption fee and $83 for the contempt filing fee) and this payment must be paid with 5 $100 bills, 1 $20 bill, 1 $10 bill and 3 $1 bills. H appealed saying the T/C has no legal basis to make him pay the additional $533.

The Eastland CA affirmed.

Comment – I searched all of the law I knew of to find a legal basis for this ruling and finally found it in the Texas Rules of Appellate Procedure -- Rule 5555.55 under the heading “Cause We Said So.” What’s really funny is that the atty who accepted the 100,000 pennies didn’t have to as our Yankee govt. says in its banking laws that its coinage in excess of a total of $5.00 is not legal tender for the payment of debts. Since the atty had the right to refuse the 100,000 pennies but failed to do so, he should be estopped from claiming foul (or is that fowl?). Apparently, there’s not much to do in the Eastland area and they don’t smile much there either. What if H had delivered 1,000 $1.00 bills wadded up in a croaker sack? Is this method/manner of payment sanctionable? Gee wiz, fellers, get a life.