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Gray's Interesting Cases for July, 2006

Updated and presented by David Gray
  1. Rhamey v. Fielder, No. 04-05-00240-CV, not yet published (CA, San Antonio).

    H & W separated but agreed that they would alternate custody of their 6 yr. old; i.e., 2 wks with W & 2 wks with H. W filed for divorce. W’s atty wrote H and said "Y’all have a 2 wk. schedule which W wants to keep and not disturb the status quo." H then signed a waiver of citation. Yea, you know what’s about to happen. W appears in ct. and the T/C enters a SPO. H files a MNT which is denied. H appeals.

    Reversed. Although there’s some question as to whether the Craddock (133/124/2) test should be applied to MNT in a SAPCR, this test applies until the Supremes say otherwise (default should be set aside if failure to answer wasn’t intentional but due to accident/mistake; there’s a meritorious defense; and granting such will not cause delay or injury to the another party). Where there’s a waiver signed, the waiver judgment is treated as a default judgment. W’s agreement to the 2 wk alternating custody schedule, coupled with her atty’s representation that they wanted to keep that schedule and the status quo, was a misrepresentation (fraud) which prevented H from filing an answer (he didn’t intentionally fail to file) and the existence of the custodial agreement gave H a meritorious defense.

    Comment - Be careful what you put in those transmittal letters accompanying the waiver you send to the opposing party if you are contemplating a change to the status quo. This case would also apply if you appear before the T/C requesting status quo but the T/C, sua sponte, changes the deal. If the T/C does it, the waiver signer is entitled to notice of the anticipated change. Try to convince a T/C it can’t change the status quo without first advising H of the anticipated change. The T/C will ignore you thus creating reversible error.

  2. In the Matter of the Marriage of Joyner, No. 06-05-00096-CV, not yet published (CA, Texarkana).

    Divorce filed. The parties signed an irrevocable MSA which resolved all SAPCR and property issues except for a few personal items which the parties agreed would be resolved by the T/C. On 7/2/03 the parties appeared before the T/C and testified as to divorce grounds and the facts surrounding the disputed personal prop. No mention was made of the MSA terms other than H & W asking the T/C to accept the MSA. The T/C resolved the personal prop. issues and said "your divorce is granted." The T/C didn’t approve the MSA. Apparently no decree was signed. On 7/3/03 (one day following the ct. hearing), H bought a lotto ticket and ultimately won $2,000,000. A year later W filed for a trial setting claiming that there was not a valid divorce rendition made on 7/2/03 thus the $2,000,000 was community property subject to division. H filed a motion to enter judgment (I assume H hired a new atty as his 1st one dropped the ball a year earlier) and the T/C signed the decree on 6/25/04. W appeals.

    Affirmed. The T/C rendered it judgment on 7/2/03. W argued that you can’t grant a divorce without dividing the property or making SAPC orders which the T/C never did. The CA agreed that this is the law; however, where there is a irrevocable MSA, there is no requirement for the T/C to find the MSA is "just and fair" or in the child’s "best interest" as the parties’ MSA is binding on the T/C. This is true even under the new amended §153.0071 (e-1) as no one raised the issue of "best interest" or family violence. When the T/C said "divorce is granted," it automatically included the MSA provisions into the divorce rendition.

    Comment - Talk about a day late and $2,000,000 short.

  3. In the Matter of the Marriage of Cain, No. 07-05-0399-CV, not yet published (CA, Ft. Worth).

    W filed for divorce and her atty H was served with citation. H didn’t file an answer so W obtained a default divorce and property division. H filed a MNT claiming insufficient evidence to support the T/C’s property division which was denied. H filed an appeal and then promptly died. H’s appeal requested that the case be remanded for re-trial.

    CA affirmed. Altho the Supremes in Dunn (439/830/2) and the El Paso CA in Turner (910/500/2) correctly state the law that the death of a spouse during the appeal of divorce property division doesn’t render the appeal moot if the divorce division significantly affects the deceased’s property rights, this property appeal is moot. H failed to file an inventory, he failed to file an answer and he didn’t request any fact findings on the property division. This being the case there is nothing in the record by which the CA can find that the T/C’s property division significantly affected his property rights.

    Comment - I’m not sure this opinion is correct as I can’t see how a non-participating deceased spouse could ever show that his property rights were significantly affected by the divorce division. Maybe that’s the law. You default and the property division is based on the surviving spouse’s property testimony, your death makes any appeal moot as you can never carry the significantly affected burden.