Houston Bar Association - Family Law Section

Gray's Interesting Cases for August 2004

Updated and presented by David Gray

Preface: As you who are physically attending the August luncheon are well aware, I am not present. I'm in Waco, Texas, calling balls and strikes at the Little League Southwestern Region Tournament to determine which team from Texas, Louisiana, Mississippi, Oklahoma, Arkansas or Colorado goes to the World Series in Williamsport, PA. Looking forward to the September meeting, you will not receive a copy of this rag as I will be in Williamsport from August 18th to the 30th which gives me one day to read, analyze and write on all the cases for the September issue. If you think I'm going to be doing that while at the World Series, think again. We'll catch up in October so expect a lengthy issue. If you wish to view my smiling face tune into ESPN or ESPN2 as those T.V. networks televise every World Series game from August 20th thru August 28th. ABC does the final game on August 29th. I won't know what games I'll be officiating (including the final) but I'll call a bunch of them. Sure hope I don't blow a call on national T.V. C nah -- never happens

In re: Forlenza, 47 Tex. Sup. Ct. J. 39B.
H&W divorced in Tex. in '96 with H having custody of the kids. H immediately moved out of Tex. for employment reasons with the kids in tow. H & the kids lived in 4 different states over the last 5 yrs. but wife always remained in Texas. The kids visited W in Texas 6 times (no visit lasting over 30 days) but W went to where the kids were 14 times (H didn't want the kids flying to see W). W had a close relationship with the kids even tho she didn't see them that much. In '01 W filed suit to modify her visitation rights (probably caused by H's impending move to Taiwan). H filed an objection to the Tex. T/C juris. claiming that under §153.202(a)(1) there was no significant connection with Tex. nor was there any substantial evidence in Tex. regarding the kids' welfare as they hadn't lived in Tex. for over 5 years. T/C denied H's objection but the CA reversed.

Supremes reverse & hold that 6 visits to Tex. over 5 years plus W's continuous close relationship with the kids was enough connection with Tex. to retain juris. here per the UCCJEA.
Vasquez v. Vasquez, No. 13-03-00299-CV, will not be published-- memo opinion (CA, Corpus Christi).
H & W separated and W moved to Iowa with the parties' kid. H filed suit for divorce and custody. When W didn't appear the T/C granted a default divorce & custody to H. W files an appeal claiming that the judgment was void as she was never served with citation and did not otherwise appear. Seems that H attempted to serve W by CM:RRR but the green slip wasn't signed by W. H also attempted to serve W in Iowa & the citation return was signed by an officer but his signature wasn't notarized (TRCP 108).

Judgment reversed. Comment -- Just another example of an atty and the T/C being lackadaisical because it was a default. Although the decree recited that W was properly served, the record didn't support that finding. An interesting quote, "...the trial judge has the mandatory duty to determine that the defendant was duly served with citation and has no answer on file."
In re Estes, No. 07-04-0284-CV, not yet published (CA, Amarillo).
W & kids moved to Neb in May '03 while H served his jail time for some unspecific crime. When H got out of jail (Feb. '04) he filed for divorce and custody of the kids. W was duly served but didn't appear for the temp. hearing. T/C awarded H temp. custody of the kids. H then went to Neb. and picked up the kids. After being hit between the eyes with a 2 x 4, W hired attys and filed for divorce in Neb. plus a plea to the juris. in Tex. claiming that Neb. was the kids' new home state (she and the kids had been in Neb. for 10 mos. when H filed for divorce). H responded by amending his pleadings to additionally plea that since the kids were now in Tex, the T/C had juris. to issue emergency temp. orders governing the kid's welfare per §152.204.

The T/C denied W's juris. plea and continued the temp. orders giving H temp. custody. The T/C refused to pass on H's §152.204 request. W files for mandamus requesting dismissal of H's SAPCR as the T/C has no juris.

CA grants the mandamus in part. Without going thru all the evidence outlined in the opinion, W clearly had permanently moved to Neb. thus it was the kids' new home state at the time of H's SAPCR filing thus the T/C had no juris. to decide SAPCR matters in the Tex. divorce suit. HOWEVER read on. As to H's claim for emergency temp. SAPCR orders per §152.204(a), since the kids are in Texas and have been for the last 5 mos., the T/C does have juris to issue emergency temp. SAPCR orders if the T/C finds that an emergency exists and such orders are necessary to protect the kids from abuse, etc. The matter is returned to the T/C to determine if such an emergency exists.

Comment - Strange case and result. Even if H wins on the emergency issue, the T/C can't issue long term temp. orders so ultimately the kids are heading back to Neb.
In the Interest of M.C.C., No. 2-02-366-CV, not yet published (CA, Ft. Worth).
H & W divorced in '93 with H being ordered to pay c/s which he didn't do. In Dec. '01 the beloved A.G. filed an enforcement action request a $ judgment against H for the principal am't of $15,000 in unpaid c/s plus interest of $28,000 which was calculated at 12%. The T/C calculated the interest at 6% as the May '01 enabling amendment to §157.265 says unpaid c/s bears interest at 6% on all c/s coming due prior to 1/1/02 for which a ct has not confirmed the am't due. Since the AG didn't file suit early enough to have the arrearage confirmed prior to that date, all accrued c/s bears 6% interest. The A.G. appeals claiming that the enabling provisions violate the Tex. Const., conflict with various other provisions of the F/C and violate various provisions of the federal social security act.

In a well written and reasoned opinion, the CA rejects all of the A.G.'s arguments and affirms the T/C's ruling that if unpaid c/s is not confirmed by judgment prior to 1/1/02, the interest on such c/s is calculated at 6%, not the crushing 12% rate espoused by our noble A.G. The Ft. Worth CA also refused to follow the contrary ruling by the Dallas CA in A.R.J.(97/833/3) which I suggested should be ignored in Feb. 03. Additionally the CA rejected the Amarillo CA reasoning in Hurd (2003 WL 1961142) which also refused to follow A.J.R. but confirmed the 12% interest using the twisted reasoning that unpaid c/s is a final judgment bearing interest at the rate existing at the time each c/s installment came due (an illogical result criticized by me in June '03).

Comment - Kuddos to the Ft. Worth CA for correctly applying the law even tho it's contrary to the A.G. zealots. If the A.G. in your case insists on 12% on unconfirmed c/s coming due prior to 1/1/02, please file for sanctions per C.F.Jr., (memo opinion, No. 04-03-00383-CV) and A.C.B. (103/570/3) and hopefully the T/C will impose a substantial punitive sanction.
Ross v. Ross, No. 03-03-00351-CV, will not be published -- memo opinion (CA, Austin).
H & W divorced in '02 after a custody battle. The T/C awarded W and/or her atty. $31,000 in atty fees as a judgment against H after finding such fees were necessarily incurred as support for W and the kids. Later W filed a motion to enforce the atty. fee judgment. The T/C found that the $31,000 judgment was not specific enough to enforce by contempt so he "clarified" by finding that $15,500 of the atty. judgment was necessary for the kids' support thus that portion of the $31,000 judgment was enforceable by jail time contempt.

H appeals and the CA reversed. Atty fees incurred in an initial divorce proceeding (as opposed to a c/s enforcement proceeding) can not be classified as c/s and enforced by contempt.

Comment - Here we go again. Last month the 14th CA in Hardin held that atty. fees that have a relationship to the needs of a child can be classified and enforced as c/s. The weight of case law supports the Austin CA holding but now there are cases on each side of the issue. Sure wish the Supremes would answer this question but it=s only a family law issue so why should they care?