Houston Bar Association - Family Law Section

Gray's Interesting Cases for August 2005

Updated and presented by David Gray

Woods v. Woods, No. 07-03-0363-CV, not yet published (CA, Amarillo).
Divorce filed. W & H settled their differences and dictated their settlement agreement into the ct’s record. The T/C approved the settlement and advised the parties that the settlement terms would be incorporated into the final divorce decree. All of this was done 18 days after the initial divorce filing. In the approval hearing the T/C said he approved the settlement and granted the divorce “contingent on the expiration of the 60 day period.” Before the 60 days ran, W filed a notice that she withdrew from the settlement. After the 60 days ran, H’s atty filed a motion to enter judgment claiming that the T/C rendered judgment in the approval hearing. The T/C signed the submitted judgment. W appeals.

Reversed. Even tho the T/C said in the approval hearing he would sign a submitted decree, there was no rendition because the “rendition” was contingent on the passage of 60 days from filing. W has a perfect right to withdraw from any settlement (excluding an irrevocable MSA) prior to a rendition.

Comment - The long and short of it is that a T/C can not render a divorce judgment prior to the expiration of 60 days following the divorce filing even in Kountze (county seat of Hardin County). Duh!
In re: Watson, No. 2-05-169-CV, will not be published-- memo opinion (CA, Ft. Worth).
In the divorce decree H was ordered to pay W and/or her atty $31,000 in atty fees which were characterized as c/s as such atty fees were found to be necessaries for the support and protection of the parties’ children. No appeal filed. A year later W filed a contempt motion as H hadn’t paid the atty fees. The T/C held H in contempt and sentenced him to 6 mos. in jail and there to remain until he paid the atty fees.

H filed H/C which was granted. The T/C’s original order characterizing W’s atty fees as c/s was void as the F/C only authorizes a T/C to tax atty fees as c/s in an c/s enforcement action under §157.167. As the original divorce action was not a c/s enforcement action, that portion of the divorce decree saying that the atty fees were characterized as c/s is void and not enforceable by contempt (Roosth v. Daggett, 869/632/2).

Comment – Just another case to refute the contrary holding of the 14th CA in Hardin (161/14/3).
Peck v. Peck, No. 05-04-00919-CV, not yet published (CA, Dallas).
H & W divorced. As there was a young child of the marriage, the T/C enjoined both parties from “Permitting an unrelated adult of the opposite sex with whom either party has or might have an intimate/dating relationship to remain overnight in the same residence or temp. lodging while in possession of the child.” H appealed on the basis that such an order violates his const. rights absent a finding that he is an unfit parent plus there was insufficient evidence to support such injunction.

Affirmed. The T/C has the right to place restrictions on the child possessory rights of the parents that are in the child’s best interest. Altho there are no cases that directly require or prohibit such “no overnight” prohibitations, the T/C did not abuse its discretion in making such an order.

Comment - Altho the “no girlfriend/boyfriend overnight” provision is pretty standard in SAPCR decrees, here is a 1st impression case authorizing such a provision. Good law & reasoning. Of course you can wire around this by having lovers that are 17 or less or an adult who is a 4th or 5th cousin twice removed. Hmmmmmm. That might cause other problems tho.
Todd v. Todd, No. 2-04-328-CV, not yet published (CA, Ft. Worth).
In the divorce trial, W testified that she owned the subject 137 acres with a house on it prior to marriage. H testified several times about “her” house. No inventories were filed and no pre-trial discovery was conducted. No deed was ever introduced and there was no other evidence admitted concerning the character of the 137 acres. The T/C held that the 137 acres was W’s sep. prop. H appealed on the basis that there was no or insufficient evidence to overcome the community presumption.

The majority (Dauphinot & Walker) found that since H didn’t contest W’s statements, there was sufficient evidence of a clear and convincing nature to justify the sep. prop. finding. The dissent (Livingston) cited the Ft. Worth’s case of Boyd (131/605/3) which requires a tracing and documents to substantiate a sep. prop. claim.

Comment – Altho I don’t agree with Boyd, it’s so frustrating when not only do the various CA’s contradict each other but the various judges on the same CA contradict each other. Livingston was on the Boyd panel along w/ Walker and Cayce which would have reversed Todd. I can’t explain Walker as she was in the majority on both cases which conflict with each other. I know stare decisis is honored only in the legal dictionary these days but when you get a conflict in a single CA, one panel ought to have the courage to say “We don’t agree with our brethren in X opinion and refuse to adhere to its holding.” In baseball people don’t care if the plate umpire calls high, low, inside or outside strikes so long as he is consistent so everyone can adjust to his zone. Too bad judges can’t do the same so attys and T/C’s can adjust.
Salazar v. Green, No. 03-04-00595-CV, will not yet published– memo opinion (CA, Austin).
H & W divorced in ‘91 with A & B born during the marriage. Unfortunately only A was mentioned in the divorce decree. More than 4 yrs. later W asked the A.G. to sue to set c/s for B so H filed suit to disestablish his presumed paternity of B. W pleads that §160.607(a)’s 4 yr. S of L bars H’s suit. The T/C orders DNA testing which proves that H ain’t B’s daddy. H & W both filed for S/J. The trial court denies W’s and grants H’s. W appeals.

CA reverses. §160.607(b) says such a suit may be brought at anytime if: (1) H & W didn’t live together or engage in sex during the probable conception time and (2) H never represented to others that he was the child’s father. Since there was disputed S/J evidence on (1) & (2), the T/C erred in granting H’s S/J.

Comment – So why report on this case? Simply. Genetic on a child should never be done in these post 4-yr. disestablishment cases until the moving party satisfies the exceptions of §160.607(b). If H, et al can’t jump this hurdle, et al, it’s better to have the child with an untested presumed father than a presumed father who has been scientifically found not to be the kid’s biological father. Poor kid.
Sheshunoff v. Sheshunoff, No. 03-04-00395-CV, not yet published (CA, Austin).
Before the ‘71 marriage H & W signed a pre-nuptial agreement which was amended or superceded in ‘90 by a new agreement. In 2002 with the aid of various CPA’s, attys, et al, H & W signed a post-nuptial agreement purportedly for tax reasons whereby W got $48 million and H got a negative $12 million. 2 mos. after the post-nup was signed, shockingly W filed for divorce seeking enforcement of the post-nup. The procedural ins and outs of this case are rather complex and must be read to fully appreciate the CA’s opinion but basically here’s what happened. H plead as a defense what you and I would call the common law defenses – fraud in inducement, duress, breach of fiduciary duty, etc. W claimed that H can’t raise these defenses as §4.105(c) specifically says these common law defenses are prohibited as §4.105(a) outlines the only permissible defenses. W’s S/J is granted and H appeals.

The CA held that §4.105(a)(1) says the agreement isn’t valid if a party did not sign it voluntarily but there is no definition of “voluntarily.” The CA ruled that altho H’s common defenses are not defenses as such, the common defenses can be plead and proved as a part of the determination of “voluntariness.” The CA also said even if W had the subjective intent to divorce him before signing the new agreement (altho she said otherwise), this is not inducement fraud so long as H understood the terms and effect of the agreement he was about to sign, i.e. W’s lies don’t bear on the issue of “voluntariness.” T/C’s judgment is affirmed.

Comment – Seems to me that this case just muddles up pre- and post-nup law. Clearly §4.105(c) excludes common-law defenses as defenses to the validity of these agreements but now the Austin CA says you can plead these same defenses in respect to the issue of “voluntarily signed.” Pandora’s box just opened? Guess the Leg. will have to amend §4.105 again to chop off this snake’s head. One thing is sure– if you are involved in a pre-nup or post-nup case, Sheshunoff is a must reading.