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Gray's Interesting Cases for August, 2006

Updated and presented by David Gray
  1. In re: Parr, No. 01-05-01162-CV, not yet published (CA, Houston-1st).

    H & W divorced in H County in 2001 with H having custody of the parties’ kid and W paying $100/mo.c/s. According to W, she and H then moved back in together resuming their marital relations which continued until Oct. '03 when they again separated. W moved to M County while H remained in Ala. where the parties had been living. In April '05 W files for divorce in M County claiming she and H were common law married. In June ‘05 H filed a special appearance in M County and advised the T/C that he & W had already been divorced in H county in 2001. In July '05 H filed contempt in H County claiming W hadn’t paid any c/s since the 2001 divorce. In Oct. '05 the H County T/C held W in contempt & sentenced her to 90 days for 5 violations (apparently giving her credit for the time she and H lived together) but granted her probation with a compliance hearing in Dec.‘05. At the compliance hearing W asserted that the H County T/C no longer had juris. over the contempt matter due to the pending divorce in M County. The two T/C’s conferred and the H County T/C decided to go forward with the compliance hearing which resulted in the signing of a commitment putting W in jail for 90 days and there to remain until she did x, y or z. W filed H/C claiming that the commitment order was void because: (1) §155.201 says if there’s a ct. of continuing juris (SAPCR) and a later divorce suit is filed in another county, the original SAPCR suit must be transferred to the divorce suit county upon timely motion and (2) the T/C’s original contempt sentence was 90 days but the Dec. '05 commitment order added the phrase "there to remain until.."

    H/C denied. W’s attack on the commitment order was a collateral attack on the contempt order which can only be done if the original contempt order was void because of lack of juris. §155.201 is a venue statute (Leonard, 654/440/2). The H County T/C had juris. over W and the subject matter (c/s); therefore, failure to transfer made the commitment voidable, not void. As to the extra sentence (there to stay), the CA refused to rule on that because it was premature until W served the 90 day punitive sentence.

    Comment - I guess this is correct especially when you consider that W didn’t file her §155.201 motion prior to the Oct. '05 contempt hearing and sentencing. As to the additional coercive sentence, case law supports the CA’s decision but W probably has money problems in the first place and where’s she going to find the cash to hire an atty to challenge the coercive sentence after spending 90 days in jail.

  2. Rosales v. Rosales, No. 04-05-000906-CV, not yet published (CA, San Antonio).

    During the pending divorce, H & W reached a settlement which was read into the record. As usual the dictated settlement didn’t dot every "i" or cross every "t" but the T/C signed the judgment proposed by H. W appeals claiming that the T/C erred by varying the terms of the dictated settlement.

    CA reversed in part and affirmed in part holding:

    1. The decree awarded the child’s maternal g.p.’s visitation with the child but the settlement didn’t mention the g.p.’s. Reversed.
    2. The settlement made no mention of health care expenses relating to the child. The decree made “standard” provisions for health care insurance and payment of uninsured medical. Even tho the settlement was silent on this point, the F/C requires the T/C to make such health care provisions so the T/C didn’t err by including health provisions when the parties failed to do so. Affirmed.

  3. Binder v. Joe, 193 S.W.3d 29 (Houston- 1st, 2006, no writ hist.).

    H & W divorced in ‘87 with W being the M/C of the parties’ kid and H paying c/s as he was designated the P/C. Later W filed an enforcement suit against H for non-payment of c/s which was pending when H filed a modification suit to give him the power to determine the child’s primary residence and force W to pay c/s. W did not file an answer to H’s suit nor did she (or anyone else) set her enforcement suit for hearing. H appeared at a default hearing and the T/C granted H all he pled for plus: (1) removed W as M/C of the child and made H sole M/C; (2) found that W owed H $5,000 in retroactive c/s; and (3) found that H owed nothing to W for back c/s thus denying W’s enforcement action. W appealed.

    Reversed. H’s modification motion didn’t request that W be removed as sole M/C with H becoming sole M/C; it didn’t request retroactive c/s and nothing was mentioned of W’s c/s enforcement action. A T/C can’t grant relief which is not prayed for by the suing party.

    Comment - This certainly isn’t new law but it is a reminder to bench and bar that you can only grant the relief prayer for (or issues tried by consent). An elementary point of law that is often ignored in default cases.