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Gray's Interesting Cases for August, 2008

Updated and presented by Sallee S. Smyth
  1. In re Nash, 2008 Tex. App. LEXIS 4866 (Tex. App. – Amarillo June 30, 2008) (orig. proceeding) (Memorandum Opinion) (Cause No. 07-08-181-CV)

    F was ordered to pay child support at the rate of $250.00 per month. The AG initiated an enforcement action and F was held in contempt for the failure to make 4 separate payments. The court sentenced H to 180 days in jail for each violation to run concurrently. The court further ordered H to remain in jail until he paid over $45,000 in arrearages. After serving the criminal contempt portion of his sentence F was not released and filed a petition for HC in the trial court. F offered evidence that he made $6/hour as a cook working 12 hour days, had no bank accounts, no cash and no property to be sold and knew of no one from whom he could borrow money. The trial court denied relief and ordered F back to jail at which point F filed a petition for HC with the COA. F argues that his continued incarceration is illegal because he cannot pay the arrearage. The AG argues that because F offered no evidence to suggest he has attempted to borrow money, he has failed to meet his burden of establishing an inability to pay.

    The COA agrees finding the F’s evidence at best, conclusory, and denies HC relief.

  2. In re Burcie, 2008 Tex. App. LEXIS 5059 (Tex. App. – Fort Worth June 30, 2008) (Memorandum Opinion) (Cause No. 02-08-221-CV)

    M and F were divorced in 2004. F was ordered to pay child support of $865.10 on the first day of each month. In March 2008 M filed a motion to enforce alleging that F had failed to pay the full amount due on each of the payment dates set out in a chart that was contained in the motion to enforce. The chart contained columns for (1) due date; (2) amount due; (3) date paid; and (4) amount paid. The motion requested a finding of contempt for each violation. After a hearing the court found F in contempt and the order recited that he had failed to pay c/s as ordered in the amounts and on the dates “shown below” and the court pasted the chart from the motion into the order. The order found F in contempt for each separate failure to pay as ordered and that punishment for each separate violation was a fine of $500 and confinement in the county jail for 30 days to be served on weekends. F filed for HC relief complaining that the enforcement order is void because it fails to identify the dates of noncompliance, how many violations occurred, and whether the sentence for each violation was to run concurrently or consecutively.

    The COA noted that the chart reflects not only partial payment by F on some dates, it also shows payment by F of the full amount on some occasions and more than the full amount on others. The COA agreed with F because the chart does not specify which entry counts as a violation and as such there is no way to determine how many violations occurred for purposes of calculating F’s jail sentence or whether the sentences are to run concurrently or consecutively. Petition for HC granted.

  3. Bufkin v. Bufkin, 2008 Tex. App. LEXIS 4888 (Tex. App. – Dallas, July 1, 2008) (Cause No. 05-06-1719-CV)

    H and W married in 1987 after executing a premarital agreement which provided that all existing property would remain separate as would any property accumulated by either party during the first five years of marriage. Thereafter, the prenup terms provided for the creation of a community estate from all property accumulating from and after their 5th anniversary. H filed for divorce in 1996. H and W stipulated to the validity and enforceability of the prenuptial agreement. The trial court granted a series of partial summary judgments which declared certain items to be H’s separate property. Further, in a pre-trial ruling, the court found that the prenup terms characterized increases in the value of separate property as separate property, determined no community property existed other than personal assets, and incorporated the SJ and pre-trial rulings into a final decree. W appealed. (Bufkin v. Bufkin, 2003 Tex. App. LEXIS 9904, El Paso, 11.20.03, pet. denied).

    The El Paso court reversed and remanded determining that the increase in value of certain separate property stock accrued both before and after the 5th anniversary and could therefore be partially community in character and that this value was significant enough to have affected the overall division.

    On remand H and W both asserted claims for breach of contract and reimbursement. The case was tried to a jury. W asserted a Daubert challenge to H’s expert who appraised his ranch and the challenge was granted. After the verdict, both parties filed motions to disregard certain jury answers. The court granted in part and denied in part. Based on the verdict remaining, the court signed a second decree which awarded wife a money judgment for her share of the increase in value of certain separate property assets. The decree also awarded W $125K in prejudgment interest. Both parties’ perfected appeals from the second decree. H challenged exclusion of his expert witness.

    The COA determined there was no abuse because the appraiser had been asked to render an opinion on the value of the raw land, excluding the value of the timber, which was contrary to uniform standards. Further, the opinion relied on a third party appraisal of the timber and H failed to offer any evidence regarding the reliability of this appraisal. H also challenged the trial court’s exclusion of evidence of fault. The COA determined that because the parties’ had contracted to a division in their pre-nuptial agreement, fault provisions in the TFC were not applicable because they were not relevant. The COA reversed the award of pre-judgment interest. The COA held that pre-judgment interest may only be awarded based on an enabling statute or under general principles of equity. The current enabling statutes, Tex. Finance Code §§301.001 – 304.302, did not apply to this case and since W failed to plead for PJ interest, it could not be awarded to her under equitable principles. The remainder of the judgment was affirmed.

    Comment: It would be advisable to make sure your pleadings contain a request for prejudgment interest in any case in which you seek to recover monetary damages, including enforcement actions under Chapter 9 as well as claims for a monetary award in an original divorce proceeding.

  4. Pipes v. Pipes, 2008 Tex. App. LEXIS 5058 (Tex. App. – Fort Worth July 3, 2008) (Memorandum Opinion) (Cause No. 02-07-346-CV)

    H and W married in 1994. H had served in the military. In 2003 the VA determined that H had a service related disability leaving him unable to work. He began receiving disability benefits. In 2006 The parties separated and entered into an agreed decree which awarded spousal maintenance to W of $1,204 per month beginning in October 2006 and thereafter until the death of either party, W’s remarriage or October 2009. In 2007 H filed a motion to terminate the spousal maintenance claiming that the award had been based on his disability benefits contrary to TFC§8.055. At the hearing he claimed he could no longer afford to pay but offered no evidence as to why except to assert that his benefits had been recalculated and reduced because the W was no longer his dependent. The trial court denied H’s motion and he appealed. Shortly thereafter, W filed a motion to enforce which the court granted, ordering H to jail, granting an arrearage judgment and awarding fees. Thereafter the parties reached an agreement in which H acknowledged his ability to pay and his promise to continue to pay. W filed a motion to dismiss the appeal claiming the issues were rendered moot by the parties’ agreement.

    The COA determined that H’s agreement in the enforcement action was equivalent to the voluntary payment and satisfaction of an adverse judgment, mooting his appeal.

  5. In re Smith, 2008 Tex. App. LEXIS 4942 (Tex. App. – Houston [14th Dist.] July 3, 2008, orig. proceeding) (Cause No. 14-08-164-CV; Cause No. 14-08-282-CV)

    By an agreed order in 2006, paternal grandfather and his wife were appointed JMC of their grandchild. M and F were appointed possessory conservators and awarded limited access to the child. Because the suit originated as a CPS case, it was handled in a Harris County juvenile court instead of the family district court. After the order, GF would occasionally allow the child to visit with paternal GM who did not participate in the original proceedings. GF eventually stopped these visits over concerns for the child. Paternal GM brought a suit to modify seeking grandparent access and requested temporary orders. GF filed a motion to dismiss asserting that GM had no standing because she could not obtain relief under TFC§153.433 because her son had court-ordered access to the child. The associate judge denied the motion to dismiss and entered temporary orders awarding GM visitation and suspending the parent’s visits. GF filed an appeal to the presiding judge who denied GF a de novo hearing. GF filed two separate mandamus proceedings (which were ultimately consolidated). The first complained of the trial court’s refusal to grant a de novo hearing and the second complained of the decision on standing and the ruling on temporary orders.

    The COA noted that there is a distinct difference between the statute which requires de novo review from an associate judge’s ruling in family court (TFC§201.015) and the statute which makes review discretionary in juvenile court. (TGov’tC§54.697) Further, the COA found that TFC§153.433 does not affect a grandparent’s right to bring suit, even though it may effect their right to obtain substantive relief. The COA was unwilling to extend the parental presumption to the GF who was basically functioning in the capacity of a parent. Finally, the COA found that the GM’s limited and general testimony that awarding her possession would be in the child’s best interest was sufficient to support the temporary orders and mandamus was denied. Comment: It is noteworthy that litigants who find themselves addressing SAPCR issues in juvenile court are not afforded the same rights to a de novo appeal as litigants addressing the same issues in family district court. Equal protection claims were not asserted or addressed.

  6. In re Kubankin, 2008 Tex. App. LEXIS 5136 (Tex. App. – Waco July 9, 2008) (orig. proceeding) (Cause No. 10-08-202-CV)

    M and F were divorced in 2003 and appointed JMC’s of their children. For reasons not explained in the opinion, the parties’ apparently agreed to modify certain custody provisions every year thereafter with orders signed in 2004, 2005, 2006, 2007 and January 2008. The current order gives F the right of physical custody of one child, GMK, subject to M’s visitation. F lives in Ohio. M (a teacher) traveled to Ohio during her spring break to visit the children who were still in school. M claims that during her time with GMK, he discussed his desire to come back and live with her so she discussed this with F. He said he would think about it. M brought the children to Texas the following week during their spring break vacation. M sent F a proposed order for a change of custody which also required F to pay support. F responded that it all looked fine except for the child support. M returned the younger child back to Ohio but not GMK who she had enrolled in school based on F’s agreement to give her custody. F filed a habeas corpus for return of GMK. M argued that the court should deny habeas relief because F had agreed to give M custody and therefore this amounted to a voluntary relinquishment. The court denied relief finding that it would be best for the child to remain with M and that sending the child back to Ohio would significantly impair his physical and emotional development.

    The COA determined that the parties’ agreement to change custody was unenforceable until reduced to a written order, signed by the court. Further, the COA determined that voluntarily relinquishment must exist for at least 6 months which was not the case here. Finally, the COA stressed that a finding of significant impairment must be based on imminent danger and not on speculation and that the trial court erred in not granting HC relief to F.

  7. Fulmer v. Fulmer, 2008 Tex. App. LEXIS 5200 (Tex. App. – Fort Worth July 10, 2008) (Memorandum Opinion) (Cause No. 02-07-322-CV)

    H and W married in 2002 while working for the same employer. W filed for divorce in 2006 alleging insupportability. W filed an application for protective order about a month later alleging her fear of H based on past arguments and threats of violence. The court granted an ex parte protective order. H filed a counter petition alleging adultery along with a claim for intentional infliction of emotional distress (IIED). The IIED claim was based on his embarrassment and humiliation surrounding the protective order and the affects this ultimately had on his employment situation. At the hearing on the PO, W admitted she had never been physically harmed and had never called the police. W also admitted to having an affair with a co-worker. The court denied the protective order and dissolved the prior ex parte order. The divorce was tried to the court. The court awarded H $10,000 in damages for the IIED claim and $6,000 in attorneys fees. W appealed.

    The COA found that the evidence of emotional distress offered by H did not rise to the level of severity required by existing case law and that there was no evidence of the reasonableness or necessity of the fees. Both awards were reversed and the remainder of the judgment was affirmed.

  8. In re Marriage of Jordan, 2008 Tex. App. LEXIS 5383 (Tex. App. – Waco July 16, 2008) (Cause No. 10-07-210-CV)

    H filed for divorce and W filed a counter petition. W’s attorney withdrew and W failed to appear for trial. The court granted a default judgment. W filed a motion for new trial which was granted. W hired new counsel who participated in the second trial. W appealed from the decision reached in the second trial. Among other issues, W challenged the trial court’s decree which awarded the farm to her as part of the community property division. W had signed an earnest money contract for the purchase of the farm before marriage but title to the farm was formally conveyed during marriage. The trial court had pronounced the farm to be W’s separate property but it was awarded to her in the community property section of the decree rather than being confirmed to her as separate property in another section.

    The COA determined that this was error. Further, the COA analyzed the trial court’s treatment of an EC claim raised by H. As part of this claim, H alleged contribution by both the community estate and his separate estate to the W’s separate property farm. The COA noted that the formula for calculating EC as set forth in TFC §3.403 does not appear to take into account a scenario where two separate estates contribute to a third. By running various calculations, the court determined that strict application of the formula could not be correct because this would total more than 100%. Noting that it must generally apply the plain language of a statute, the COA stated that this was not required when it would reach an absurd result. The COA therefore held that when two distinct marital estates make an EC claim to a third marital estate, the amount of a claim for EC is calculated by including the sums of the economic contributions made by both of the contributing marital estates in the denominator of the formula established by TFC §3.403(b) and (b-1). The COA ultimately determined that H had not offered sufficient evidence for the court to exercise its proper discretion in making this calculation. The COA reversed and remanded for further proceedings, specifically noting that the figures used by the court in its analysis were not binding on the parties upon remand.

  9. Wilson v. Wilson, 2008 Tex. App. LEXIS 5324 (Tex. App. – Beaumont July 17, 2008) (Memorandum Opinion) (Cause No. 09-07-484-CV)

    H and W divorced in 2004. After divorce, the IRS refunded taxes in excess of $86K. H cashed the check and kept the money. W filed suit for post-divorce division of property, alleging fraud against H. One of W’s creditors, a bank, intervened. While suit was pending, H purchased the bank’s judgment against the W and then pled this as an offset. The trial court excluded evidence of the actual purchase price of the judgment as paid by H and used the judgment number as the amount of offset to be credited against the amount of the tax return eventually awarded to W. The court divided the refund evenly finding no fraud by H and W appealed. W contended that the court should have given her a greater share of the refund because of H’s conduct.

    The COA did not disturb the trial court’s finding deferring to its judgment of the credibility of the witnesses. W also challenged the amount of the offset, arguing that it should have been only the amount H paid to purchase the bank judgment instead of the full amount of the bank judgment. The COA determined that once H acquired the bank judgment, he became the judgment creditor and was entitled to enforcement of the judgment regardless of what he paid for it, noting that judgments can be offset against each other. The COA affirmed the trial court’s judgment.

  10. In the Interest of J.P.C., 2008 Tex. App. LEXIS 5352 (Tex. App. – Fort Worth July 17, 2008) (Cause No. 02-07-184-CV)

    H and W married and had one child. W filed for divorce and H went to live with his parents (the grandparents). Temporary orders appointed W as primary conservator and gave H standard visitation under supervision by the GP’s. A year later, H was diagnosed with a terminal illness and the proceedings came to a stop. H died a year later and his parents filed an original suit for access to the child who was then 5 years old. Judgment awarding possession to the GP’s was eventually rendered and signed when the child was 8 years old. W appealed challenging the sufficiency of the evidence to support an award of GP visitation.

    The COA analyzed the evidence and found that it was lacking. The COA held that the GP’s feelings about the effects on the child if visitation was not ordered was insufficient and that without proof that the child would actually suffer significant harm if visitation was not ordered, GP access should not be awarded. Judgment was reversed and rendered.

  11. Messina v. Messina, 2008 tex. App. LEXIS 5570 (Tex. App. – Houston [1st Dist.] July 24, 2008) (Memorandum Opinion) (Cause No. 01-07-277-CV)

    H and W divorced in 1999. The parties reached an agreement in mediation which was then incorporated into an AID. Several years later, W sued H for post divorce division of property claiming that H had concealed certain assets from her. H defaulted and W obtained an interlocutory default judgment and a “writ of inquiry.” H learned of the suit when W attempted to depose one of his business associates. He filed a motion to set aside the default and sought sanctions against W for a frivolous suit under TRCP Rule 13, requesting dismissal and fees. After a hearing the court granted the new trial but gave W additional time to conduct discovery before ruling on H’s motion for sanctions. Trial was set for several months later. A few days before trial W moved for a continuance. She had not answered discovery and not pursued depositions of her own. She attempted to notice the deposition of H’s bank and sought 20 years worth of bank records, but this notice was quashed and the continuance denied. On the day of trial W announced a non-suit of her claims. The court advised her that H’s sanctions claim would remain pending. The court declared that the W’s suit was not frivolous but dismissed her action with prejudice and awarded H $42K in attorneys fees. W appealed.

    The COA noted that dismissal with prejudice is an acceptable form of sanctions. Because W abandoned her claims, she clearly did not produce any evidence to support them. This, along with her failure to avail herself of the discovery process, warrants a presumption that her claims have no merit and therefore dismissal with prejudice was not an abuse of discretion. Further, because attorneys fees are recoverable under TFC §9.205 and W did not prevail on her claims, the court was within its discretion to award fees to H. Judgment was affirmed.

  12. In the Interest of S.R.B., 2008 Tex. App. LEXIS 5501 (Tex. App. – Houston [14th Dist.] July 24, 2008) (Cause No. 14-06-864-CV)

    The AG filed suit to establish parentage of two children. Regarding the child, TMT, the AG requested genetic testing. Regarding the child SRB the AG alleged that an Acknowledgment of Paternity (AOP) had been signed. Flowers, the alleged father of both children, did not appear. At the hearing, the children’s mother testified that Flowers was not SRB’s father even though he had signed the AOP. Based on this testimony the trial court declared the AOP invalid and signed an Adjudication of Non-Paternity. The AG timely filed a MNT which was denied and the AG appealed.

    The COA determined that TFC §§ 160.307 and 160.308 govern the process for rescinding or challenging an AOP. Under §307, a signatory may rescind by initiating a procedure within a specified period of time. In this case, by the time the mother (a signatory) testified that Flowers was not the father, the allotted time period had expired. Under §308, a signatory may challenge the AOP based on fraud, duress or material mistake. While this argument remained available, the COA held that the mother’s testimony was not sufficient to constitute a challenge to the AOP based on the available grounds. As a result, the COA determined that the trial court abused its discretion in declaring the AOP invalid and the matter was remanded.

  13. DeGroot v. DeGroot, 2008 Tex. App. LEXIS 5593 (Tex. App. – Dallas July 28, 2008) (Cause No. 05-07-305-CV)

    H and W entered into a written agreement which was incorporated into a divorce decree signed in July 2006. On the last day to timely file a post-judgment motion, H mailed a motion for clarification of the decree which was received and filed about 5 days later. Thereafter the parties filed a joint motion seeking referral to arbitration of their unresolved issues. W then filed a motion to enforce terms of the decree. At the end of arbitration the arbitrator issued an order which made revisions to the parties’ prior property division and granted W’s enforcement relief. H then filed a motion asking the court to set aside the July 2006 decree in favor of a new decree according to the arbitrator’s ruling. W filed a motion asking for review of the arbitrator’s rulings as well as a motion for entry of a QDRO. After a hearing the court denied W’s motion for QDRO and for enforcement as moot and signed a new decree in January 2007. W filed a MNT which was denied and thereafter appealed. W claimed the 2007 decree to be void based on the trial court’s loss of plenary power.

    The COA determined that H’s motion for clarification was a Chapter 9 motion because it did not seek a substantive change in the 2006 decree and therefore it could not be considered a motion to modify under TRCP 329b which would have otherwise extended the court’s plenary power. As a result, the court had no authority to enter the 2007 decree which was void. As a result, W’s motion for a QDRO to effectuate the 2006 decree and her motion to enforce the 2006 decree should not have been denied as moot. The COA vacated the 2007 decree, reinstated the 2006 decree, and remanded the QDRO and enforcement matters back to the trial court.

  14. In the Interest of C.S., A Child, 2008 Tex. App. LEXIS 5751 (Tex. App. – Waco July 30, 2008) (Cause No. 10-07-276-CV)

    15. After removal based on alleged child abuse, TDPRS placed the child with relative caregivers. The parties reached a mediated settlement appointing all parties as JMC and giving the relative caregivers primary rights. The court did not accept this and appointed the non-parents as JMC’s and the parents as PC”s. The court ordered visitation and support in accordance with the parties’ agreement. Four months later, M signed an affidavit of relinquishment. Seven months after the order was signed, F filed a motion to modify supported by affidavits and sought to be named a JMC and alleged that the order was not workable, generally alleged that the relative caregivers were alienating the child from him, and claimed that the relative caregivers did not have standing. In response JMC’s filed a motion to determine the sufficiency of F’s affidavits pursuant to TFC§156.102(c) (requiring allegations of endangerment or significant impairment). F argued that this amounted to a no-evidence MSJ and he claimed he was entitled to at least 21 days notice. The trial court disagreed, held a hearing and thereafter signed an order dismissing F’s suit with prejudice. F appealed.

    The COA determined that standing limitations under TFC §102.004 (within 3rd decree of consanguinity) did not apply to a relative care giver appointed custodian under TFC §262.114 and that they properly had standing as JMC”s. Regarding the notice issue, the COA determined that a party is not entitled to 21 days notice to respond to a dismissal motion filed under TFC §156.102(c). F also argued that the court erred in dismissing his suit because the JMC’s never complained about his MTM through special exceptions. The COA noted that TFC §156.102(c) is unique to the extent that the trial court may deny relief or dismiss suit altogether without any advance notice to the litigants based solely on a review of the pleadings. In this way, TFC §156.102(c) is similar to CPRC §§13.001 and 14.003 which permit dismissal of inmate suits without hearings and case law has held special exceptions inapplicable to these types of proceedings. The COA determined that this rule should likewise apply to dismissals under TFC §156.102(c). The COA ultimately determined that F’s affidavits were insufficient and therefore the trial court’s dismissal of his modification action was not an abuse of discretion. The COA did however modify the judgment to make the dismissal one “without prejudice” but otherwise affirmed the judgment.