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Gray's Interesting Cases for August, 2009

Updated and presented by Sallee S. Smyth
  1. Zamarripa v. Zamarripa, 2009 Tex. App. LEXIS 5122 (Tex. App. – Houston [14th Dist.] June 30, 2009) (Cause No. 14-08-0083-CV) (mem. opinion)

    H and W married in 1984. In 2003, H began receiving funds from his pension. H filed for divorce in 2005. Both H and W identified H’s pension as community property in their respective inventories. The parties reached a partial settlement and the terms of the MSA required H to produce copies of his current pension statements to W. W’s proposed property division suggested the ½ of the pension be awarded to her. H did not file a PPD. At trial, H testified that he began contributing to the pension 10 years before marriage. He further testified that he had paid his attorney with funds received from his pension which he did not consider to be community property although when his attorney characterized the retirement as “joint property” at trial, H did nothing to correct him. At trial W agreed that H began contributing to his pension 10 years before their marriage and that she considered the value of those 10 years to be H’s separate property. H did not provide W with the pension documentation as agreed. The trial court awarded W ½ of H’s pension and the QDRO recited that these benefits had accrued from 1970 to 2003. H did not challenge the overall division of property on appeal but instead complained only about the court’s decision to characterize his initial contributions to the pension as community property.

    On appeal the COA noted that both parties listed the pension as community on their respective inventories and that H did not specifically include any reference to separate property in his petition. Further H did not produce any documentation to corroborate his pre-marriage contributions or trace the value of those at the time of the marriage. Although W conceded that some portion of the pension was H’s separate property, it remained H’s burden to provide clear and convincing evidence as to the exact nature of that portion and the trial court was not required to speculate about it. H also tried to argue that TFC 3.007 provided a statutory method to characterize his separate property even in the absence of clear and convincing evidence however the COA determined that because H failed to present any evidence at trial that his pension was a “defined benefit plan,” H was not entitled to rely on the statute characterizing those types of benefits. Judgment affirmed.

  2. Nesbitt v. Nesbitt, 2009 Tex. App. LEXIS 5104 (Tex. App. – Austin July 1, 2009) (Cause No. 03-06-0025-CV) (mem. opinion)

    H was awarded certain property in the divorce and W wrongfully disposed of it. H was ordered to pay spousal maintenance in that same decree. H filed a contempt action against W and the court awarded H a judgment for $12K (the value of the lost property) and ordered that H’s obligation to pay spousal maintenance was reduced (or offset) until the amount of the judgment was fully paid. W appealed claiming that the prerequisites to modify spousal maintenance had not been met and further that because spousal maintenance is exempt personal property, it was not subject to offset.

    The COA held that the terms of the order relating to spousal maintenance were beyond the authority of the court in the absence of pleadings requesting this relief and because the statutory requirements for modification were not followed. The COA reversed that portion of the contempt order.

  3. O’Neal v. Forehand, 2009 Tex. App. LEXIS 5091 (Tex. App. –Corpus Christi July 2, 2009) (Cause No. 13-08-457-CV) (mem. opinion)

    H and W were divorced by an agreed decree entered in 1991. The decree provided for potential future conveyances to W of post-divorce working interests and overriding royalty interests acquired by H if they were acquired by H (1) at no cost; (2) for less than fair market value; or (3) for personal services. In 2006 W filed an action for breach of contract and fiduciary duty claiming that H had acquired mineral interests covered by the decree but not transferred to her. W paid a jury fee. H objected to the jury claiming that the suit was an enforcement action under TFC Chapter 9 and a jury was not permitted under TFC §9.005. The trial court agreed and removed the case from the jury docket. The trial court found that although certain mineral interests had been acquired after the divorce by a company owned partially H, none were acquired in a manner described in the decree and therefore W was not entitled to any recovery and awarded H attorneys fees. W appealed claiming that she was denied her right to a jury trial and challenging the court’s refusal to find in her favor.

    The COA held that when the case was called for trial before the bench, because W’s failed to inform the court that she intended to stand on her request for a jury, W failed to preserve error. Further the COA agreed that H had not acquired any mineral interests individually and therefore W was not entitled to an interest in those royalties acquired by H’s company under the terms of the decree. Judgment affirmed.

  4. Swim v. Swim, 2009 Tex. App. LEXIS 5200 (Tex. App. – Amarillo July 7, 2009) (Cause No. 07-08-268-CV)

    H and W married in 2005 and had a child in 2006. H filed for divorce in 2007 and the case was tried to the court. Evidence at trial established that H suffered from bi-polar disorder and drug abuse problems which had existed since his teens. H had been previously married and had primary custody of his child from that marriage. When the parties married, H was not taking any medication or attending any counseling. Shortly after the marriage H relapsed with his drug use but sought treatment. The evidence established that over the course of the marriage, H was not consistent in his treatment and not consistent with taking his medications. The court appointed the parties as JMC and designated W as primary. The court awarded H modified possession with the child between the ages of 3 and 5 and further provided that H was to continue treatment with a mental health provider who was required to file a report every 6 months and further H was ordered to attend AA/NA weekly and to take all proscribed medications. H appealed.

    The COA affirmed the orders for visitation based on the evidence of H’s mental health history and drug use. The COA recognized the trial court’s authority to order a party to continued counseling under TFC §153.010 and further that such an order would not have been an abuse of discretion in this case had it been made a condition of H’s possession and access. However, the orders in this case were not related to possession but were stand alone orders and the COA held that these orders deprived H of the protections afforded to incapacitated persons under Tex. Probate Code §§ 601-726, striking these portions of the order and remanding the case back to the trial court.

  5. Howell v. Howell, 2009 Tex. App. LEXIS 5238 (Tex. App. – Texarkana July 9, 2009) (Cause No. 06-09-0019-CV)

    The parties were divorced pursuant to an agreement. The decree awarded W 1/2 of the net value of the H’s 401k plan after subtracting an existing loan balance and provided an example of how W’s portion would be calculated using the existing balances as of the date of trial. The QDRO provided this same award but added language which provided that the amount awarded to W would be adjusted for earnings and losses from the valuation date to the date of distribution. At the time of the decree the net value of the plan was approximately $27,000. When the plan value decreased after the divorce, W challenged the terms of the QDRO on appeal arguing that the decree awarded her a specified sum, which was res judicata, and the QDRO impermissibly modified this amount.

    The COA held that the specific values referenced in the decree were for example purposes only and interpreted the decree as awarding W only ½ of the net value of the account. The COA found no discrepancy between the decree and the QDRO which was affirmed.

  6. Samford v. Samford, 2009 Tex. App. LEXIS 5293 (Tex. App. – Texarkana July 10, 2009) (Cause No. 06-08-0085-CV)

    H and W entered into a MSA and divorced in 2005. Despite their agreement, W appealed but was unsuccessful. H later filed a modification and because of W’s willful behavior in that proceeding, her pleadings were struck and H obtained a default.

    The COA reversed this decision finding that W was entitled to a trial. (241 S.W.3d 661). After trial the court modified the rights of the parties and awarded H attorneys fees. At some point, W filed a mandamus action seeking to force a jury trial but this was denied because the COA determined that since primary conservatorship was not at issue, a jury trial was not required. W actually perfected an appeal before the final order was signed however the COA deemed it to timely filed and proceeded to decide the case on the merits. W challenged the award of attorneys fees, arguing that a finding of “good cause” was required and that the evidence was insufficient to support the amount of fees awarded. W argued that a finding of “good cause” was required to award fees because H was not entitled to the underlying modification since he knew she was crazy before the original divorce, he did not establish any new mental impairment in the modification action, and because H was a family law attorney, he should have made sure that the original decree contained all the required provisions to guard against her bizarre and irrational behavior in the future. The COA held that a finding of good cause is required only when the fees are awarded to the non-prevailing party (TRCP 131) and because H obtained his requested modification no such finding was required in this case. The COA also found the evidence sufficient to support the amount of fees. Judgment affirmed.

  7. Church v. Quick, 2009 Tex. App. LEXIS 5362 (Tex. App. – Houston [14th Dist.] July 14, 2009) (Cause No. 14-08-131-CV) (mem. opinion)

    H and W were married in Ohio. H moved to Texas, lived for 6 months and filed for divorce. W filed for divorce in Ohio. Both parties were served. W filed a special appearance and a motion to dismiss. The trial court found that it has no personal jurisdiction over W but that it did have subject matter jurisdiction to grant a divorce, granting W’s special appearance but denying her motion to dismiss. W filed no answer subject to her special appearance. H and his attorney subsequently appeared for a prove-up and the trial court orally pronounced a divorce. H asked for no other relief and no other rulings were made. Thereafter H submitted a decree which recited findings of personal jurisdiction over the W, granted a divorce and further made findings that W was not entitled to spousal maintenance, recited terms which ordered how the parties were to file their tax returns and ordered each to pay their own fees as part of the division of the estate. W’s attorney filed several untimely post-judgment motions, all of which were denied. W filed a restricted appeal.

    On appeal, H argued that W waived her special appearance by making a general appearance in the appellate court to prosecute her appeal. The COA disagreed finding that this would only apply in cases where the issue was a lack of service or defective service, but not in a case where the court actually had no personal jurisdiction over the respondent. Further, the COA agreed that any terms of the decree which extended beyond the granting of a divorce were outside the court’s authority in the absence of personal jurisdiction over the W. The COA modified the decree to delete all orders except the divorce itself and then affirmed the decree as modified.

  8. In the Interest of D.T.C., 2009 Tex. App. LEXIS 5451 (Tex. App. – Beaumont July 16, 2009) (Cause No. 09-08-388-CV) (mem. opinion)

    H and W, both members of the US Army, were divorced in Kentucky in 2006. By agreement they were given joint custody of their only child with W as the primary physical custodian. Thereafter, H remarried and moved to Montgomery County, Texas. After divorce, W was transferred to Fort Bragg, NC where she and the child lived until she was deployed to Iraq in November 2006. The child came to Texas to live with H. In June 2007 W returned and filed a petition for writ of habeas corpus in Montgomery County seeking return of the child from H. H filed a motion to modify and the court issued temporary orders appointing H and W as temporary JMC, naming W as primary parent but ordering her to surrender the child to H if she was transferred or deployed outside the US and ordering H to surrender the child to W within 7 days of her demand for the child. W was again deployed to Iraq and the child return to Texas to live with H. The court signed new temporary orders containing these same provisions. Thereafter the parties entered into a temporary Rule 11 agreement providing that the child would remain with H for the balance of the school year and then return to W in North Carolina for the following school year. Despite these agreements, H filed a jury demand and issued discovery. The original trial setting was delayed several months. Before trial, W filed a motion to transfer or dismiss alleging (1) inconvenient forum under TFC §152.207; (2) unjustifiable conduct under TFC and (3) seeking abatement or dismissal under the Servicemembers Civil Relief Act. H filed a response. Neither party sought an evidentiary hearing but both provided the court with affidavits containing the information required by TFC §152.209. On the date of the pre-trial conference the court announced a ruling on W’s motion, declining to exercise jurisdiction in favor of North Carolina, abating the Texas action and ordering a suit to be commenced there by a date certain. H did not request findings of fact or conclusions of law. H appealed challenging the finding of inconvenient forum.

    The only reporter’s record before the COA was the 3 page transcript of the court’s ruling. Records from the prior hearings were not provided. H did not file a statement of points on appeal. The COA determined that in the face of a partial record, with no statement of points on appeal, the COA was entitled to presume that the missing parts of the record supported the trial court’s decision and the trial court’s order was affirmed.

  9. In the Interest of S.J.O.B.G., 2009 Tex. App. LEXIS 5449 (Tex. App. – Beaumont July 16, 2009) (Cause No. 09-08-160-CV)

    This case involves a Hague action between Child Welfare Services (CWS) of Norway and the mother of a 12 year old girl with severe juvenile rheumatoid arthritis. The facts of this case span over 7 years of moves back and forth by M and D, both independently and jointly, with their three children between Norway and Hawaii, until M ended up in Texas. Over these seven years the children lived and were educated in both Hawaii and Norway. The child the subject of the dispute was medically treated in both places. Doctors in Norway saw the child’s condition get progressively worse and M was unwilling to follow their directives for her treatment. Eventually CWS of Norway obtained an order transferring the child’s care and management to them and placing the child in foster care with her father who then resided in Norway. The order allowed M visitation. M appealed the order and while this appeal was pending she fled to Texas with the children. CWS of Norway filed a Hague action in the Texas court seeking return of the 12 year old to Norway for medical care. The Texas court found that Norway was not the child’s habitual residence, denied relief and awarded M attorneys fees. CWS appealed.

    The COA opinion offers a very detailed analysis of what factors must be considered in making a determination of habitual residence, eventually adopting the standard cited in Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005). First, the court should inquire into the shared intent of those entitled to fix the child’s residence at the latest time that their intent was shared, looking at both actions and declarations which are evidence of this intent. Second the court should inquire whether the evidence “unequivocally points” to the conclusion that the child has “acclimatized” to the new location and thus has acquired a new habitual residence, notwithstanding any conflict with the parent’s latest shared intent. Having determined that the parent’s latest shared intent was to live in Hawaii, and the evidence which established M’s intent to return there, the COA concluded that it was not an abuse of discretion for the trial court to have found that Norway was not the habitual residence of the child, thus eliminating the Hague Convention as authority over the proceedings. The COA also found that even though the Hague petition met some of the prerequisites to enforce a foreign order, CWS did not preserve error on this matter or on its comity argument because CWS did not specifically argue for this relief in the trial court. The COA set aside the award of attorneys fees to M finding that while the Hague statutes authorized an award of fees to a party successfully prosecuting such an action, there was no specific statutory authority for an award of fees to the who successfully defended against it.

  10. In re Villanueva, 2009 Tex. App. LEXIS 5480 (Tex. App. – Texarkana July 17, 2009) (Cause No. 06-09-0045-CV) (orig. proceeding)

    W filed for divorce with a SAPCR and also filed an affidavit of inability to pay costs. H signed a waiver which was filed with the court. Before the waiver was filed the trial court issued a sua sponte order appointing an ad litem and ordering a home study and providing that the parties would share the cost of the ad litem and the W would pay a reasonable fee for the home study. W objected to these orders. Without hearing evidence the trial court overruled the objection to the home study and abated the appointment of the ad litem, noting that if the W produced all the information necessary for the court to make a best interest decision, the objection to the ad litem would be sustained, but otherwise it would be overruled. The trial court noted that pro se litigants often successfully complete simple divorces but when children were involved, the court has no guarantee that proper evidence will be offered to assure the judgment protects the best interest of the children, noting that some parties’ directly conceal facts which bear on this issue. W brought a mandamus action pro se, arguing that the appointments could not be made in the absence of evidence that they were necessary and that since the custody issues are uncontested there is no need for the appointments especially in light of her inability to pay for them. In the mandamus proceeding the W argued that the trial court had no evidence before it demonstrating that the ad litem and social study were necessary. The trial court argued that the W’s pro se status made the orders necessary.

    The COA noted that because W’s claim of indigency was not challenged, she was indigent as a matter of law. The COA analyzed the balance between the court’s need to have the information it needed to determine best interest against the parents right of access to a forum where they can dissolve their marriage and arrange for custody of their children. The COA determined that the orders appointing the ad litem and order the social study, with requirements to pay costs, effectively denied W access to the divorce court in the face of her indigency status and was therefore an abuse of discretion. Mandamus granted.

  11. In the Interest of S.A.E. and M.B.E., 2009 Tex. App. LEXIS 5479 (Tex. App. – Texarkana July 17, 2009) (Cause No. 06-08-139-CV)

    H and W divorced in 2006 and were appointed JMC’s. H, on active duty in the military and stationed in Georgia, was given primary custody of the two children with the right to designate their residence in South Carolina due to an upcoming move. By agreement, the parties modified the decree to accommodate H’s schedule and the children were routinely driven between South Carolina and Georgia. W became aware that Texas would lose jurisdiction over the custody issue after 6 months if she did not return to live there. W made plans to take the children to Texas and when H discovered the plan he filed an emergency motion to prevent the move. The parties met at a police station in Georgia to decide who had the right to immediate possession of the children but W snuck away and came to Texas with the kids. W filed a motion to modify within one year and attached her supporting affidavit. She obtained a default which was later set aside and temporary orders were issued and a trial date was set. The case was tried and the court retained the appointment of JMC but designated W as the primary parent. No findings of fact were requested. H appealed, arguing that the trial court failed to apply TFC §156.102 (heightened burden of proof in cases brought to change custody within one year after order to be modified).

    The COA determined that TFC §156.102 did apply because the case was filed within one year even though the trial did not occur until after the one-year deadline. The COA distinguished this fact situation from other similar cases where the pleadings had actually been amended to assert the standard “material and substantial change” burden after the one-year anniversary passed. Because the evidence was conflicting, the COA ultimately held that the trial court was authorized to believe what it wanted and that based on the evidence presented the COA was not in a position to substitute their judgment ton the facts for that of the trial court. Judgment affirmed.

  12. Lai v. Wah, 2009 Tex. App. LEXIS 5531 (Tex. App. – Dallas July 21, 2009) (Cause No. 05-08-727-CV)

    H and W marry in Las Vegas. H is a US citizen born in Taiwan. W is not a US citizen. At the time of their marriage, they were living in China. They have two children both born in Singapore. In 2001 H took a job and the family moved to Plano, Texas and purchased a house. In 2004 H was promoted and the family moved to China and purchased a house there. The couple leased the Plano residence. The parties began experiencing marital difficulties in 2006. In 2008 H resigned his job, removed the children from school and brought them to the US without W’s consent. H filed for divorce and joined a SAPCR. The petition also asked the court to exercise emergency jurisdiction under the UCCJEA. W filed a special appearance, plea to the jurisdiction, request for court to decline jurisdiction and a motion to dismiss. During the hearing on these motions W also asked the court to exercise emergency jurisdiction awarding her immediate custody as well as their passports and belongings. She also asked the trial court to order H to return her green card and her jewelry. The trial court signed an order dismissing the suit, finding that neither H nor W met the residency requirements to pursue a divorce. The court also declined to exercise jurisdiction under TFC §152.208 (jurisdiction declined by reason of conduct) but then went on to award immediate custody of the children, their documents and belongings to W and ordered the return of her green card and jewelry. H filed an appeal and a mandamus action which were consolidated.

    The COA found that because there was conflicting evidence as to whether China or Texas was H’s domicile, the trial court did not abuse its discretion in finding that H had not met the residency requirements to maintain his divorce action. H argued that Texas was the most convenient forum however the COA noted that the trial court had declined jurisdiction under TFC §152.208 (bad conduct), not TFC §152.207 (inconvenient forum) and because H had not challenged this finding, it supported the trial court’s decision. The COA did however vacate those provisions awarding W immediate custody of the children finding that there was no evidence that these orders were necessary under TFC §152.204 (emergency jurisdiction) or authorized under TFC §152.208 (jurisdiction declined by reason of conduct). Order dismissing divorce affirmed.