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Gray's Interesting Cases for September 2005

Updated and presented by David Gray
  1. In the Interest of J.A.T., No. 13-04-00477-CV, will not be published -- memo opinion (CA, Corpus Christi).

    At the beginning of a visitation period, H attempted to take the physical possession of the parties’ child from W. A scuffle ensued. W filed for a protective order which was issued. H appealed and the CA reversed. Assuming the scuffle rose to the level of “family violence,” there was no evidence that such violence was “likely to occur in the future.”

    As W failed to sustain her B of P, case reversed & rendered.

    Comment - Although the T/C’s are so liberal in issuing protective orders, they shouldn’t be unless the 2nd element (likelihood of recurrence) is proven.

  2. In the Interest of J. I. Z., No. 13-04-066-CV, not yet published (CA, Corpus Christi).

    In ‘96 M was adjudicated to be the child’s bio. father and was ordered to pay c/s. In 2002 DNA testing proved that M was not the child’s father. Recognizing that a B of R to set aside the paternity judgment was doomed to failure, M filed a motion to reduce his c/s attaching thereto the DNA test results. T/C granted M’s motion & reduced his c/s to zero. The A.G. appeals.

    Reversed. Proof that an adjudicated father is not the bio. father of a child is not a basis for terminating the father’s c/s obligation.

    Comment – M’s atty. tried to skin this paternity cat another way as a B of R won’t work but this imaginative tactic failed. Nice try tho. Gosh, it must be terrible to have to pay c/s for a kid that belongs to a traveling salesman.

  3. Moyer v. Moyer, (CA, Austin)

    Part I- No. 03-03-00751-CV, will not be published -- memo opinion. H & W married in ‘91 and shortly thereafter H commenced physically and emotionally beating wife (see extensive details in the opinion). In 2000 W filed for divorce and also sued H for damages for intentional infliction of emotional distress (IIED). The jury awarded W on the IIED claim $908,000 for actual damages and $875,000 for punitive damages. To no one’s surprise, H appealed.

    CA affirmed. H argued that W’s real C/A was for assault & battery, not IIED, but she didn’t submit an assault issue to the jury. You can’t disguise an assault claim by calling it IIED (Zeltwanger, 144/438/3). CA said O.K. but H didn’t raise this issue before the T/C so he has waived it. H also argued that the T/C should have given an instruction to the jury that they couldn’t consider any “injuries” suffered by wife which occurred more that 2 yrs prior to W’s suit filing as there is a 2 yr S of L on IIED claims. CA rejected this argument acknowledging that the issue of when the S of L begins to run has not been decided by the Supremes. The Austin CA opinion in Twyman (790/819/2) says that IIED is a “continuing tort” so that the 2 yr S of L starts after the last act of IIED. Austin recognizes that the Supremes have said in Jackson (157/814/3) that they have reserved judgment on the concept of “continuing tort” as they have not endorsed or addressed such concept; however, until such time as the Supremes reject such concept, it’s good in Austin.

    Comment – Should you have to defend against a IIED claim, this case gives you a lot of defenses you might wish to plead.

    Part II- No. 03-04-00444-CV, not yet published. After the T/C signed the $1.783 million judgment in Part I, W filed for a turnover receiver which the T/C granted. The T/C appointed X as the turnover receiver; appointed him as a Rule 171 Master In Chancery; ordered H to turnover a laundry list of documents, etc. to the receiver; and set the receiver’s fee at not less than 25% of all of the proceeds collected. H appeals.

    CA reversed holding:

    1. The T/C erred in ordering the laundry list as such receiverships have to have specificity. Comment – This is no longer true as the turnover receivership statute has been amended since this case eliminating the specificity requirement.
    2. The T/C erred in setting a percentage compensation for the receiver as such compensation is determined by the value of the receiver’s services including the results accomplished. Add’lly prior to a final accounting a receiver can only receive an interim fee which is less than a final fee. Establishing a fixed final percentage fee at the beginning of a receivership can be unfair to either side of the question.
    3. The CA refused to address the Master question as they found such an appointment is interlocutory not subject to appeal. Comment – Personally, I believe such an appointment is not valid unless you can show that this is an “exceptional” case which it isn’t. Prior case law says there must be proof of “exceptional” or the order is voidable upon the filing of a mandamus.

    General Comment on Part II – Last month we had a speaker who spoke on the subject of turnover receiverships and gave us forms virtually identical with the orders in Moyer. If you want to use these forms, you might want to consult with the author of these forms in light of this case’s holdings.

  4. In the Interest of K.A.R., No. 14-03-00970-CV, not yet published (CA, Houston-14th).

    H & W were divorced in Galveston in ‘93 with W being the sole M/C of the parties’ kid. In 2002 H filed a motion to modify to make him a JMC with the power to determine domicile. The T/C entered temp. orders denying H’s temp. requests but ordered the parties and their attys to “appear and participate” in mediation on March 31st with a named mediator. Trial set for April 7th. On March 20th H told W he was considering dismissing his suit. On the same day, H faxed his atty (C) stating he wanted to “drop” the case and asked that “all parties immediately cease and desist all actions.” On March 24th W’s atty (Ted Terry of Austin) called C to advise her of H’s March 20th comment about possible dismissal with the intent to save the parties further legal fees, etc. if this was H’s true intent. C told Ted that she hadn’t talked to H but she would call Ted back the next day. (True C hadn’t talked with H– she had only received written instructions to “drop” the case – can you say sleazy?) On March 26th C called Ted’s office and left the message she still hadn’t talked to H and didn’t anticipate talking to him until the March 31st mediation. (Again C failed to mention H’s March 20th fax). On March 28th Ted filed a C/C requesting add’l restrictions on H’s visitations with his child plus atty fees, etc. After the C/C was filed, C did talk with H and advised him to attend the March 31st mediation; the effect of the C/C; and advised him not to dismiss his suit. On Sunday, March 30th, H & C talked again and H steadfastly refused to attend the March 31st mediation. C then faxed Ted (Sunday noon) saying she was non-suiting H’s suit and she and H were not attending the court ordered mediation– C also sent similar faxes to the child’s ad litem and the mediator. (Of course Ted was already in Houston preparing for the next-day mediation). C then filed H’s notice of non-suit. Neither H nor C showed for the March 31st mediation. On April 1st C filed a motion to withdraw and attached H’s March 20th “drop suit” letter. On April 3rd W filed a motion for sanctions against H & C which was set for hearing on April 7th along with W’s C/C. On April 4th H filed a motion for continuance claiming C was set for trial in 2 cases in Houston. Neither H nor C appeared for the April 7th trial and sanction hearing. C’s motion to withdraw hadn’t been heard so she was still H’s atty as of April 7th. On April 7th the T/C denied H’s motion for continuance; granted W all that she asked for in her C/C including $37,000 in atty fees; and sanctioned both H & C for $13,000. H committed suicide on April 27th. C and H appealed. CA affirmed after deleting that portion of the judgment classifying the atty fees and sanctions as c/s. There’s an interesting discussion about why C being in trial in Houston wasn’t grounds for a continuance but it’s only of interest to Houston area atty’s.

    The CA found that the T/C had the inherent power to sanction C as her failure to appear at the mediation when she was ordered to do so (even sans her client) interfered with the T/C’s core function thus the T/C could levy a just and appropriate sanction against C. C didn’t have the right to arbitrarily ignore the T/C’s mediation order. The dissent says that the T/C’s inherent power to impose sanctions is limited and such sanctions should be used sparingly. Comment– If you have a ct. order directing you to attend mediation, you had better attend or face possible sanctions. If you can’t attend, read this case for the various ways you might avoid such sanctions. I suspect that C’s concealment of H’s March 20th letter and her jacking around of an out-of-town atty played a big part in the CA’s affirmance.

  5. In the Interest of L. M. M. and S. D. M., No. 03-04-00452-CV, not yet published (CA, Austin).

    H & W divorced in ‘94 with 2 kids. H & W were appointed JMC with H having domiciliary designation rights and W having a SPO. Over the ensuing years H & W continued their contentious divorce by using the kids to batter the other parent to the extent that H, W & the kids had their own shrinks. The kids were totally messed up. In ‘03 W filed a motion to change custody seeking sole M/C and her parents intervened also seeking custody. The original ad litem was reappointed to represent the kids. After hearing 7 days of evidence, the T/C rendered an order maintaining the JMC with H as the primary parent but modified W’s visitation. W’s parents’ custody request was denied. W’s new visitation rights were conditioned upon her continuing to receive therapy from her shrink. If W did so then upon certain dates W’s visitation rights were to increase ultimately becoming a SPO. However, if W’s shrink and the kids’ shrink agreed in writing that any stair stepped visitation increase wasn’t in the kids’ best interest, such increased visitation would not occur. The T/C also awarded H’s atty $20,000 in fees and the ad litem $15,000 in fees and taxed them against W and her parents jointly and severally. There was no segregation of these fees, i.e., how much was attributable to W’s suit & how much to the grandparent intervention. W and the grandparents appeal.

    In respect to these issues, the CA affirms holding:

    In respect to W’s claims that this order allows 3rd parties to terminate her visitations, the T/C did not abuse its discretion or violate W’s const. rights by imposing these restrictions on W because (a) the shrinks must agree in writing (b) the shrinks’ denials of visitation is limited to denying each stair step and (c) the shrinks can only deny possession, not access.

    Comment – Baloney! Any person who has a single drop of common sense knows that the shrinks, not the court, control W’s visitation rights. Good Grief.

    In respect to W’s complaint that the T/C has impermissibly delegated authority over W’s visitation rights to a bunch of shrinks, the CA found that there is no case law saying that T/C’s can’t do this. All the cases prohibiting orders where one parent has the discretionary power to deny visitation to the other parent (Hill, 404/643/2; Wright, 749/2/228; Rooth, 889/2/452; and A.P.S., 54/498/3) are not in point. In those cases, the adversial party was erroneously granted this authority whereas here the shrinks are presumably neutral.

    Comment – I guess the T/C wasn’t neutral enough so the T/C delegated its neutrality to some shrinks. Delegation of the authority to a 3rd party to determine “fair and reasonable” costs was prohibited in Grossnickle (115/238/3) but maybe Hockaday expenses are more important than a parent’s involvement in her kids’ lives.

    As to the failure to segregate fees in respect to the grandparents, they didn’t make any objection to not segregating so this complaint is waived. Besides this, Garner, (673/413/2) says that when non-parents intervene in SAPCR suits, they are subject to having atty fees assessed against them with no requirement to segregate.

    As far as the grandparents’ complaint that the ad litem fees can’t be taxed against them as they did nothing to compel the ad litem’s appointment or continued involvement, when they requested custody, that request necessitated an ad litem and certainly caused the ad litem to spend time in respect to such request. The grandparents’ reliance on Minns (615/893/2) is misplaced as the Minns C/A denied ad litem fees against the intervening grandparents because she succeeded in her suit whereas here the grandparents failed to gain custody. Comment – Horse feathers. The CA totally misread Minns which denied such fees because Rule 131 allows a successful party to recover fees against his “adversary” and a grandparent intervenor is not an “adversary.” The CA also totally ignored §107.015(a) which says an ad litem’s fee can only be taxed against the parents of the child unless they are indigent.

    The concurring opinion finds that the T/C’s judgment was based on the preponderance of the evidence which was approved by the majority. However, due to W’s constitutionally protected parental rights, the concurring justice believes that standard should be clear and convincing which he found to exist in this case, thus the concurrence.

    General Comment – What do you expect from an appellate court that sits in a city where its residents wear t-shirts proclaiming “Keep Austin Weird”?