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Gray's Interesting Cases for September, 2006

Updated and presented by David Gray
  1. McCollough v. McCollough, No. 03-05-00558-CV, not yet published (CA, Austin).

    H & W signed an AID in their divorce action which provided for $5,000/mo. contractual alimony to W for 10 yrs. The alimony provisions of the AID were incorporated into the decree and there was decretal language saying "It is ordered that each party shall do all things necessary to effectuate the agreement." H fell on to hard times and filed suit to modify the alimony claiming that is was ct. ordered "maintenance" subject to modification by the ct. The T/C granted s/j to W. H appeals.

    The CA found that the issue was "Is this contractual or ct. ordered?" When interpreting a divorce decree you are to consider the decree as a whole and give effect to all that is written. The ct’s use of the word "order" is not alone dispositive. Here the decree speaks of "contractual alimony"; the "alimony" is more than 3 yrs; it is more than $2,000/mo., all in violation of §8.054 & §8.055; there is no use of the term "maintenance"; and the decree itself acknowledges that the agreement is to be enforced as a contract as it is intended to provide for "contractual alimony." This decree is a contract not subject to ct. modification.

    Comment - Good reasoning and a correct result. However, remember never use decretal language in a decree which incorporates contractual alimony as it just confuses some cts. like it did in Taylor (130/448/3).

  2. Huey v. Huey, No. 05-04-01452, not yet published (CA, Dallas).

    H & W divorced with W being a JMC having the right to determine the kids’ residence; however, such residence was restricted to Collin County or a county contiguous thereto. After the divorce W moved to Howard County in violation of the residential restriction. Much later (more than 6 mos.), H filed a motion to modify custody. W filed a timely motion to transfer correctly stating she and the kids had resided in Howard County for more than 6 mos. T/C denied W’s transfer request. W appeals.

    The CA affirmed. When W moved the kids in violation of the ct.’s residential restriction, she "waives and forfeits" her right per §155.204 to transfer the later filed SAPCR action even though the kids resided in the new county for more than 6 mos. To grant the requested transfer would condone W’s intentional violation of the ct.’s order and would encourage forum shopping.

    Comment – WOW! This is the first time a CA has held this way. Correctly I believe. I wonder what would happen if W had asked and received H’s permission to move to Howard County and H did nothing for 5 years? The parties can’t modify c/s by agreement so maybe H’s permission doesn’t change a thing as the parties can’t modify the ct.’s order by private agreement.

  3. Hipolito v. Hipolito, No. 05-05-01553-CV, not yet published (CA, Dallas).

    H & W were married less than 10 yrs. at the time divorce was filed but more than 10 yrs. at time of trial. The T/C awarded W spousal maintenance of $1,000/mo. for 12 mos. and $800/mo. for an additional 6 mos. H appeals claiming that the T/C had no authority to award maintenance.

    CA affirms. The 10 yr. period in §8.051(2) is determined as of date of trial, not date of separation or filing.

    Comment – This again is the 1st time we have a written opinion on this point. Altho the CA doesn’t say it specifically, I believe the 10 yr. period is determined as of date of divorce rendition, not date of trial. There could be a significant time difference between these two dates.

  4. Love v. Love, No. 01-04-00564-CV, not yet published (CA, Houston-1st).

    Prior to marriage W incurred several student loan debts, the proceeds of which were used by H to improve his business. Later the parties married. Upon divorce H was apparently awarded the business (his sep. prop.) but he was ordered to pay the balance of W’s student loan debts.

    H appeals and the CA reverses. Separate debts are similar to separate property. If you can’t award a spouse’s separate property to the other spouse, you can’t award a spouse’s separate debt to the other spouse.

    Comment – Once again a case that correctly resolves an issue where there hasn’t been any case law altho we have always thought this was the law. Since H’s sep. prop. benefitted from the creation of W’s sep. debt, I can see why the T/C did what it did. Maybe upon remand, to try and do some justice, the T/C can take this into consideration in awarding W a higher percentage of the parties’ community estate assuming there is one or an owelty judgment.

  5. In the Interest of K.I.A., No. 11-05-00169-CV, not yet published (CA, Eastland).

    Before and some years after the birth of M’s child, M lead F to believe he was the father of her child. After the birth F filed suit seeking to be named a JMC of the child. M then denied F’s paternity and DNA tests proved her to be correct. F also filed a motion for sanctions against M for lying to him about paternity and requested a monetary sanction for the $2,500 he spent on the child’s welfare. The T/C dismissed F’s SAPCR as he wasn’t the father but "sanctioned" M $1,750 for the c/s F paid to her prior to the DNA results. F appeals on the basis that the T/C had no juris. to even hear F’s SAPCR less say the sanction motion.

    CA affirms finding that the T/C’s "sanction" order wasn’t void as the T/C did have SAPCR juris.

    Comment – Why report on this case? 'Cause someone gonna read it and think that a T/C has the right to monetarily sanction a party to a suit for conduct occurring prior to the suit being filed. No, No, and No! A sanction can only be impassed under the TRCP for wrongful conduct relating to a pending suit (Rule 13, Rule 215-A, etc). Altho the Eastland CA has previously affirmed a no authority sanction, I’ll give them the benefit of the doubt here as M’s appellate point was based on lack of juris., not that the TRCP doesn’t authorize such a sanction- a point obviously ignored by the T/C.

  6. In the Matter of the Marriage of Eilers, No. 10-05-00290-CV, not yet published (CA, Waco).

    H & W had 2 kids. In 2002, while in Ariz., they met a mother who didn’t want her child. The mother, H & W signed a "power of atty" where by the mother designated H & W as the child’s custodians with all the powers of a parent plus the obligation to financially support the child until age 18 or the child is adopted. H & W returned to Texas and treated the 3rd child as their own. Sometime later W filed for divorce stating that 3 kids were born during the marriage. H denied paternity of the 3rd child which was not contested by W. W plead that H had equitably adopted the 3rd child and he had "contractually agreed" to pay c/s for the 3rd kid. The T/C ordered H to pay c/s for all 3 kids. H appeals.

    CA modifies and affirms. As much as people try, there is no "equitable adoption" in Texas family law. This is a probate concept that doesn’t apply in the family law matters. However, since H had signed the "power of atty" to financially support the 3rd child, he was "contractually obligated" to financially support the 3rd child under a theory of "implied contract." (If H had signed the written "power of atty", why wasn’t this an express contract?) Unfortunately this "implied contract" was ambiguous in that it didn’t state the amount of H’s c/s obligation. A T/C can supply a reasonable amount if a contract is silent or ambiguous as to amount. Since the F/C presumes the c/s guidelines are reasonable, the T/C didn’t abuse it’s discretion in setting H’s contractual obligation to the 3rd child as the amount calculated under the F/G c/s guidelines. However since H’s c/s obligation is contractual, the T/C’s c/s order is modified to show that H’s c/s obligation to the 3rd kid is contractual and only enforceable as a debt. The T/C set c/s for 3 kids at $1,321 (30% of H’s net resources) but only 2 kids are entitled to ct. ordered c/s so c/s for these 2 kids should be $1,101 (25%). The balance ($220) is H’s contractual c/s which is payable until the 3rd kid reaches 18.

    Comment - If H’s contractual obligation is determined by the F/C, why doesn’t the $220/mo. fluctuate with the 1st 2 kids reaching 18 or H’s net resources increasing. I guess since the T/C established H’s contractual c/s at time of trial, it never varies from the original am’t. If H breached his contractual obligation to support the 3rd kid, how an the T/C find as a remedy or damages an order to pay $220/mo. until age 18 rather than a monetary judgment for breach of the contract, i.e. $220/mo. times months to 18 discounted for present money worth? If you breach an installment contract, you don’t get a judgment ordering a payment of the stated installment am’ts over the term of the contract.

  7. A really big case or nothing at all -- depends on how you interpret the vague wording of the opinion. Gainous v. Gainous, No. 01-04-00427-CV, not yet published (CA, Houston- 1st).

    After H & W married, H became a fireman and participated in the fireman’s retirement fund. 16 yrs. later (1995), H & W divorced per a consent decree which awarded W ½ of H’s fireman’s retirement. No appeal. 3 mos. later (1996), the T/C signed a QDRO which gave W 50% of H’s retirement as of date of divorce but specifically provided that W got no interest in H’s DROP acct. or any COLA increases or any future retirement rights later created by the Tex. Leg. This QDRO was accepted by the retirement trustee. In 1998 H became eligible to retire but he elected to enter the DROP program and continued working until 2003 when he retired. (For a more detailed explanation of the DROP system, see Stavinoha, 126/604/3). His DROP acct. at that time was worth $157,000. After the divorce, the Tex. Leg. created 3 other retirement benefits for which H was entitled. Shortly prior to H’s retirement, W filed a motion to enforce and clarify the ‘95 divorce decree as there was a conflict with the QDRO. W claimed a greater portion of H’s retirement plus a part of the DROP acct., the COLA increases and the 3 post divorce retirement benefits. H defended on the basis that the QDRO was res judicata as to W’s claims and W was estopped from claiming anything in excess of that granted her in the QDRO. Also, W can’t be entitled to the 3 post divorce created benefits as they didn’t exist when the parties’ community property was divided. Altho W’s pleadings didn’t restrict her claims to a Berry division, that’s what she argued for in the T/C. After hearing, the T/C denied W any relief from which she appeals. Apparently W’s appeal claimed that the T/C abused its discretion by denying her request for relief. How does W get around the res judicata defense? Simple. She is collaterally attacking the QDRO thus res judicata or estoppel doesn’t apply. You can’t do this unless the QDRO is void.

    The CA held the QDRO was void because it altered the decree property division in violation of §9.007, i.e., the decree gave W 50% interest in all of H’s retirement rights including those created post divorce (See Reiss, 118/439/3 and Shanks, 110/444/3).W wins. Right? Wrong! W argued she was entitled to a Berry proportional part of everything, i.e. ½ of years married divided by years in retirement times am’ts received upon retirement. She’s wrong– she’s entitled to more (50% of everything). Since W asked for less than she’s entitled to, the T/C did not abuse its discretion in denying W any relief. Huh? Actually the CA said that, like the QDRO erroneously altered the decree property division, W, by asking for less, was asking the T/C to erroneously alter the decree property division. If the T/C had awarded W 50% of everything, the T/C would not have abused it’s discretion.

    Comment - The majority affirms the T/C’s denial of relief. The dissent would reverse and remand for redivision, i.e. W gets ½ of everything. The majority says its opinion does not divest the T/C of juris. to enforce and clarify the decree. What does this mean? Can the W now go back to the T/C and ask for 50%? If she can, then this case isn’t very significant. If she can’t, then this opinion is huge. Example. H is ordered to pay c/s of $100/mo. He doesn’t. W waits until the child is over 18. W files an enforcement action requesting a monetary judgment ($10,000) for the 100 mos. H didn’t pay. The T/C denies W any recovery because at trial, its proved that H failed to pay for 101 mos. This can’t be the law. As the CA’s basis for affirming the T/C was one created by the CA itself and was never briefed or argued by H or W and was never mentioned by the T/C, this case should have been reversed and remanded in the interest of justice. Why force W to file a 2nd suit with all the additional time and cost that would entail? I trust someone will file a motion for rehearing so the majority can clarify its holding. If W can’t get a 2nd bite of the apple, hopefully the Supremes will grant review and reverse this ludicrous result.