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Gray's Interesting Cases for September, 2009

Updated and presented by Sallee S. Smyth
  1. In the Interest of S.L.M. and W.G.M., 2009 Tex. App. LEXIS 5885 (Tex. App. – Dallas July 31, 2009) (Cause No. 05-08-1277-CV)

    H and W divorce. H & W are appointed JMC of their two children. No child support was ordered. M was awarded the right to claim the dependency exemptions for federal tax purposes on both children each year. H filed a MNT which was granted and after a second hearing the trial court affirmed its prior decision. H appealed and challenged the award of the dependency exemption.

    Under federal law, when parents are divorced the exemption belongs to the “custodial parent” as defined by 26 USCA §152(3)(1). The “custodial parent” is the parent having custody of the child for the greater portion of the calendar year and the “non-custodial” parent is the parent who is not the custodial parent. 26 USCA §152(3)(4). Because neither parent was willing to give the exemption to the other making the exception to the rule inapplicable, the COA reviewed the number of days that H and W had possession of the children based on the visitation schedule in the decree and determined that H had possession of the children for more than one-half of the calendar year and was thus entitled to the exemption. The COA reversed only that portion of the final decree and affirmed the remainder.

  2. In the Interest of M.K.S.-V., 2009 Tex. App. LEXIS 6212 (Tex. App. – Dallas August 11, 2009) (Cause No. 05-08-568-CV)

    Karen and Tammy (aliases) met in 1997 and began living together in 1998. They discussed having a child and received counseling. In 2003 Tammy became pregnant through a sperm donor. The child was born in May 2004 and co-parented by Karen and Tammy until August 2005 when Tammy and the child moved out. After separation, Tammy agreed that Karen could visit regularly and they set up a visitation schedule. The scheduled allowed visits overnight once a week and alternate Sunday afternoons during the school year and Thursday afternoons during the summer and some holidays. This schedule continued from August 2005 to April 2007 when Tammy stopped the visits when she learned that Karen had accessed the child’s school records against Tammy’s instructions. The following month Karen filed suit seeking to be named a JMC or in the alternative seeking to adopt the child. Karen asserted standing under TFC 102.003(9) (person having actual care, custody and control for 6 months ending not more than 90 days prior to suit). Karen asserted that she was a parent by estoppel and had standing to sue for adoption under TFC 102.005(3) (actual possession and control for at least 2 months during the three months prior to suit). Tammy filed special exceptions and challenged Karen’s standing. After evidentiary hearings before the AJ and eventually the presiding judge, the trial court determined Karen had no standing to seek conservatorship but did have standing to seek adoption, but not under the statute Karen relied on. Instead the court found standing to adopt under TFC 102.005(5) (person with substantial past contact with the child sufficient to warrant standing). The court ordered Karen to amend her pleadings to seek adoption only. Karen amended and sought adoption under TFC 162.001; adoption by estoppels and breach of contract based on denial of visitation under the visitation agreement. Tammy then moved to dismiss the adoption claim because Tammy’s rights had not been terminated, Karen and Tammy were never married and Karen was not a step-parent, and Tammy had not and would not consent to adoption. Tammy also sought to dismiss the breach of contract claim because it was a conservatorship claim in disguise and Karen had not standing to pursue this. After these arguments the trial court dismissed all of Karen’s claims. Karen appealed.

    The COA acknowledged that standing may not be conferred by waiver, estoppels or consent except in two limited cases which did not apply here. The COA rejected Karen’s argument that the possession agreement gave her standing, determining that although is did have some attributes of an SPO, it did not confer any rights or powers upon Karen to have control or decision making authority for the child. The COA determined that “care and control” must be more than just that level of control which is implied when you merely have possession of a child for a visit. The court also rejected Karen’s estoppels argument since standing may not be conferred in this manner. The COA agreed that the breach of contract claim was really a claim for conservatorship rights and since Karen had no standing to seeking these rights the trial court did not err in dismissing this claim. Finally the COA held that because “consent” of the existing parent is a requirement for adoption under TFC 162.001 or adoption by estoppel, independent of the requirement for standing, and no such consent existed in this case, dismissal of this claim was also proper. Judgment of trial court dismissing all claims was affirmed.

  3. Noyes v. Noyes, 2009 Tex. App. LEXIS 6220 (Tex. App. – San Antonio August 12, 2009) (Cause No. 04-08-627-CV) (mem. opinion)

    H and W were divorced in 2007 based on an MSA that was merged into a final decree. The decree specified it was also enforceable as a contract. As part of her property award, the decree provided that W would receive $125,000 from H on the date of closing of a house which he was being awarded. The decree did not specify any time frame within which H must sell the house. The decree provided standard language allowing the court to make further orders to enforce or clarify the decree. In 2008 W filed a suit to enforce the decree or in the alternative to clarify the decree. W claimed that H had failed to sell the house and pay her the $125K. In the alternative, W asked the court to clarify the decree if the terms were not specific enough for enforcement. She wanted language included that required H to maintain the home in sellable condition, keep it repaired, keep it vacant, require any reasonable offer to be accepted and eventually contemplate a receiver if the property did not sell. Asserting that W’s suit was a suit to modify the property division, H filed a plea to the jurisdiction alleging that the court had no right to modify the decree and thus no subject matter jurisdiction to entertain W’s suit. The court found the decree to be unambiguous and granted H’s plea, dismissing suit. On appeal, W argued that since the decree was missing terms for the time period in which to sell the property, the decree was ambiguous and clarification was appropriate. H argued that the absence of any time periods in the decree simply meant that he could sell the house only if he wanted to and that he only had to pay the $125K to W “in the event” he sold the property.

    The COA found that in reviewing the decree as a whole, the $125K was a substantial part of W’s settlement and that the requirement that he pay the money on the date he closed on the house contemplated that the house would be sold. Because the parties had provided that the decree was enforceable as a contract, application of contract law to its interpretation was appropriate. The COA held that when time periods are missing from a contract, the law will imply a reasonable time. The COA ultimately determined that W’s suit to enforce the decree because H had not sold the property within a reasonable time and paid her the funds was a cause of action within the trial court’s jurisdiction and the trial court erred in dismissing the claim. The dismissal order was reversed and the matter remanded for trial of the enforcement/clarification action.

  4. In the Matter of D.K.B., 2009 Tex. App. LEXIS 6336 (Tex. App. – Corpus Christi August 13, 2009) (Cause No. 13-08-177-CV) (mem. opinion)

    In 2004, two months after F was killed in an auto accident, the child was born. In 2007, paternal grandmother (PGM) filed a suit for GP access claiming that the denial of possession would significantly impair the child’s well-being. The case was tried. PGM claimed that after the child’s birth she had regular visits, normally about once a month. M was always present during these visits. PGM testified that the visitation pattern began to change after the child turned 2 and that they became less and M was not as cooperative in arranging visits. PGM admitted at trial that M was not unfit and a good mother. M testified that she did not intend to stop visits but that as a parent she thought she had the absolute right to determine when and if they happened. The trial court granted PGM’s request and gave her court ordered visits one weekend day each month until the child turned 3 and then one weekend a month with an overnight. M appealed.

    The COA determined that PGM met the initial requirements for seeking relief (PGM’s son had died) but found that there was no evidence to support a finding that the child would be detrimentally affected in the absence of an order for GP access and further that there was no evidence M planned to restrict access in the future and therefore a court order was not necessary to insure the child’s continued relationship with her GP. GP also argued that because twenty months had passed while the appeal was pending, it was reasonable to assume that she and the child had bonded significantly during these court ordered visits and that if the COA determined that reversal was appropriate, it should not be done with prejudice against PGM’s rights to re-file for access in the future if circumstances changed. Recognizing that circumstances may have changed since trial, the COA held that while they could not base any decision on facts not in evidence, the ruling they made was not “with prejudice” and that if situations changed in the future that indicated M was no longer acting in the child’s best interest by fostering a relationship between the child PGM could bring another suit seeking access.

  5. Bhatti v. Bhatti, 2009 Tex. App. LEXIS 6511 (Tex. App. – Corpus Christi August 20, 2009) (Cause No. 13-08-0310-CV) (mem. opinion)

    H filed for divorce and W filed a counter petition. Eventually the case was called for trial and the parties announced an agreement on all issues except those regarding possession of the two minor children. (One minor was 16 and attending UT in Austin and dad wanted to visit him in Austin while there on business trips). The court appointed the parties JMC and ordered them to prepare a decree in accordance with their agreements. W filed a motion to set aside the agreement because she claimed that H had removed monies from the children’s education accounts and wrongfully transferred some to his family in Pakistan. The children testified at this hearing stating that they wanted visitation on their own terms. The Court ordered an SPO and then appointed a special master to re-address the property issues. Neither party objected to the special master and both submitted written proposals as to how the property should be divided. The special master made his recommendations and W objected to them. She also complained that the master had not considered some of her evidence and that he had not held an evidentiary hearing on any matters. The court conducted a hearing on the objections to the special master’s report. The court heard argument only and told the parties he would review the master’s findings. The W waived her complaints regarding the visitation orders just to get the case concluded. Subsequently the court overruled W’s objections to the report and signed a final decree. W appealed.

    On appeal the COA presumed that the appointment of the special master was under the authority of TRCP Rule 171 since no specific authority was cited by the trial court. Although no one objected to the appointment, case law construing this rule has established that objecting to the master’s recommendations allows a party to obtain a trial de novo and that each party has the right to present evidence to the trial court who will then decide the issues. In this case the COA noted that no one every attempted to present additional evidence to the trial court and further that W never specifically requested a trial de novo and the record does not establish whether the trial court ever specifically refused to conduct one. Because the record before the COA did not show any error (primarily because it was so unclear as to what had or had not occurred before the trial court or what the master had and had not considered) the judgment was affirmed.

  6. In re Taylor, 2009 Tex. App. LEXIS 6573 (Tex. App. – Houston [14th Dist.] August 20, 2009) (Cause No. 14-09-00548-CV) (orig. proceeding)

    In the midst of a divorce, W sought to depose Taylor, the president of a corporate conglomerate in which the parties owned stock. The deposition sought information to assist in valuing the parties’ stock, the largest asset of the parties’ community estate. Taylor was located in London so W obtained letters of request from the Texas court and the English High Court of Justice acted on the letters, ordering the deposition to proceed in London and limiting the deposition to certain relevant issues. Taylor filed a motion to quash the deposition based on his claim that it was an improper apex deposition. Taylor claimed that three other officials in the company (one of which was the H) were better suited to provide the information W sought and that he should not be deposed. The English court stayed the deposition pending a decision by the Texas court on the motion to quash. The Texas trial court denied the motion to quash and Taylor sought a writ of mandamus.

    The COA set forth the standards governing apex depositions as established by the 1995 Texas Supreme Court opinion in Crown Central Petroleum Corporation v. Garcia, 904 S.W.2d 125 (Tex. 1995). Under these standards, the party seeking the deposition must first establish that the deponent is a high level official with unique or superior personal knowledge of discoverable information. If they cannot make this showing the court must then require them to try and obtain the discovery through less intrusive means. If the party then makes a good faith effort to obtain he discovery and the party can show that (1) there is a reasonable indication that the official’s deposition is calculated to lead to discovery of admissible evidence and (2) the less intrusive methods are unsatisfactory, insufficient or inadequate, the party will be permitted to depose the apex official. The COA determined that this was an “apex deposition” situation because Taylor did qualify as a “high level official” and that Taylor had “unique or superior knowledge of discoverable information” and the apex standards should apply. The record further established that W had actually deposed the three other officials named by Taylor (including H) on the valuation issue and the COA reviewed these depositions. Based on this evidence the COA determined that Taylor did have superior or unique knowledge regarding the company’s performance which affected the value of the H’s stock. The COA determined that W had met the Crown Central standards and that the trial court did not abuse its discretion in denying the motion to quash. Mandamus denied.

  7. Chenault v. Banks, 2009 Tex. App. LEXIS 6558 (Tex. App. – Houston [14th Dist.] August 20, 2009) (Cause No. 14-07-1094-CV)

    H and W divorced in 1985 and H was ordered to pay c/s of $300 per month. The only modification to the decree was one ordering support to be paid to the child support registry. H died. In 2006 W filed an action to enforce and confirm child support arrearages under TFC 157.263 against Banks, H’s sister and executrix of his estate. W claimed that H paid only $21,900 of is full $57,300 child support obligation. She sought a judgment for arrearages and interest against his estate. Banks disputed the claim and produced evidence supporting other support that H had provided to the child over the years, including a loan from H to W and payment of tuition to the Marine Military Academy for one year totaling just over $18,000. After trial the court issued a letter finding that H’s total c/s obligation was $46,800 and that he had paid more than $41,000 which included the private school tuition credit. The court found arrearages of just over $5,000 and did not explain how it came to this calculation. The court’s letter did not specify the amount of interest but stated that it could only be calculated by a computer and instructed the attorneys to make the calculation or agree to the amount. The court eventually signed an order granting W judgment for $5,105 with no interest. W appealed.

    The COA noted that the trial court may not modify or reduce c/s arrearages but must simply make a mathematical calculation of what is due, what has been paid and what is owed. While the court can award offsets and credits, it has no ability to forgive or decrease past due c/s obligations. The COA noted that the evidence regarding the private school tuition payment was disputed, with Banks claiming H and W agreed the payment would be in lieu of c/s and W claiming that she made no such agreement. Regardless, the COA noted that “private agreements” to modify c/s bypass the trial court’s role in protecting the best interest of the child and are therefore against public policy and unenforceable. If parties agree to modify support, they must go to court and get an order that effects the modification. While the COA did not specifically rule that other offsets and credits for such things as Christmas gifts, a class ring, season pass to amusement park, a car and insurance were error, the COA did determine error had occurred purely because there was no possible way to arrive at the court’s arrearage number using these credits and therefore the court abused its discretion in making the arrearage calculation. Finally, the COA held that the judgment without interest was an abuse of discretion because the award of interest is mandatory under TFC §157.263(a), (b)(3). Judgment reversed and remanded.

  8. Conn v. Rhodes, 2009 Tex. App. LEXIS 6587 (Tex. App. – Fort Worth August 20, 2009) (Cause No. 02-08-420-CV) (mem. opinion)

    H and W were divorced in 2002. W was named SMC and H was named PC of the parties’ daughter, age 11. Before the decree was signed, H filed a petition to modify seeking JMC and the right to designate the child’s primary residence. W filed a counter motion to modify seeking an increase in child support, medical reimbursement and modification of possession. She later amended her pleading to seek only changes in possession and terms for counseling that were contained in the final decree. The modification proceeding remained pending and then H eventually filed a suit to voluntarily terminate his parental rights in 2006. The case was tried to the court in 2008. H was pro se. The court denied termination, modified c/s and granted medical reimbursement to W. H appealed. On appeal, H complained of the trial court’s refusal to allow the child to testify. H called the child to testify and the amicus attorney objected to relevance. The court sustained the objection and H did not make an offer of proof. The COA determined that in the absence of an offer of proof, the COA was unable to determine if exclusion of the evidence was harmful or improper under the stated objection. Further, H complained about the court’s orders which granted him visitation in accordance with the parties’ mutual agreement.

    The COA found that since H testified he had no intentions of exercising visitation, reversal on these grounds which then resulted in a specific order for visitation periods would be an effort in futility and if H wanted to see the child and felt that W was obstructing this by refusing to agree, then he could seek a modification. Finally, H complained that the court erred in admitting W’s evidence regarding child support increase and medical reimbursements because W’s live pleadings at trial did not request c/s modification or medical reimbursement, which the court construed as a challenge to the trial court’s orders in the absence of pleadings. The COA noted the general rule under TRCP 65 that an amended pleading takes the place of an original pleading and that the original pleading is superseded and no longer a part of the “live” pleadings, noting that under this rule a party may voluntarily dismiss claims by leaving them out of the amended pleadings. However, the COA also noted that under TRCP 64, a party filing an amended instrument must point out the instrument being amended, which is normally done in the caption. Further, case law has interpreted this to mean that a party must abandon a former pleading by an express act rather than by implication. The COA noted that W’s amended pleading did not reference her former pleading and nothing in the 2005 amended pleading expressed W’s intent to abandon or supersede the claims contained within her 2002 pleading and therefore both petitions were considered her “live” pleadings for purposes of trial and the court did not err by admitting evidence in support of these claims. Judgment affirmed. COMMENT: Holy Toledo! Everyone getting ready to go to trial believing that their opponent has abandoned significant claims through amended pleadings should go check those amended pleadings to be sure they comply with TRCP 64 … otherwise, you may get caught completely unprepared to try claims that you thought were abandoned, but actually (and cleverly) were not.

  9. In re Green, 2009 Tex. App. LEXIS 6751 (Tex. App. – Beaumont August 27, 2009) (Cause No. 09-09-323-CV) (orig. proceeding) (mem. opinion)

    H and W signed a binding MSA which agreed that sworn inventories would be filed. A month later the court pronounced the parties divorced and announced its intent to adopt the parties’ agreement. Thereafter W filed a document revoking her agreement but later conceded that her revocation was late (coming after divorce was rendered). The court signed a decree. W filed a MNT claiming that the agreement had been procured by duress, coercion, unfair tactics, impaired capacity and nondisclosure of assets. After an evidentiary hearing the court granted the MNT. H asked the court to reconsider this decision based on his argument that the MSA was irrevocable. H claimed he was entitled to entry of judgment on the MSA. The court withheld ruling on the motion to enter judgment. H sought a writ of mandamus to compel the court to enter judgment. W argues that H has already received all that he was entitled to when the first decree was signed but suggests that the granting of the MNT had the effect of setting aside the MSA and putting the parties back to the position they were in before the MSA was signed.

    The COA noted that while the trial court has set aside the decree, it has not yet entered a new judgment that has the effect of voiding the MSA and that because W has made allegations of wrongdoing in connection with the MSA, the trial court must hear and decide these issues in the new trial. Mandamus denied.

  10. Lowe v. Lowe, 2009 Tex. App. LEXIS 6726 (Tex. App. – Beaumont August 27, 2009) (Cause No. 09-08-507-CV) (mem. opinion)

    H and W divorced in 2006. Neither appealed. The decree awarded a house to W and assigned the mortgage to her. The same decree also ordered the house sold and the proceeds divided equally between H & W. A year later, H filed a motion in aid of judgment and sought an order for a realtor to sell the property. The court granted the motion and ordered W to keep paying the mortgage until the sale. No one appealed this order. A year later H filed a motion to sell the property, sought a receiver and requested the house sold and the proceeds divided 80/20. This motion was served on W by substituted service on 9/30/08 with a notice of hearing. W filed a sworn motion for continuance on 10/3/08 claiming she needed time to hire an attorney. The court denied the continuance. No evidence was offered at the hearing but the H’s attorney advised the court that the house had not sold because of its poor conditions. The court found that W had interfered with the sale, ordered her to vacate the property and appointed a receiver. W appealed pro se. The COA construed her briefing liberally and identified various legal complaints to the trial court’s orders.

    The COA held that the court abused its discretion in denying the continuance because W was entitled to 45 days notice of the first trial setting (TRCP 245) and since the court in essence decided the merits of the case at a time when such notice had not been provided, the court abused its discretion. Judgment reversed and case remanded.

  11. In the Interest of W.J.B. and L.M.B., 2009 Tex. App. LEXIS 6719 (Tex. App. – Beaumont August 27, 2009) (Cause No. 09-08-289-CV)

    H and W were divorced in Washington in 2003. Under an agreed order, W had primary custody of the children and H was ordered to pay child support. In 2005 H purchased a house in Montgomery County, Texas and W and the children moved into the residence. A month later, H (who had been living in another state) moved in as well. The parties continued to reside together until October 2007 when W purchased her own house and moved there with the children. H quit paying child support in 2005 when he moved into the house with W and the children. Eventually, W filed a suit to enforce c/s and sought arrearages. At trial the parties disputed their intent about living together, with H claiming it was done in an effort to reconcile the family. W claimed that she paid all the children’s expenses during the time they lived together but she did not pay H any rent. H testified that he paid the mortgage and the utilities and that he paid for other expenses of the children. W claimed that she would routinely ask H to pay his child support but H denied these conversations ever occurred. H stipulated to the amount of c/s that he had not paid but he asked for an offset against this amount because he claimed that W had voluntarily relinquished the children to him over and above his court ordered rights to possession and that he had provided actual support for the children in an amount that exceeded his court ordered c/s obligation. H estimated his average expenses for the children but did not provide actual proof for each month in which he claimed to have supported them. The court found in favor of H, determining that W had relinquished the children to H while the parties were living together and further gave H offsets which completely erased his stipulated c/s arrearages. W appealed.

    The COA found that TFC §157.008 (allowing offsets) is not clear whether relinquishment to the c/s obligor must be exclusive during the period under consideration or whether the only relinquishment that must be proven is relinquishment beyond court-ordered periods of possession. The COA felt that a narrow application of the statute would achieve an unreasonable result contrary to the statutes intended remedial effect. Therefore the COA held that TFC §157.008 did provide the H a potential affirmative defense in circumstances where the parties had actually lived together in raising the children under one roof. As a result, the COA found no abuse of discretion in allowing offsets and further since those offsets completely wiped out H’s c/s arrearages, there was no mandatory obligation to award W attorney’s fees. Judgment affirmed. COMMENT: There is a dissent in this case which argues that the H’s evidence establishing the exact amount of support in each and every month was insufficient and for that reason, the offsets should have been denied.

  12. In the Interest of J.G.L., 2009 Tex. App. LEXIS 6877 (Tex. App. – Dallas August 28, 2009) (Cause No. 05-08-1124-CV)

    In a divorce proceeding, H offered evidence of that his monthly resources were approximately $4,700 in 2006 and $3,400 in 2007. The H and his employer testified that H controlled his own hours and explained that the reduction in his income was due to being assigned less work by his supervisor and general economic conditions. C/S was $825/month calculated under his 2006 income was $593/month calculated under his 2007 income (based on 1 child before the court and 1 child not before the court). The trial court found that H was intentionally underemployed and ordered c/s at the higher amount of $825. H appealed.

    The COA held that once an obligor offers evidence concerning his net resources, the burden of proof switches to the oblige to prove an intent to decrease income for purposes of reducing c/s payments. The COA held that W failed to meet this burden and found no evidence to support a finding of voluntary underemployment. The COA modified the decree to substitute the lower child support amount and affirmed the remainder.

  13. Loehr v. Loehr, 2009 Tex. App. LEXIS 6863 (Tex. App. – Corpus Christi August 28, 2009) (Cause No. 13-08-380-CV) (mem. opinion)

    W filed for divorce. After a full day mediation the parties executed an MSA. Both were represented by attorneys and accountants at mediation. Subsequently W filed a motion asking that the parties be ordered to return to mediation because she claimed that she had been fraudulently induced to sign the MSA and that her accountant had not adequately represented her. H filed a motion for the court to enter judgment on the MSA. The court conducted a hearing and then asked the parties for briefing on the issue of enforceability of the MSA. W filed her brief and attached an affidavit explaining further her reasons for thinking that the agreement was unfair or improper. Thereafter the court entered a decree in accordance with the MSA. W filed a MNT and asserted similar complaints in another affidavit. The MNT was denied and W appealed.

    On appeal the COA found that W offered no evidence of fraudulent inducement. Further, the COA held that there was no authority which supported use of the contractual defense of mistake to a TFC §6.602 mediated settlement agreement. Judgment affirmed.