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Gray's Interesting Cases for October 2005

Updated and presented by David Gray
  1. In re Keller, No. 04-05-000542-CV, will not be published – memo opinion (CA, San Antonio).

    H & W had a child. H died and his parents (G.P.) sought visitation rights with their grandchild which W denied. G.P. sued for grandparent visitation per §153.433. At trial G.P. admitted that W was a fit parent but they wanted to visit with their grandchild. T/C granted G.P. visitation.

    W filed mandamus which was granted. It is presumed that a parent acts in his/her child’s best interest thus under §153.433 a grandparent has the burden to prove that: (a) the parent is not fit or (b) denial of access by a grandparent will significantly impair the child’s physical health or emotional well-being. As G.P. did not prove (a) or (b), the T/C could not possibly conclude that grandparent visitation was in the child’s best interest. See In re: Pensom, 126/251/3.

    Comment – Although I am now a grandparent, I still think this is good law and T/C’s should abide by it.

  2. Morach v. Collins, 05-03-00492-CV, not yet published (CA, Dallas).

    H & W married in ‘76 and divorced in ‘02 with two kids aged 19 & 16. In ‘87 H & W signed a post- nuptial agreement concerning their various property rights but made no provisions concerning their home which was the focal point of the divorce as W claimed millions for economic contribution. The T/C found that W was entitled to an economic contribution (e.c.) claim against the community estate for $1.5 million which was the value of the parties’ only community asset– the parties’ home. W was awarded a $1.5 million lien against the home in satisfaction of the e.c. claim or she was awarded the home outright in such satisfaction (Yeah, I know this doesn’t make any sense but this is what the opinion says– remember this is Dallas). H was awarded custody of the parties’ two children and W was ordered to pay a lump sum of $76,000 as c/s for two kids calculated on W’s imputed income arising from the $1.5 million e.c. claim. (Yeah, I know one of the kids was 19 at the time of divorce but remember, it’s Dallas). The T/C then awarded W a $99,000 atty fee judgment against H and offset the c/s against the atty fee award so H got zero c/s and still owes W $23,000 for atty fees.

    H appeals just about everything but the CA affirms. As to the offset of c/s against the atty fees, the Dallas CA said this was not an abuse of discretion without citing any supporting authority. In fact, Dallas admits its c/s offset holding is contrary to the well written and reasoned 14th CA opinion in Smith v. Rabago, 672/38/2 which says you can’t offset c/s against another monetary award unless that award is “exclusively applicable to the support of the child.”

    Comment – As this opinion doesn’t know the difference between home ownership and a lien thereon or you can’t order c/s for a child over 18 (unless disabled which wasn’t an issue here) or you can’t offset c/s against atty fees, I suspect no one will cite this case as authority for anything except to ridicule the judgement and writing skills of the Dallas C.A.

  3. In the Interest of R.T.H., No.2-04-356-CV, not yet published (CA, Ft. Worth).

    H & W were JMCs of their child with W having the right to determine domicile. In 2000 W assaulted H; she was later convicted of criminal trespass; and she was placed on deferred adjudication. H then filed a motion to modify so he would have the right to determine the child’s domicile. After taking testimony about W’s sentence and 2 other assault claims, the T/C denied H’s requested modification. H appeals claiming that §153.004(b) prohibits the T/C from appointing W as a JMC due to her pattern of physical abuse.

    CA affirms. §153.004(b) isn’t in point as that statute only applies to an original conservatorship appointment, not a modification. And yes, §156.1045(a) does say deferred adjudication for family violence is a change of circumstances justifying a modification; however, this is not a mandatory statute. You still have to prove that a custody modification is in the child’s best interest which H did not do to the T/C’s satisfaction.

    Comment – There are very few lay-downs in a SAPCR so its always wise to prove “the child’s best interest.”