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Gray's Interesting Cases for October, 2008

Updated and presented by Sallee S. Smyth
  1. Sanchez v. Sanchez, 2008 Tex. App. LEXIS 6867 (Tex. App. – Corpus Christi August 28, 2008) (mem. opinion) (Cause No. 13-07-207-CV)

    H and W announced an agreement of all issues in their divorce on the record in open court. Thereafter the court signed a final decree. W filed a motion to correct or reform the decree complaining that it failed to conform to the parties’ agreement on essential issues. The motion was overruled by operation of law. On appeal the court concluded that the decree contained some, but not all of the terms recited in the agreement as to the division of property and further that the decree modified other terms as stated on the record. Because rendition of the divorce and division was based on an agreement but the decree was not in strict and literal compliance with the agreement, the COA affirmed the divorce but reversed and remanded the remaining issues.

  2. In the Interest of M.G.F., 2008 Tex. App. LEXIS 6631 (Tex. App. – Fort Worth August 28, 2008) (mem. opinion) (Cause No. 02-07-241-CV)

    M and F were divorced in 1993 and F was ordered to pay child support of $544/month. In 1995 the parties recited an oral agreement in court to reduce support to $362/month and F agreed to produce his 1995 tax return within thirty days of the hearing. The court approved the agreement and stated that “it would sign” a written order. After the hearing there were some ongoing negotiations to reduce the support further. A written order was never submitted and F did not provide his tax return as agreed. In 2005 the AG filed a motion to confirm c/s arrearage of $50,000+ based on the original $544 c/s obligation. F filed a motion to sign an order reflecting the 1995 agreement. F argued that the trial court had made a present rendition back in 1995 and the AG argued to the contrary. The trial court found that it did NOT render judgment in 1995 since it stated prospectively that is “would sign an order” and further that since an agreement was contingent upon F’s production of the 1995 return (which did not happen) the agreement was not completed. Arrearage judgment affirmed.

  3. In re Vogel, 2008 Tex. App. LEXIS 6788 (Tex. App. – Houston [14th Dist.] September 9, 2008) (orig. proceeding) (Cause No. 14-08-631-CV)

    In a previous suit, M was appointed SMC and F was appointed PC of the parties child. F was an admitted alcoholic and was not a routine participant in the child’s life. M died suddenly and maternal GM filed a suit for conservatorship. F challenged GM’s standing for lack of evidence which proved that the child’s circumstances impaired her physical health or emotional development. The court denied the challenge and issued TO’s appointing GM and F as temporary JMC. Thereafter the court interviewed the child and then issued additional orders which suspended F’s visitation except as determined by the child’s amicus. F sought a writ of mandamus. F argued that for GM to have standing, she must prove an “immediate danger” to the child and she must overcome the parental presumption. The COA recognized that the “immediacy” element had been removed from the statute in 1995 and further that application of the parental presumption (if relevant) does not impact the “standing” issue. Analyzing the evidence, the court found that there was sufficient evidence of existing and potential emotional harm to the child because of her fragile state stemming from her mother’s death, possible removal from her GM and orders requiring her to live with F who had not been previously involved and had problems with alcohol. Writ of mandamus denied.