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Gray's Interesting Cases for October, 2009

Updated and presented by Sallee S. Smyth
  1. In the Interest of M.V., M.V., & E.V., 2009 Tex. App. LEXIS 7051 (Tex. App. – Houston [14th Dist.] September 1, 2009) (Cause No. 14-08-418-CV) (mem. opinion)

    H and W married in 1989. H fled to Mexico with one of the parties’ three children and W filed for divorce. H was cited by publication. The court signed a decree in 1994 awarding W custody of all the children and ordering H to pay child support. The amount of child support was left blank in the decree but the docket sheet reflected that the amount of $500/month was ordered. In 2007 when H finally returned to the US the parties entered into an agreed order modifying child support. W also filed a motion for judgment nunc pro tunc (NPT) asking the court to correct the decree and fill in the amount of child support which the court did. Then W filed a motion seeking child support arrearages from 1994 until the date of the c/s modification. The court granted relief and H appealed.

    Neither party challenged the validity of the NPT order on appeal however the COA addressed the issue as a matter of jurisdiction. The COA determined that because the original docket sheet reflected the amount of c/s, this was some evidence of the judgment rendered, making the NPT order an appropriate correction of a clerical error. H challenged the retroactive effect given to the NPT order however the COA noted that a NPT order relates back to the date of the original judgment and is effective as of the earlier date, therefore the trial court had the authority to enforce the child support arrearage accruing since 1994. Affirmed.

  2. In re: Durant, 2009 Tex. App. LEXIS 7201 (Tex. App. – Fort Worth September 10, 2009) (Cause No. 02-09-079-CV) (orig. proceeding) (mem. opinion)

    The trial court held H in contempt for failing to return the child to W at the end of his Christmas period of possession in 2008. The court sentenced H to 60 days in jail and ordered him confined for an initial 96 hour period with the balance probated for a period of 5 years. H filed for a writ of habeas corpus alleging that (1) the order was void for failing to recite the terms of the order violated; (2) the order is void because it contained civil contempt language not ordered; and (3) set terms for probation (shall comply with this order, the prior decree and any future modifications of that decree) which were improper.

    The COA determined that since the contempt order referenced the underlying order by name and date and further found that H had violated that decree by failing to return the child after his specified period of possession, the order sufficiently identified the terms of the order violated as required by TFC §157.166(b). The COA deleted the civil contempt language from the order and found that the conditional language for H’s probation was void because it obligated H to obey non-existent orders which may arise in the future. The COA granted the writ in part by modifying the commitment order but remanded H to jail to serve the initial 96 hours of his sentence.

  3. Critz v. Critz, 2009 Tex. App. LEXIS 7362 (Tex. App. – Fort Worth September 17, 2009) (Cause No. 02-08-015-CV)

    H and W married and had one child. The parties separated in 2003 and H moved out. When the house was foreclosed, W and the child moved in with H’s parents (PGP’s). While living with PGP’s, W began dating BF. In January 2004 W began staying with BF on weekends, leaving the child with PGP. In May W became pregnant and moved in with BF in June. The child remained with PGP. For the remainder of 2004 W was hospitalized due to pregnancy complications. She saw the child 1 day in September, 2 days in October, none in November, and 3 days in December. She remained in contact with him by phone. In January 2005 H filed for divorce asking to be named primary JMC. The same day PGP filed an intervention seeking primary JMC claiming that H and W had both relinquished the child to them and that appointment of H or W as primary conservators would significantly impair the child’s health or development. W filed answers to both petitions along with a counter petition seeking SMC.

    In May 2005 the court issued temporary orders giving PGP primary custody and visitation to H and W. Social studies were prepared and the case was tried to the court in March 2007. The court named H, W and PGP all JMC and gave PGP primary possession with the right to establish the child’s residence. W was awarded visitation at specific times and H was given possession as agreed with his parents. W filed a MNT and sought FFCL. The Court issued findings that PGP’s rebutted the parental presumption and that appointment of PGP’s as primary conservators was in the child’s best interest. W appealed claiming the trial court failed to make the specific findings required to support its conclusion that the parental presumption had been overcome and further that the evidence was legally and factually insufficient to rebut the presumption. On appeal PGP’s argued that the parental presumption did not apply because H and W were also appointed JMC’s of the child along with PGP’s. They relied on the TX Sup. Ct. decision in Brook v. Brook, 881/297 (1994) which held that a finding of significant impairment was not required when a nonparent was appointed JMC with a parent.

    The COA noted that Brook was decided under the old statutory scheme when parents could be appointed as JMC’s only upon a finding that it was in the child’s best interest, noting that that TFC §151.131 now requires their appointment absent evidence overcoming this presumption. The COA held that under current law, the presumption must be overcome as to both parents before a non-parent can be appointed. Although the COA found that the trial court erred in failing to issue specific findings as to the basis for overcoming the presumption, this error was waived because W failed to timely request additional findings. The COA thereafter analyzed the evidence offered to overcome the presumption and determined that it was legally and factually insufficient. The COA held that W did not voluntarily relinquish the child to PGP for over a year, determining that everyone understood that the child was only going to remain with PGP until the end of the school year. Further, when suit was filed she answered and challenged the PGP’s request for custody so from this point forward the child was not in their care with W’s consent. The COA reversed and remanded for a new trial on the issue of whether appointment of H and W as JMC would not be in the child’s best interest as provided by TFC §151.131(a).

  4. Office of the OAG v. McBee, 2009 Tex. App. LEXIS 7315 (Tex. App. – Houston [1st Dist.] September 17, 2009) (Cause No. 01-08-433-CV) (mem. opinion)

    H and W were divorced in 1997. H was ordered to pay ongoing c/s of $145/month and $7,500 for retroactive c/s. H did not pay. In 2007 the AG moved to enforce the order and sought contempt and an arrearage judgment. An AJ found H in contempt and signed an agreed order which modified c/s and assessed an arrearage judgment of $39,231.26. Seven days later, H filed for de novo review by the presiding judge challenging various parts of the proceedings before the AJ as well as the ultimately ruling. The trial court then held a full evidentiary hearing where H presented evidence that he had been incarcerated, he had difficulty finding a job, the W and child had lived with family for some of the time and W had not supported the child, that H’s parents had contributed money for support and that for some period the child was cared for solely by H’s sister. The trial court confirmed the original $7,500 arrearage. The trial court further determined that the remaining arrearage was $13,133 after allowing offsets for the period of time that H was in jail and reducing the amounts owed for the period of time that the child lived with H’s family. The court further awarded no interest on the arrearage based on a theory of unjust enrichment since the mother was not in possession of the child for much of the arrearage period. The AG appealed.

    The AG claimed the trial court’s order was void because H’s notice of appeal from the AJ’s ruling was untimely under TFC §201.015. (Although statute now allows this filing within 7 days instead of 3 days under the old statute, the enforcement action in this case was filed right before the new statute went into effect and therefore the old statute applied.) The COA determined that because an AJ can render and sign a final judgment that even though the notice of appeal was untimely the trial court was permitted to treat the notice as a MNT filed within 30 days of a final judgment under TRCP 329b and conduct a new trial. Despite this the COA found that the trial court erred in allowing offsets for the period of H’s incarceration because this was not authorized by TFC §157.262(f) and TFC §157.008(a) and (b). Further the statutes do not authorize offsets when the obligee relinquishes the child to a third party, only when the child is relinquished to the obligor. Finally the COA held that the court was not permitted to allow offsets under a theory of unjust enrichment. Reversed and remanded.

  5. Hale v. Hale, 2009 Tex. App. LEXIS 7378 (Tex. App. – San Antonio September 23, 2009) (Cause No. 04-09-198-CV) (mem. opinion)

    In 2003 W sued H to enforce an out of state divorce decree and the court signed a default judgment against H awarding W past due child and spousal support. H timely filed a MNT and the parties thereafter filed an agreement with the court for a new trial. Despite the agreement the court never signed an order granting a new trial and thus the MNT was then overruled by operation of law. H did not appeal. Several years later W filed a suit to enforce the default judgment and H filed a bill of review seeking to vacate the default judgment. The trial court granted the BOR and set aside the default and ordered a new trial. W appealed but this was dismissed for want of jurisdiction because the order granting BOR was interlocutory and could not be appealed until a new final judgment was signed after the new trial. After the new trial the court issued an order denying the relief requested by W and W appealed. W challenged the trial court’s order granting BOR.

    In addition to the traditional BOR requirements [(1) proof of meritorious defense; (2) which party was prevented from making because of fraud, accident or wrongful act of opposing party or official mistake; (3) unmixed with any fault or negligence of his own] a party must demonstrate that they exercised due diligence in pursing all adequate legal remedies. (11 S.W.3d 924). Because H timely filed a MNT, when this was overruled by operation of law he could have filed a direct appeal but he did not. Since he had an available remedy but did not pursue it, he was not entitled to a bill of review. COA reversed order granting BOR and resulting judgment after new trial.

    Comment: Remember that you must always obtain a written order granting a new trial. Oral renditions granting a new trial and docket entries granting a new trial are not substitutes for a written order. (851 S.W.2d 187)

  6. Jurek v. Couch-Jurek, 2009 Tex. App. LEXIS 7421 (Tex. App. – El Paso September 23, 2009) (Cause No. 08-08-110-CV)

    H and W married in 1990 and W filed for divorce in 2006. At trial W claimed that the parties had executed a premarital agreement before marriage. H denied ever having signed such a document. The trial court admitted evidence as to the existence of a premarital agreement and admitted parol evidence as to its contents. Specifically, W presented evidence that the attorney who drafted her sister’s premarital agreement in 1987 also drafted one for her in 1990 and further that this same attorney drafted a second premarital agreement for her sister in 1991 which was identical to hers except for the names, dates and exhibits. W testified that after signing the agreement she put it in a box in the attic marked “1991” and that when she filed for divorce and went to look for the box it was gone. The attorney who drafted the agreement testified that he had since retired and destroyed all his files. Further, the notary who witnessed the agreement had died and her notary book could not be located. The parties’ accountant testified that H told him the parties had executed a premarital agreement which provided that “what’s hers is hers and what’s mine is mine.” Further the CPA testified that that the parties conducted their finances as if such an agreement existed by filing separate tax returns, reporting their income separately and by acquiring title to all property after marriage in their individual names.

    During trial W’s attorney sought to introduce a copy of the 1991 premarital agreement executed by W’s sister into evidence to prove the contents of the W’s 1990 agreement. H’s attorney objected on the grounds of relevance and further objected that the original document was required (TRE 1002) because the exception provided in TRE 1004(e) (allowing admission of other evidence of the contents of a document if the subject document is not related to a controlling issue in the case) should not apply. The trial court overruled the objection and admitted the sisters 1991 premarital agreement to prove the contents of the parties 1990 premarital agreement. Throughout the remainder of the trial both parties referenced and discussed the terms of the 1991 agreement during their examination of other various witnesses. The court ultimately characterized and divided the parties property, including a 401K plan and over 30 rent houses which were all confirmed as W’s separate property. H appealed.

    Regarding the premarital agreement the COA concluded that the evidence was sufficient to establish that the 1990 agreement had been lost or destroyed through no fault of W and that admission of the 1991 agreement to prove its contents was not error because it met the exception under TRE 1004(a). The COA noted that at trial H only objected based on TRE 1004(3) and therefore on appeal he could not rely on grounds which he had not preserved. Further the COA noted that even if preserved, H waived his objection to the admission of the 1991 agreement by failing to object when various witnesses offered testimony as to its terms and contents. H did not make a “running objection” to all testimony regarding the 1991 agreement or assert independent objections to testimony about the 1991 agreement as it was offered. Citing a 1958 Houston appellate decision (310 S.W.2d 148) the COA noted that a party can waive error in the admission of a document admitted over objection if they treat the document as being in evidence for all purposes by questioning future witnesses about its content. On appeal H asserted error regarding the characterization of the rent houses as W’s separate property. The premarital agreement did not contain terms which characterized debts incurred by the parties after marriage. W purchased all of the rent houses with no money down, in her sole name, however the loan documents did not specify that the lender would look solely to W’s separate property for satisfaction. As a result, H argued that the rent houses were purchased with community credit and were community property. The COA agreed.

    However, despite the characterization error, on appeal H failed to conduct a “harm analysis” by showing how the characterization error resulted in an improper division since there was nothing in the record to establish the value of the rent properties, the amount of money W had paid on the notes from her separate funds or the total value of the community estate. H also challenged the court’s characterization of W’s income from separate property as separate property based on his claim that any such agreement contained in a premarital agreement was not authorized by the Texas Constitution. The COA noted that while future spouses may not agree that income from S/P will remain S/P, future spouses may agree to partition community property acquired in the future. As income from separate property is generally characterized as community property, and the parties’ pre-marital agreement expressed an intent to partition future community property, including income, the COA noted that the parties’ premarital agreement was sufficient to effectuate a bilateral partition of their community property interest in future income from separate property. Finally, H claimed that it was error to award W her retirement benefits as separate property in violation of the anti-alienation clause of ERISA which preempts applicable state law. The COA noted that where federal law would result only in a change of the applicable law to be applied by the trial court (as opposed to affecting the court’s jurisdiction to act), preemption is an affirmative defense that must be pled or it is waived. Because H raised this issue for the first time in his MNT, it was not properly pled. Final judgment affirmed.