Houston Bar Association - Family Law Section

Gray's Interesting Cases for November, 2006

Updated and presented by David Gray

Andy Rooney Who? Yes for years I've been very critical of the abusive actions of the A.G.'s office in collecting c/s but I've done so (partially) with the hope that the head honchos might try to teach their minions to practice law with a little civility and in a honorable way. Alas I have failed again. Our Attorney General is running political T.V. ads in which he claims his office has collected over $7,000,000,000 in c/s for the benefit of Texas children. While probably true, the ad doesn't mention that for more than 6 years federal and Texas law and court orders mandate that all c/s has to be paid through the A.G.'s office. Implying that such c/s collections would not have happened but for the A.G.'s enforcement actions, in my opinion, borders on being deceitful. What a poor example for the A.G.'s attorney employees to follow. I guess in the eyes of politicians intellectual dishonesty is neither intellectual nor dishonest.

Glash v. Glash, No. 14-05-00846-CV, will not be published -- memo opinion (CA, Houston - 14th).
In a divorce case with kids, the T/C found that H's net resources were $3,985/mo. so the guidelines set his c/s at $996/mo. The T/C found that the guidelines set c/s at $987/mo. but the T/C varied from the guide lines by setting c/s at $1,200/mo. H appeals.

The CA reformed the c/s to $987/mo. Why? 'Cause §154.122 presumes that guideline c/s is in the child's best interest but §154.123 allows the T/C to deviate from the guidelines if there is proof that rebuts the §154.122 presumption. Here the only proof was that H had frustrated discovery regarding his net resources (didn't produce tax returns, etc) so the T/C imposed a higher c/s as a discovery sanction. Varying c/s above or below the F/C guidelines is an abuse of discretion unless there is evidence to justify the variance. Add'lly the T/C imposed this discovery sanction without any notice to H thus depriving him of the opportunity to be heard on considering a lesser discovery sanction.

Comment - A correct result; however, if the T/C had just taken a little time and forced W to come up with some proof of add'l expenses, etc., more than likely this variance would have been affirmed -- just don't say it's a discovery sanction.
Almeida v. Estrada, No. 04-05-00255-CV, not yet published (CA, San Antonio).
W filed for divorce in Webb County claiming a common law marriage. H filed an emergency motion to dismiss claiming its been more than 2 years since the parties' separation thus §2.401 prevents W from claiming a common law marriage. W objects that you can't adjudicate an issue on the merits by a dismissal motion. The T/C ignores W and dismisses her suit.

CA reverses. "A dismissal is an inappropriate means of deciding the merits of a case.."

Comment - Webb County doesn't adjoin Hildalgo County but it does abut the same Rio Grande river.
McKamie v. McKamie, No. 01-05-00941-CV, will not be published - memo opinion (CA, Houston- 1st).
In the parties' divorce trial, H testified that the parties' home had a FMV of $720,000. W's inventory was admitted into evidence, without objection, and it showed the house having an appraised tax value of $531,451. The T/C divided the parties' property based on the values set forth in W's inventory after making a finding that W"s values were correct. H appeals claiming the T/C erred in using tax appraisal values to divide their property. Kuehn, 594/158/2 says ad valorem tax values can't be used to determine FMV even if there's no objection because such values are based on hearsay. H correctly interprets Kuehn. There's just one problem. Kuehn was decided in 1980. Effective 9/1/83 Tex. Rules of Evidence 802 came into being and it says "Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay." H didn't object to W's inventory so the T/C could rely on the ad valorem tax value.

Judgment affirmed.

Comment - A word to the wise. Object on the basis of hearsay if your opponent offers his/her inventory as a short-hand rendition of his/her property value testimony if the property values are based on property tax appraisals.
In the Interest of E.A.R. and S.L. R., No. 04-05-00757-CV, will not be published- memo opinion (CA, San Antonio).
H & W divorced and H was awarded custody of the parties' 2 kids with W having liberal visitation rights. The only problem was that W didn't exercise her visitation rights possibly because one of the kids has a serious medical/mental problem which required extensive care. In 2004 H filed a motion to modify W's visitation rights and increase her c/s. The T/C offered to reduce W's c/s by $100/mo. if she exercised her visitation rights which W refused to do for various reasons. The T/C said o.k., I'm increasing your c/s from the guidelines am't of $658.57/mo. to $907.58/mo. to compensate H for the add'l expense he incurs taking care of the kids 'cause you won't take them during your periods of possession. The CA says this is $250/mo. above guidelines but my calculator says its $249.01 but who am I to quibble with an appellate ct? W appeals.

Affirmed. The T/C did not err by finding that W's failure to exercise visitation resulted in H having to pay add'l monies to support the kids. This finding was not arbitrary or unreasonable.

Comment - I've always thought that the voluntary non-exercising of visitation rights (and its resulting increase in the expenses of the custodial parent) should be an element to consider in a c/s increase motion but I never found a case saying so. Altho unpublished this is a significant case as this issue arises all the time.