2. Chavez v. Chavez, No. 04-99-00291-CV, not yet published (CA, San Antonio). H & W divorced in '88. There were 246 sh. of community stock which were pledged to secure a community bank debt. H was ordered to timely pay the bank debt and when the stock was released as collateral by the bank, H was to sell same and divide the proceeds 50/50 between H & W within 10 days of H's receipt of the sales proceeds. The bank debt was discharged and H sold the stock on 4/22/96 but he didn't give W any of the proceeds or tell her of the sale. (I'm sure you are shocked at this turn of events). W learned of H's sale in April '97 and filed an enforcement action in Oct. '98 (2 1/2 yrs after the sale but 1 1/2 yrs after she learned of it). H pled the 2 yr. S of L per § 9.003(b). T/C awarded W judgment for 50% of the sales proceeds. CA affirmed. The 2 yr S of L in § 9.003(b) starts from the date the right to property matures; however, since H didn=t advise W of the sale (fraud), the S of L doesn't start running until W, using due diligence, knew or should have known, of the stock sale which was April '97 in this case.

3. In the Interest of T.V., a child, No. 10-99-129-CV, not yet published (CA, Waco). A parental termination suit was filed against W who was an indigent so the T/C appointed X as her atty per § 107.013. W's rights were terminated & X filed a notice of appeal. X didn't file an appellate brief although he was notified to do so by the CA several times. In a rare move, the CA refused to dismiss the appeal and ordered the T/C to hold a hearing to determine: (1) why X hadn't filed a brief; (2) was W still indigent; and (3) whether W wished to continue her appeal. The CA found that although § 107.013 doesn't expressly provide for representation of appointed counsel on appeal, an indigent is entitled to appoint counsel to appeal a termination order. If W wishes to waive appointed counsel, a knowing and intelligent waiver must appear on the record. If W wants to appeal, the T/C shall take steps to assure her of effective appellate representation. Comment - I wouldn't want to be X; however, this case is a good reason for an atty not accepting an indigent termination appointment. If your client loses, you have to advise him/her of the appeal rights and you might be stuck with the appeal duties. It's hard enough to get attys to take these cases thru initial trial and this case is just going to make the task harder. If you are appointed to represent an indigent, make sure your appointment order provides that your obligation to represent the indigent terminates upon the signing of the final judgment and relieves you of any appellate obligation unless a new appellate appointment order is signed.

4. Matherne v. Matherne, No. 09-98-039-CV, not yet published (CA, Beaumont). H, an atty, and W were divorcing. H filed a sworn inventory in which he listed an unpaid p/n secured by d of t on a beach house owned by H & W. The p/n was payable to W's parents. (The opinion doesn't mention that H handled all the legal affairs of W and her parents nor does it mention that H prepared the p/n that he and W signed when they bought the beach house from W's parents). The p/n was signed on 12/26/83 and called for monthly payments of $289/mo. for 5 yrs at which time the note balance became due (12/26/88). (Again the opinion doesn't mention that after 12/26/88, H continued paying the note at $289/mo. without H reminding his enfeebled in-laws that the note was fully due). In H's 1997 divorce inventory, H represented that $19,000 was still owed on the p/n. In the divorce H got the beach house subject to the p/n which he agreed to pay. Upon divorce W deeded the beach house to H upon his assumption of the p/n to his former in-laws & H signed an assumption d of t to W securing H's promise to pay the p/n. After the divorce H stopped paying the p/n. In '98 W and her mother sued H for the balance due on the p/n. H defended on the basis that the p/n came finally due on 12/26/88 thus suit had to be filed within 4 yrs (12/26/92) so collection of the note was barred by the S of L. T/C granted judgment against H for the unpaid balance of the note plus interest. H appeals. Judgment affirmed. When H signed his 1998 divorce inventory listing the p/n as an existing debt, he acknowledged the existence and am't due under the p/n and impliedly promised to pay the p/n thus revitalizing what would otherwise be a S of L barred p/n. Even though H's acknowledgment wasn't made directly to his former in-laws, it was done under circumstances where H could reasonably anticipate that such would be transmitted to his former in-laws and relied upon by them. Comment - The point of this case is don't lie in your inventory and list debts that you know are discharged or barred; otherwise, you're just reviving a debt. I just love it when the sand bag falls on the sandbagger.

5. Brown v. Fullenweider, No. 09-97-519-CV, not yet published (CA, Beaumont). F represented B in a divorce. The divorce ended with an agreed decree dated 12/16/94. The parties signed an AID which was not filed with the T/C which provided that B would pay the atty fees he incurred in the divorce without specifically mentioning F or the amount B owed F. The decree approved the AID and ordered that "the parties shall do all necessary acts to carry out the provisions of the AID." 14 mos. later F filed a motion in the divorce T/C under the divorce docket number "to enforce the divorce decree and alternatively a motion to clarify." It seems that B refused to pay F the $97,000 atty fee bill ($79,000 fees & $18,000 expert fees). B filed a motion to dismiss pointing out that the divorce was not appealed & became final on 1/16/95 plus F was not a party to the divorce action so he had no standing to sue for enforcement of the divorce decree. (A lot of things happened at the trial level which I cannot explain or understand so bear with me). F responded claiming he was "a party affected by the decree" thus the divorce T/C had juris. to consider F's suit as a clarification and enforcement of the decree and, alternatively, F's motion should be severed from the divorce action. The T/C denied the dismissal, severed F's motion and gave it a new docket number. F filed a motion for S/J which the T/C granted & awarded F a $97,000+ judgment against B who appealed. CA affirmed holding:

1. § 9.001 says a party (emphasis mine) may request enforcement of the decree
2. Generally an atty is not a party to the divorce except with respect to the issue of his/her atty fees.
3. F was a party to the divorce for the purpose of collecting his fees from his own client by way of a motion to clarify and enforce.
4. Since the AID obligated B to pay his own atty fees and the decree ordered B & his wife to "do all necessary acts to carry out the provisions of the AID," the divorce decree ordered B to pay F the fees owed. The decree did award atty fees, i.e. F was awarded judgment against his own client (B) for F's atty fees.
5. Since the decree awarded an unstated amount of fees to B's unnamed atty (F), the T/C could "clarify" the decree to provide the name of the atty (F) to whom fees were owed and the amount of those fees.
6. This "clarification" was not a substantive change to the decree which is prohibited by § 9.007.

Comment - WOW! As much as I want attys to be paid, the Beaumont CA has, once again, drunk deeply from the Neches river waters. Finding that "clarifying" this decree to increase B's divorce obligation by $97,000 to a creditor not identified in the decree has just got to be a substantive change. Finding F to be a party to the divorce is ludicrous. If F & B had a falling out over fees within 30 days of judgment, could B appeal the "award of fees" to F even tho F isn't mentioned in the judgment? What appellate court (excluding Beaumont) would allow B to file an appeal against an unnamed party? Of course, if such an appeal was allowed, judgment in favor of F against B would be automatically reversed since F filed no pleadings requesting judgment against his own client in the divorce action (Kimsey, 965/690). Since there was no appeal, B can't raise this issue now. No one mentioned the ethical considerations. F had to have participated in the drafting of the decree which awarded F judgment against B. Ethical opinion 374 (Sept. '74) prohibits an atty from drawing a judgment for fees in the atty's favor against his client in the same proceeding where the atty represented the client. "A client should rightfully expect that no lawyer will secure a judgment against him in the very litigation in which he has employed the lawyer. To permit otherwise would be destructive of the lawyer-client relationship." Virtually every divorce decree provides that a client will pay all or a part of the atty fees owing to his or her own atty. If this case is good law, then a "stiffed atty just files a motion to" clarify/enforce in the original divorce action & obtains a judgment against his own client. This avoids having to file a new suit in a new court and gives a possibly favorable forum to the atty. This is great for the atty. I would not rely on this case and it should be reversed by the Supremes if they deem to hear it. Please read Ethical Opinion 374 before you file a clarification/enforcement motion to collect a judgment against your dead beat divorce client. Query - If F already has a judgment, he can't sue B in any other proceeding thus ignoring the divorce judgment. Does the 10 yr. S of L on judgment enforcement affect F's right to file for clarification after 10 yrs has past? Just how long can F wait to file for clarification? The 2 yr. S of L in § 9.003(a) doesn't apply. § 9.008 which authorizes "clarification" is tied to the concept that a T/C can clarify a portion of a decree so its enforceable by contempt yet F's atty fees don't relate to c/s or paternity so the fees will never support a contempt action so how can such a fee award be clarified under § 9.003(a)?

6. Havlen v. McDougal, 43 Tex.Sup.Ct.J. 14, not yet published. H joined the military in '52 and married in '53. H retired in '72 and divorced in '76. The divorce decree made no mention of H's military pension. In '96 W sued for her share of H's pension. H defended on the basis that the '90 amendment to the USFSPA precluded suit to divide a serviceman's pension unless the divorce was decreed after June '81 or the pre-'81 decree "treated" or "reserved juris. to treat" the pension. T/C dismissed W's suit and she appealed. CA reversed saying that since the pension was undivided, H & W became owners of the pension as tenants in common by operation of Texas law thus the pension was "treated" under Texas law. The Supremes reversed and rendered for H. The '90 amendment means what it says. The pre-'81 decree must "treat" or "reserve juris. to treat" the pension not general Texas law principles. Here the decree was absolutely silent and had no residual provisions thus W's suit was barred by federal law.