1. In the Interest of W.J.S., No. 14-99-00429-CV, not yet published (CA, Houston - 14th). H & W divorced in 1985 with one child (WJS) and W was the M/C with H paying $300.00/mo. c/s. H moved to Kentucky and in 1993 W moved to Louisiana after abandoning WJS to her mother (GM). In 1998 GM filed a motion to name her M/C of the child to which H filed a general denial. While this was pending, GM filed a motion to enforce the $73,000.00 in c/s which H hadn't paid (of course no one raised the issue of GM's ability to do this as the c/s was ordered to be paid to W who is mysteriously missing from this opinion). H responds with a special appearance. While all this is going on GM files a suit to terminate H & W's parental rights and for adoption of WJS - a different cause number. Although the opinion isn't clear, apparently GM's adoption and termination suit was granted. Then the T/C dismissed GM's modification and enforcement motions on the basis that: (1) GM had adopted WJS and (2) H was a resident of Kentucky so Texas has no juris to enforce the c/s. GM appeals.
CA reverses holding:
- Texas retains c/s enforcement juris. per §155.002 and §157.005. Also see Cannon (993/354)
- The adoption did not terminate H's c/s obligation which accrued prior to the adoption (Walker, 533/87)
- GM, now as WJS's mother, may sue for the accrued c/s (citing Walker)
- GM has the right to sue H for the necessaries she furnished to WJS between 1993 and the adoption.
Comment - The CA was close but no cigar. Although the T/C erred by dismissing the contempt because H lived in Kentucky, the dismissal was correct as GM wasn't the obligee in the c/s order. H couldn't be held in contempt for failure to pay c/s to W as W didn't bring the enforcement action, i.e. the T/C's error was harmless. The CA's reliance on Walker to say GM could seek c/s enforcement is misplaced as the person seeking enforcement in Walker was the original obligee in that c/s order. A huge difference. I suspect no one pointed this out to the CA otherwise how could the CA be so mistaken. Is GM out the window on her claims against H? No. She still has a suit for necessaries furnished but this is a separate suit under a new cause number. Bottom line - the T/C's actions were correct but for the different reasons and the CA's reversal was wrong probably because no one told them the correct law.
2. Judkins v Davenport, No. 07-00-0095-CV, not yet published (CA, Amarillo). This is not a family law cause but it's important to you. J filed suit on the last day before the S of L ran by mailing the petition to the District Clerk; however, the zip code for the addressee was wrong and the petition was delivered more than 5 days after mailing. Rule 5, TRCP, says if you file something with the clerk by mail properly addressed and its received within 5 days of mailing, its deemed to be filed as of date of mailing. T/C ruled that not have a correct zip code makes the mailing improperly addressed so the filing was barred by the S of L.
CA reversed. A zip code is not a necessary part of an address thus failing to put in the zip code or putting in a wrong zip code does not negate the "properly addressed" portion of Rule 5.
Comment - The phrase "properly addressed" is also used in Rule 21a so if you want to jack somebody around, just send your discovery responses without a zip code and see what happens. This case may be legally correct but it ignores the reality of life when dealing with postal clerks.
3. In re: Boyd, No. 2-00-341-CV, not yet published (CA, Ft. Worth). H & W divorced by judgment signed on June 12, 2000. On June 26, 2000, H perfected his appeal. On June 28, 2000, W filed a motion for temp orders pending appeal including reasonable appellate fees. As H had filed a supersedeas bond, W couldn't have access to the property awarded her in the divorce and H controlled everything. On July 7, 2000, the T/C started a hearing on W's request but recessed the hearing on its own motion. 12 days later W filed a motion to resume the hearing advising the T/C that per §6.709 if the T/C didn't render its decision on temp. support, etc. within 30 days of perfecting the appeal, the T/C loses juris. to do so. The T/C didn't resume the hearing until August 13, 2000, and 5 days later signed an order whereby H was ordered to pay W $122,000.00 as interim atty fees by Sept. 2. H didn't pay so W filed an enforcement action. H then applied to the CA to suspend all actions on the interim order and to negate same.
CA set aside the T/C's interim order. §6.709 is the exclusive authority to grant interim relief and the T/C must render its interim order within 30 days after the appeal is perfected or the T/C loses juris. to do so. Here the T/C didn't render its ruling until 56 days after appeal perfection. W loses big time.
Comment - Terrible, just terrible. I would normally rant and rave about this judge's ignorance of the law especially since W's atty filed a motion to advise the judge about the precarious position in which W was placed by the judge's inaction; however, this was a visiting judge and I'll bet she didn't receive actual notice of the time problem. Whose fault was this mess? Did W's atty fail to give actual notice to the visiting judge? Did the ct. clerk fail to advise the visiting judge? Why didn't the elected judge step in if the visiting judge was unavailable? Why didn't W's atty file a mandamus to force the judge(s) to take timely action on W's request? Bottom line - if there's an appeal and a request for interim relief, act quickly and force the T/C to render a timely decision.
4. In the Interest of Walters, No. 06-00040-CV, not yet published (CA, Texarkana). Jury trial where H was designated the sole M/C of his 5 yr. old son. Because W was a drunk and a possible danger to her child, the T/C found that a SPO wasn't in the child's best interest but it did make W a P/C with the right to have possession of the child "at all times mutually agreed between the parties." W appeals claiming that the T/C abused its discretion as it effectively deny her any possession of, or access to, her child.
CA reversed. If a T/C designates a parent as a P/C but decides that a SPO is not proper, the T/C must: (1) make an order that restricts possession/access to eliminate any danger to the child or (2) deny any possession or access. Because appointing a parent a P/C implies that the parent isn't a danger, a complete denial of access/possession would be very rare happening. Here conditioning W's visitation at the whim of H is inappropriate (see Roosth, 889/445) since the T/C appointed W a P/C. Case reversed so the T/C can fashion a visitation order that protects both W and the child.
Comment - Basically any order that provides for visitation "per mutually agreement" is reversible on appeal. This is not to say the parties can't agree to such an arrangement but it is immediately subject to modification if the parties can't agree to a visitation schedule.
