 Gray's Interesting Cases - February 2002
 
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- Roby v Adams, No. 08-00-00080-CV, not yet published (CA, El Paso). H & W had 2 kids. After W died in 1998, H refused to allow the maternal grandparents (GP) to have any contact with his children so GP sued for grandparent access. In 1999 the T/C granted GP visitation of one weekend per month, 3 days at Christmas and 2 weeks in the summer (of course, no one mentioned E.C. Jr., 28/825, which prohibits grandparent possession). H appeals on factual sufficiency to support a finding that such visitation is in the kid's best interest. The CA reverses. After reviewing all the evidence and focusing on Troxel's holding that special weight must be given to a fit parent's decision regarding his/her children, the CA found that there was neither proof or pleading that H was an unfit parent. Since H was a fit parent he has a fundamental const. right to make decisions regarding the rearing of his kids. The CA also reviewed Austin's case of Lilley (43/703) and found that Austin had erroneously placed the burden of proving what was in the kid;s best interest on the parent, not the grandparent (a correct statement). Ultimately the CA held, "A grandparent seeking access... has the burden to overcome the presumption that a fit parent acts in the best interest of the parent's child to establish the best interest of the child prong of §153.433."
Comment - The bottom line is that in grandparent access cases, you have to allege and prove that the parent is unfit or the constitutional presumption is almost impossible to overcome.
- Boyd v Boyd, No. 2-00-218-CV, not yet published (CA, Ft. Worth). H & W were divorcing so they went to mediation were they settled with an irrevocable mediation agreement per §6.602 and §153.0071. The agreement divided their property and also had a residual clause which said that any property not disclosed would be owned 50/50 by the parties. The agreement also said that each party had made a fair and reasonable disclosure of the assets and debts know to them. Later W discovered that H had intentional concealed a $230,000.00 bonus. The total value of the estate was 10 to 15 million (you won't find this in the opinion but H's atty advised me). H moved to enter judgment on the agreement which the T/C denied and set the case for trial. The T/C found that H hadn't committed a fraud; however, since the agreement did not include substantial community assets or provide for visitation with the parties' child, the T/C set the agreement aside. After trial H appealed claiming the T/C erred by not entering judgment on the mediated settlement agreement. CA affirmed holding:
- §6.602 doesn't require a T/C to enter judgment on a settlement agreement that was obtained by fraud, duress, coercion, dishonest means or illegally.
- Although there was no fiduciary duty between H & W since they both had attys. (Parkers, 897/918), when a party states that he has made a fair disclosure of assets/debts, a duty does exist to make a full disclosure thus an intentional non-disclosure of a material fact subjects that agreement to be set aside (rescission).
- Intentional failure to disclosure substantial marital assets is grounds to set aside an irrevocable mediated settlement agreement.
Comment - The Pandora's Box has now opened. The agreement awarded W 50% of the $230,000.00 bonus so the only thing is issue was the remaining $115,000.00. Assuming the estate is worth $10,000,000.00 this is 1.15% of the total estate. Is this a "substantial" marital asset? If you want to set aside a mediated settlement agreement because something was not mentioned, the contesting party must prove that the other party "intentionally" failed to disclose and the non-disclosed item (asset or debt) was substantial. What is substantial in one case might not be substantial in another. What would have happened if the agreement has said any non-disclosed asset is awarded to the party not in possession or control of such? The CA's global statement that a mediated settlement agreement can be set aside by the T/C because of fraud, coercion, or duress is probably another example of a court engaging pen before thinking of the ramification of its statement. Maybe this is a ground for a B of R but I doubt if it's a basis to set aside a mediated settlement agreement. See Cayan, 38/161. All in all, this opinions is probably more harmful than helpful in divorce cases.
- McAlister v McAlister, No. 04-00-00604-CV, not yet published (CA, San Antonio). H & W lived in Texas for some time in G County. W then rented an apt. in B County and occasionally lived there. Assume that W lived in G County 90% of the time and in B County 10% of the time. More than 90 days after W rents her apt. in B County, W files for divorce in B County. After W's suit was filed, H files suit in G County. W files a plea in abatement in G County claiming the B County has dominate juris as her suit was filed first. Who wins? W. The F/C only requires that the Pet. be a resident of the suing county for 90 days prior to filing. It doesn't limit on the number of residences a person may have nor does it speak of permanent residence nor primary residence. A party may have multiple residences and can choose the county in which to file suit so long as he/she has a residence in that county.
Comment - Sounds strange but it's San Antonio logic. What you must do to establish a residence. What if you rent an apt. but never spend the night even though you are physically at the apt. a couple of hours a couple of days per week? §6.301(2) says at the time the suit is filed, either party must be "a resident of the county in which the suit is filed for the preceding 90 day period." To me that means a continuous resident (excluding short temporary trips out of town) up to date of filing. What if W moves to B County on Day 1 and rents an apt and stays there overnight or a couple of nights and then returns to G County for Day 3 to 89. On Day 90 she returns to her apt. in B County and files suit the next day. Is she truly a resident of B County at time of filing? Sorry folks this opinion is only good law in San Antonio and hopefully will be ignored in the rest of Texas.
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