1. In the Interest of A.D., No. 09-99-197-CV, not yet published (CA, Bmt). H & W divorced in '74 & H was ordered to pay c/s of $160/mo. until his child became 18 (Nov., '90). In June '98 (7 2 years after the child's 18th birthday), the A.G. issued an adm. withholding writ to H's employer to collect $41,000 in accrued c/s. H moved to quash the writ claiming it was barred by the S of L. T/C quashed & the A.G. appeals. CA affirms. When H's child became 18 (Nov. '90), § 14.41(b) said the T/C "retains juris. to enter a c/s $ judgment (not to exceed 10 years) if a motion is filed within 4 yrs after the child becomes 18". Since the 4 yrs expired in Nov. '94, W's c/s claim became barred. H has a "vested" right to rely on the 4 yr. S of L as a defense. The post '94 amendment of § 14.41 (now § 157.005) which deleted any time limitation violates H's constitutional rights under Art. 1, Sec. 16 of the Texas Const. (no ex posto facto laws).
Comment - The various sections of the F/C on time to sue for accrued c/s have been amended so many times its hard to count. There's been a 10 yr. maximum recovery and an unlimited recovery which my be filed: (a) w/i 6 mos., (b) w/i 2 yrs. (c) w/i 4 yrs of the child's 18th birthday and (d) at any time (no time limit). There are 6 CA opinions on these time limits which hold that § 14.41 or § 157.005: (a) is not a S of L but only a jurisdictional limitation so no vested right arises (M.J.Z. 874/724; Sanford, 732/449; Digger, 981/445; Kuykendall, 957/907); or (b) is a S of L but no const. protection exists since only a $ judgment is involved, i.e. ex posto facto laws not involving jail time are o.k. (Wilbanks, 722/221); (c) is a S of L which grants a vested right so it can't be made retroactive (In the Interest of A.D.) or (d) is both a S of L and a jurisdictional statute (the concurring opinion in M.J.Z.). The bottom line is that there are 6 appellate opinions from 6 different CAs which all say different things which sometimes conflict with each other yet no one has filed a pet. for review with the Supremes to obtain a definitive answer. Maybe A.D. will clarify the law if the Supremes will grant review and give us the "true rule."
2. In re: M.L.P.J., No. 11-98-00121-CV, not yet published (CA, Eastland). A child was born in '87 and the bio. mother "gave" the child to W. The child lived with W & H for 10 yrs. with H treating the child as his daughter although the child was never adopted by H & W. In the '98 divorce between H & W, the T/C found that H had "equitably adopted" the child and ordered H to pay c/s. H appeals. CA reverses. Equitable adoption is a probate doctrine which has never been recognized or authorized in the F/C, thus H is not the child's parent and cannot be ordered to pay c/s.
Comment - It has always been the consensus opinion that "equitable adoption" doesn't exist in family law but this is the first case that says so.
3. Rivers v. Central and South West Corp., No. 98-31112, not yet published, 5th Cir. H & W married in '46. H went to work for the defs. in '52 participating in a retirement program. H & W divorced in Feb. '72 but no mention was made of H's community property retirement rights. H married W2 a few days later. H retired in '83 and started drawing his retirement pay until he died in '87. 10 years later ('97) W sued H's employer claiming 2 of H's retirement rights acquired during their 20 yrs while married and while H was employed by the defs. T/C granted S/J against W. 5th Cir. affirmed. ERISA allows a divorce ct. to divide a pension plan per a QDRO; however, if an employee spouse hasn't retired at time of divorce and no QDRO has issued prior to the employee's retirement, the employee's retirement benefits vest upon retirement and no QDRO can issue.
Comment - If there's a pension plan in a divorce, if you don't get a QDRO prior to retirement, you're out of luck. Does the word "malpractice" come to mind?
