CA reversed. H maintains that W is only entitled to 50% of the pension as it existed in '80, not 50% of the increases due to his post divorce efforts. The CA construed the '80 decree to find that the T/C only divided the "community" portion of the pension as it existed in '80, not the post divorce increases. Although the portion of the decree which actually awards W 50% of the pension doesn't mention "community", previous paragraphs clearly indicate the T/C's intent to only divide that portion of the pension which had accrued during the marriage.

Comment - Probably an equitable result but only because the decree specifically mentions the T/C's intent to divide only the community. Without this language, W would have gotten 50% of the entire pension including the post divorce increases.

2. Eris v Phares, No. 01-98-01218-CV, not yet published (CA, Houston - 1st). I am not going to recite all the facts of this case as they are too long and convoluted but if you have a common law marriage case, this is required reading. The jury found a common law marriage. The appeal argued that the facts were legally and factually insufficient to support the jury's findings.

The CA found that the facts were legally sufficient to support the verdict but were factually insufficient - a rare bird in the appellate world.

3. Loftis v Loftis, No. 06-00-000049-CV, not yet published (CA, Texarkana). In '93, prior to marriage, W paid $33,000 to pay off the mortgage on H's house. H & W married a few weeks later and moved into the house which was their marital residence until '98 when they separated and a divorce was filed. W requested reimbursement which the T/C denied because you can't have reimbursement for payments, etc. made prior to marriage but the T/C awarded W a $35,000 judgment based upon a resulting trust theory which the T/C suggested to W. The T/C, over H's objection, granted W's trial amendment which plead for a resulting or constructive trust.

CA reverses and renders. A resulting trust only occurs when a party pays purchase money and title is taken in another party's name. Here H already had title and W didn't pay anything towards the original purchase price. A constructive trust arises to remedy a wrong usually based on fraud. There was no evidence of fraud here. W paid off the mortgage of her own free will with no coercion or fraud on H's part thus no constructive trust.

Comment - We know that a fiduciary relationship can arise between parties about to marry. If there was evidence produced (and there wasn't in this case) to support a fiduciary relationship coupled with representations by H that W would have an interest in the house if she paid off the mortgage, a different result may have occurred.

4. Wilson v Wilson, NO. 2-00-207-CV, not yet published (CA, Ft. Worth). H & W divorced after 30 years of marriage. The T/C divided the parties' property and award W a $7,100 judgment against H for W's atty fees. H appeals the atty fee award as the F/C doesn't allow an award of atty fees in a non-SAPCR divorce case.

CA affirmed. True - there are only 7 incidents where the F/C authorizes the award of atty fees (sale of homestead; temp orders; temp orders upon appeal; enforcement of property division; post-divorce property division; SAPCR temp orders; and SAPCR proceedings); however, the T/C may consider atty fees in making a just and right division of the parties' estate. Here the T/C prefaced the atty fee judgment with the magic phrase "...to effect an equitable division of the estate of the parties..." so the atty fee judgment is o.k. as it was an factor in the property division.

Comment - In every non-SAPCR divorce case where atty fees are granted, you have to use the magic words in the decree (or at least in the fact findings) or you're begging for a reversal.

5. Enforcement of divorce judgments pending appeal.

1. English v English, No. 14-00-00093-CV, not yet published (CA, Houston - 14th). H & W divorced in '98. The decree granted each party the option to buy out the other's interest in the homestead within 180 days from the signing of the decree. H appealed without supersedeas bond but his appeal was dismissed. Within 180 days from the appeal dismissal (but more than 180 after the decree was signed), W attempted to exercise her purchase option but H refused to sell. W filed an enforcement proceeding which the T/C granted. H appeals again.

   CA reverses. §9.007(c) bars a T/C from implementing or clarifying a decree regarding property pending an appeal. Does this abate the option period until the appeal is resolved? NO! Since no supersedeas was filed, all provisions of the decree are effective until reversed thus the option expired 180 days after the date of the decree. Was the case rendered? NO! Since an option can be extended by agreement and everyone in this case, including the judge, thought §9.007(c) abated the option period, the case was remanded to see if there was an agreed extension.

2. In re: Taylor, No. 10-01-003-CV, not yet published (CA, Waco). H & W were divorced in 2000 while H was serving 40 years for murder. H was appointed P/C of his kids and W was ordered to supply H with various records concerning the kids and she was ordered to consult with H before making any decision regarding the kids' health, education and welfare (supply your own comment about the idiocy of this provision). H appealed the divorce but made no complaint about this portion of the decree. Needless to say W didn't comply so H filed contempt. The T/C denied H's contempt motion on the basis that since the appeal was still pending, it had no juris. to enforce same. (see Boniface, 650/776 and Schultz, 810/738).

   H filed mandamus which the CA granted. Since the portion of the decree sought to be enforced by contempt is not subject to the appeal, its enforceable by the T/C (see Bivins, 709/374 and Sullivan, 719/239). Another victory for the Huntsville jailhouse lawyers.

   Comment - with all due regard to all the recent CA cases approving T/C enforcement of a decree pending appeal, I don't see how you can wire around the Supremes' holding in Boniface which prohibits such.

6. Osteen v Osteen, No. 14-99-01298-CV, not yet published (CA, Houston - 14th). H & W ceremonially married in '62 and divorced in a Galveston dist. ct. in '84. A few months later H & W moved in together and stayed together until '96 when W filed for divorce in the same dist. ct. claiming a common law marriage. This suit was DWOP when neither party appeared for a pre-trial conf. In '97 W filed for divorce in Galveston County Court of Law No. 1 claiming a common law marriage. Although served, H didn't file an answer so the T/C granted a default divorce but never signed a decree. Later the county ct. discovered that H & W had been divorced in '84 so it set aside the default and dismissed W's '97 action on its own motion (why this was done is beyond me - local custom?). W appealed and the dismissal was reversed in '99 so W could proceed on her claim of common marriage after the '84 divorce (999/28). Upon retrial (July '99) W was again granted a default judgment (H still hadn't filed an answer) plus a QDRO dividing H's pension. Apparently H learned of the default when the QDRO was served, thus awaking from his Rip Van Winkle sleep, so he filed an appeal.

Guess what? Reversed. Apparently W presented no evidence to support her claim of common law marriage but the T/C granted her a default divorce anyway. The 3 page transcript was devoid of any testimony on the elements of a common law marriage.

Comment - Even in Galveston County if the opposing party fails to file an answer or make an appearance, the Pet. must present evidence of a marriage and grounds for divorce. Fair warning: (1) if you plead it, prove it and (2) stay out of Galveston County - they're a world unto themselves.

7. In re: Pierre, No. 08-00-00501-CV, not yet published (CA, El Paso). H was ordered to pay c/s for his child (paternity action) but he didn't so the mother filed for contempt. The T/C found H in contempt, found $7,200 in arrears, presumably sentenced him to jail, and then placed him on community supervision (probation). Part of the terms of probation was that he: (1) report his change of address to his probation officer; (2) submit to drug test and pay for such; (3) work faithfully at suitable employment as far as possible; (4) remain in Midland County; (5) support all his dependents; and (6) obtain drug/alcohol counseling. H filed H/C claiming that the T/C had no authority to make (1) thru (6) a part of his probation terms as §157.211 is an exclusive listing of the terms of a community supervision order.

CA agreed that (2) on drug testing is not authorized under §157.211 so the order is reformed to delete that requirement; however, everything else is affirmed.

Comment - Hello. (1), (3), (4), (5) and (6) aren't authorized either so how can the CA affirm those provisions? Because - that's why. I would have to have the ct's definition of "work faithfully", "suitable employment" and "as far as possible".

8. In the Interest of T.T. and K.T., No. 01-00-000233-CV, not yet published (CA, Houston -1st). Here's another Galveston County case which supports my previous comment. H & W had a couple of kids which H was abusing so CPS filed a termination case against H & W. Apparently prior to a temp. hearing, the T/C sent the parties to mediation attempting to resolve certain temp. issues and this resulted in a mediated Rule 11 agreement which was incorporated into a temp. order. The mediator made finding in the mediated agreement (only in Galveston do mediators make findings - a different approach from the mainland) that H & W were a danger to the health and safety of their children; there was an urgent need to remove the kids from H & W; and all efforts to protect the children had failed thus there was a substantial risk of continuing danger if the kids were returned to H & W. The T/C also made similar findings in the temp. order. Upon jury trial, the T/C allowed the temp. order and the mediated agreement to be admitted into evidence and viewed by the jury. Surprise, surprise, the jury terminated H & W's parental rights.

W appeals and the CA reversed saying:

1. The temp. order was hearsay and inadmissible - Rule 802, T.R.E.
2. Admitting the temp. order is the same as the presiding judge testifying in the trial she=s conducting which is prohibited under Rule 605, T.R.E.
3. The hearsay exception in Rule 803(8)(c), T.R.E. doesn't overrule Rule 605.
4. The mediation agreement was inadmissible as its admission violates the confidentially rule in §154.073(a) and (b) of Tex. Civ. Proc. & Rem. Code even though it was in the form of a Rule 11.