Houston Bar Association - Family Law Section

Gray's Interesting Cases - March 2004

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  1. In re. Sanders, No. 05-03-01678-CV, will not be published - 2004 WL260568 (CA, Dallas). H&W are divorcing with custody in issue. H doesn't have much money so he retained an atty who agreed to represent him upon H becoming her at night/weekend hand-man doing carpentry and odd jobs for her in exchange for her legal services. W's atty filed a motion to disqualify H's atty which the T/C denied.

    W filed a mandamus which the Dallas CA granted. Disciplinary Rule 3.08 prohibits an atty from representing someone if the atty knows the atty may be a witness necessary to establish an essential fact. Here H's atty is also H's employer (gimme a break) and might have to testify as to H's ability to care for the child or pay c/s.

    Comment - It's always reassuring to know that the Dallas CA can be relied upon to issue truly stupid opinions like this. There's no violation if there's no SAPCR issue or if the "in-kind" services are to take place after the representation ends. What's really sad is that the 3 Dallas justices think this case doesn't establish new law or apply existing law to novel fact situations likely to occur in the future; therefore, it's a memorandum opinion. Wake up Dallas and smell the coffee - this happens all the time. This opinion is just another Dallas CA opinion which should be ignored.

  2. In re. Flores, No. 01-03-00641-CV, not yet published (CA, Houston B 1st). H filed a motion to modify during which the T/C ordered H to pay interim atty fees to W which H didn't do. Upon being so advised the T/C refused to go to trial until H paid the interim fees. The T/C recognized that Baluch v. Miller (774/299/2) says you can't coerce payment of an interim atty fee award by refusing to go to trial but this is a Dallas CA opinion (with all that this implies) thus it isn't binding on a Harris County T/C.

    H files mandamus which is granted. You're right, Judge, Baluch isn't binding on you but H's constitutional rights to access to the cts under the due course of law is binding. For once the Dallas CA got something right thus the reasoning in Baluch is adopted by the Houston CA.

  3. Travis v. Coronado, No. 2-03-023-CV, not yet published (CA, Ft. Worth). W filed for divorce and had H served. In response H filed a pro se, hand written, statement that he "agreed with the dvorce (sic)." With no further notice to H, W proceeded to obtain a default divorce, kid custody, c/s, etc. H filed a MNT which the T/C denied and H's appeal follows.

    Reversed. When H filed his "agreed with the dvorce (sic)" statement, this constitutes an answer but it's not a waiver. H's handwritten response put in issue all SAPCR matters and the property division.

    Comment - Duh! Gosh I didn't know you had to give notice of trial to a party who has filed an answer. Boy, I can see why the T/C denied H's MNT as these trial thingies sure slow matters up and clog the T/C's overloaded docket.

  4. Ulmer v. Ulmer, No. 14-03-00125-CV, not yet published (CA, Houston - 14th). H & W divorced in '01. Later H started harassing W so she filed a motion for a protective order which was granted. H filed an appeal and W moved to dismiss as a protective order is an interlocutory order.

    Affirmed. After reviewing most of the protective order appeal cases, the CA held that AA protective order issued outside an ongoing proceeding should be subject to appellate review.... thus negating its contrary opinion in Maharaj (1999 WL 11274).

    Comment - Altho I applaud the 14th CA for reversing its position, I am troubled about limiting appeals to those protective orders issued outside an ongoing proceeding. What if the pending action is for c/s modification only but a "no violence" protective order is issued. Why can't this be appealed? The true rule should be "A protective order issued outside an ongoing proceeding which is not reasonably and relevantly connected to the issues raised in the protective order should be subject to appellate review."

  5. In the Matter of the Marriage of Clark, No. 07-02-0285-CV, not yet published (CA, Amarillo). In '88 the T/C signed a consent divorce decree which provided that H would sign & deliver a p/n to W in the principal amount of $240,000 bearing 7% interest payable in installments over a period of years. After H paid W $240,000, he refused to pay anymore as he and W had agreed that this note would not bear interest (despite 3 documents signed by him whereby he agreed to 7% interest on the $240,000). W sued for the balance of the note. A jury found that H had been been fraudulently induced into signing the p/n and nothing was due W. W appeals.

    Reversed. The T/C (and jury) had no juris. to delete the 7% interest provision of the decree as to do so would be modification of an unambiguous decree which is prohibited by §9.007(a).

    Comment - Used to be that these collateral attacks were prevented by Peddicord (522/266/2) but this is a new way to nip these defenses in the bud.