 Gray's Interesting Cases - March 2007
 
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- Flores v. Cuevas, No. 2005-43269-CV, will not be published - memo opinion (CA, Houston - 1st).
M sued F for paternity of her 2 kids. F was served but failed to file an answer. At the default hearing, M testified that she only had sexual relations with F during any possible conception period and she had personal knowledge that F currently earns $3,700/wk. T/C found F to be the father of the kids and set c/s at $900/mo until the children reach 18 and awarded M $39,000 in retroactive c/s to be paid monthly in addition to the regular c/s. F files a restricted appeal (at this point I begin to wonder how a man smart enough to earn $192,400 a year could be so stupid as to not hire an attorney and file an answer).
CA affirmed as to paternity and the amount of $900/mo c/s but reversed and remanded on the issue of when c/s ceases and the amount of the retroactive c/s. §154.127 requires the T/C in multiple kid cases to adjust the c/s as each kid reaches 18, etc. which was not done here (until the kids reach 18 ---- which kid?) Additionally, M's evidence as to F's earnings was only as to the current income, not what he earned during the retroactive period. As there was no evidence on this point the c/a said the T/C abused its discretion in setting retro c/s in any amount above the presumed minimum wage guidelines which would total $9,100.00.
Comment - This is one of those cases where everyone but me deserves to be horsewhipped. F for failing to file an answer; the T/C for ending c/s when the kids become 18 and not using minimum wage on the retroactive; mostly M's attorney for failing to produce evidence of income during the retroactive period (if you don't have evidence, admit so and take the minimum wage presumption) and allowing the T/C to err on the termination of c/s (excuse me Judge we have 2 kids here so we have to consider what happens when the older kid becomes 18 - how about c/s of $900 until the youngest kid becomes 18?) and the CA for remanding the amount of retroactive c/s rather than rendering on this issue - M shouldn't be rewarded with a 2nd bite at the apple when she failed to produce evidence on this substantial point.
- Sooy v. Sooy, No. 04-06-00509-CV, will not be published - memo opinion (CA, San Antonio)
, H & W divorced on 05/16/06. On 05/22/06 H received $17,000 as an impairment income benefit from the workman's comp. department of the Tx insurance dept. resulting from an injury which occurred during the marriage. W filed a MNT claiming this $17,000 was community property not divided during the divorce. MNT denied and W appeals.
Affirmed. The impairment income benefit by statute is calculated upon H's earnings but the amount paid is paid for the impairment (injury) only and such is not a compensation for lost wages. See Tx Worker's Comp. Commn. v Garcia, 893/504/2.
Comment - As this is a case of first impression in family law, why didn't the CA order this opinion published? Well we don't want to overwhelm these attorneys with too much information.
- In the Interest of T.N.H, et al, No. 02-06-074-CV, will not be published - memo opinion (CA, Fort Worth).
H & W divorced in March 2000. In Oct. '01 W filed a motion to enforce the decree based on H's failure to pay c/s. H filed a counter-motion to reduce c/s. W's atty served H with requests for admissions. and production to which H refused to respond. W filed a motion for sanctions for discovery abuse which resulted in an order prohibiting H from introducing any evidence in support of his motion to reduce c/s. At trial, H offered evidence in support of his reduction motion. W objected and the T/C overruled thus allowing H to introduce evidence justifying the T/C's order reducing H's c/s from $1,800/mo to $675/mo. Upon overruling W's objection, W's atty correctly claimed surprise (I'd say dumbfounded shock) and requested a continuance. The T/C refused to rule on the continuance motion. W appeals the reduction.
Affirmed. The T/C erred when it entered the original death penalty sanction order without exploring other methods of forcing H to comply with W's discovery requests thus the T/C didn't err by ignoring its own sanction order and allowing H to introduce evidence in support of his c/s reduction motion. W didn't file an appellate point on the T/C's failure to rule on her motion for continuance.
Comment - W's atty did everything right when the T/C crawfished on the sanction order except demand a ruling on the continuance motion. A word to the wise - force the trial court to rule on your motions/objections. If you don't, then you're just wasting your time in making them in the first place. When you hear a judge say "Let's move on," that should be a red light to demand a ruling.
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