1. In re: Lambert, No. 04-98-00772-CV, not yet published (CA, San Antonio). Baby A was born & her parents (H & W)decided to give her up for adoption to a couple from VA. 3 days after the child's birth, the VA people took the child to a motel, H & W signed the various parental waiver papers so the child could be adopted (also to terminate H & W's parental rights). An adoption & termination suit was filed on Day 3 & a judgment was immediately signed terminating the parents' rights & ordering the adoption. Naturally there was no appeal. The VA couple stayed in the motel with the child for another 4 days (this way they conformed with the Interstate Compact on Adoption) & then left for VA with the child where they remain today. 5 mos. later H & W filed a B of R to set aside the Day 3 judgment. The VA couple filed a motion to dismiss claiming the T/C had no juris. to set aside the decree. The T/C entered a temp. order requiring the VA couple to produce Baby A in Texas. The VA people filed for mandamus to set aside the temp. order and for a writ of prohibition to prevent the T/C from proceeding on the B of R. The San Antonio CA granted the writ of prohibition thus dismissing the B of R by holding that:
- The Tex. UCCJA (§ 152.001, et. seq.) applies to a B of R seeking to set aside a termination/adoption matter.
- For a Tex. T/C to exercise its juris. under the UCCJA, Tex. must: (a) be the home state; or (b) there must be a "significant connection" to Texas; or (c) there is an "emergency"; or (d) there's default juris. or (e) Texas has "continuing juris."
- Texas was not the child's home state when the B of R was filed since Baby A hadn't lived in Tex. from birth nor was the child a Tex. resident for 6 mos. By the way VA wasn't the home state either since the child hadn't been in VA for 6 mos. thus we have a "home-stateless" child. § 152.003(a)(1)(A).
- Tex. had no "significant contacts" with the child since she had only been in Tex. for 7 days after birth with the remaining lifetime spent in VA. All substantial evidence regarding the child was in VA.
- There was no "emergency" juris. because the child wasn't in Tex.
- Default juris. only applies if there's no home state & no other state has "significant connections" with the child. Since the child's "significant connections" are in VA, default juris. doesn't apply.
- The T/C doesn't have continuing juris. of this case because, unlike a normal SAPCR order which may be subject to modification, a termination judgment is final & irrevocable - it's not subject to modification.
- Since H & W can't satisfy any of the 5 juris. grounds under the UCCJA, the T/C has no juris. to hear the B of R.
Comment - San Antonio has a reputation for writing and, unfortunately, publishing dumb opinions but this one (with the exception of Ex parte Lopez, 710/948) takes the cake. Unless something really spectacular happens, San Antonio will win the 1999 Stupid Dallas Appellate Opinion of the Year Award. San Antonio said that the termination judgment binds H & W until it is set aside by a B of R; however, we don't have juris. for a B of R because the termination judgment is binding on H & W. Huh? Remember the book Catch 22? Just because the child left Tex. before the B of R was filed, Tex. loses B of R juris. This is nuts. What if we had the same facts as this case but on Day 4 H & W changed their minds and wanted to attack the termination decree due to fraud, coercion, etc. but the VA couple learns of their intent so they kidnapped H & W at gun point. They kept H & W drugged until 31 days after the termination judgment is signed (thus avoiding the T/C's 30 day plenary power) & then release them. Ignoring the criminal charges, according to the San Antonio CA, H & W are up the creek as they can't satisfy the Tex. UCCJA juris. requirements. That's bull! This opinion is wrong & I hope someone takes it up unless San Antonio comes to its collective senses and writes an Oops opinion reversing itself.
2. Slaton v. Slaton, No. 14-96-01422-CV, not yet published (CA, Houston-14th).
During marriage W underwent a surgery where the Dr. left a sponge in her which caused tremendous problems including permanent sterility. H & W sued the Dr., et al. W claimed physical impairment, pain, suffering, lost earnings, past and future medical expenses. H claimed mental anguish, depression and loss of consortium. The p.i. case was settled for $450,000 net of atty fees without segregating the damages. Divorce filed. H & W stipulated as to how much of the damages was attributable to lost wages & medical expenses. The problem was that there was a large pot of money left which was either H's sep. or W's sep. prop. or some of each but there was no segregation in the p.i. case. What do you do? W produced substantial evidence of the actual damages suffered by her and H produced luke warm evidence of his damages. T/C ruled that after deducting lost wages & medical expenses, the remaining money was W's sep. prop. H appealed. CA affirmed. W proved by clear and convincing evidence that she suffered sep. prop. damages but H failed in his proof of sep. prop. damages thus W wins by semi-default.
Comment - Interesting way to prove a sep. prop. claim.
3. Roberts v. Healey, No. 14-96-01306-CV, not yet published (CA, Houston-14th).
W was married to a violent crazy man. W filed for divorce. She told her atty. about H's violent nature and his continuing threats, harassment, etc. W's atty filed for a TRO (and presumably a temp. order) to keep H away from W and her kids. After add'l violence on H's part, W's atty obtained an aff. from W presumably to support an application for a protective order but the atty. didn't file for a protective order, he didn't get the TRO signed nor did he set a hearing for temp. orders. H kidnapped W & took her to where the kids were being looked after by W's mother. H then shot his mother-in-law, killed his 2 kids & then committed suicide. W and her mother then sued W's atty for negl. & violation of the DTPA for failing to obtain a protective order during the time the divorce was pending. T/C granted the atty's motion for S/J. CA affirmed. As a matter of law, the atty's failure to obtain a protective order even knowing the violent nature of H was not the proximate cause of W's and her mother's damages (physical or emotional) under the DTPA or any negligence theory.
Comment - This is probably legally correct but is awful hard to condone the atty's failure to take appropriate action to at least attempt to protect W and her kids.
