1. McCann v. McCann, No. 14-97-01339-CV, not yet published (CA, Houston-14th). H owned a lot prior to marriage. After marriage the parties built improvements on the property which enhanced its value. At trial it was shown that everything paid toward the improvement (except $37,000) came from H=s sep. prop. Neither side submitted a jury issue on the character of the improvement funds or how much the property was enhanced by the use of such funds. The T/C awarded the property to H as his sep. prop. but subject to a community enhancement claim for $293,000 which was awarded to W. H appealed. CA reversed. The total am't paid to construct improvements is presumed to be community; however, this presumption was rebutted by H=s showing that all funds (less $37,000) expended were his sep. prop. When the community presumption is rebutted, W then has the burden to show how much the sep. prop. was enhanced by the $37,000 expenditure. Since she didn't submit a jury issue on this point her reimbursement claim was waived.
2. Ex Parte Ustick, No. 10-00-034-CV, not yet published (CA, Waco). H was ordered to pay c/s which he didn't do. The A.G. filed contempt. H was found to be $11,800 in arrears, he was held in contempt; sentenced to 180 days; and 'committed to the county jail.' H was to return the next day to start his sentence. Surprise, Surprise, H disappeared so a capias was issued. H was later arrested and sent to jail where he filed a H/C. CA freed H. Why? A contempt judgment has to: (1) find H in contempt and (2) there must be a commitment order. You can do 2 orders or combine them in one order but the 'commitment' order must order a Sheriff or other law enforcement offer to take H into custody and 'jail' him per the Ct.'s sentence. Here the order only 'committed H to jail for 180 days.' There was no order to a Sheriff, etc. to take H into custody thus H is held in violation of his due process. There's a contrary holding in Dotson (981/237) but Waco refused to adhere because the Supremes in Hernandez (827/858) said there has to be a direction to a Sheriff to take H into custody. Comment - You would think that the A.G. after doing tens of thousands of contempt orders could draft an enforceable contempt/commitment order but never underestimate the ineptitude of the A.G.
3. Zeolla v. Zeolla, No. 14-99-00121-CV, not yet reported (CA, Houston-14th). H & W divorced in '85 by agreed decree whereby W was awarded 100% of H's retirement, if, or and when H retires, if retirement occurs at 65. H took early retirement at 57 and started receiving $923/mo. which he didn't pay to W. When W found out that H had retired, she filed a motion to clarify so she'd get 100% of H's retirement whenever he retired. T/C issued a clarification order per W's request and awarded her a judgment against H for the retirement money he received to date of judgment. H appeals. CA affirms. Since this is a consent judgment, the law of contracts controls. The decree has a latent ambiguity in that there is no provision for what happens if H retires before 65. You then look to the intent of the parties and here the T/C found that the parties intended for W to have 100% of H=s retirement whenever he retired. The CA said you can use § 9.008(b) to clarify a decree containing a latent ambiguity and this order didn=t modify the decree. Comment - I don't mind the result but it seems to me that the CA is mixing apples with oranges. They use a contract law to find an ambiguity and then they use a statute to clarify. Seems to me that they are mutually exclusive. If you review the 'clarification' cases, you can find just about anything you want - there=s just no 'true rule' in these cases.
4. Seidel v. Seidel, 10 S.W.3d 365 (Tex.App. Dallas, 1999). H & W divorced in '96 with each being JMC of the kids. The kids' domicile was restricted to Dallas County. W was awarded a $38,000 judgment (atty fees incurred in the custody battle) against H which H didn't pay. Later H filed a motion to reduce his c/s. W filed a counter-motion requesting that the domicile restriction be lifted so she and the kids could move to Cal. so W could support herself and the kids as H's failure to pay the $38,000 had left her destitute. The T/C reduced H's c/s and provided that if H didn't pay the $38,000 to W by 9/1/98, the domicile restriction became void. H appeals. The CA found that at least part of the $38,000 should be construed as c/s since it was to reimburse W for part of the atty fees incurred to protect the kids' interests in the original custody fight. § 154.011 prohibits a T/C from conditioning visitation on the payment of c/s which is the effect of the T/C's ruling. Reversed. Comment - Without specifically saying so, the CA simply said a T/C can't use custody of, or visitation with, a party=s kids to coerce that party into paying a debt.
5. In re Riggins, No. 10-99-363-CV, not yet published (CA, Waco). H & W's child died under suspicious circumstances. The coroner ruled homicide. The local D.A. was investigating H & W as the prime suspects in the murder case. CPS took custody of the surviving child and the T/C appointed CPS as the child's temp. M.C. The T/C also ordered H & W to undergo a psychological exam by an agreed to shrink. H & W filed mandamus to set aside to set aside the shrink exam order claiming that if they didn't submit to the exam their parental rights could be terminated [§ 161.001(1)(0)] yet if they submitted to the exam they would be forced to abandon their constitutional rights against self-incrimination. The CA denied the mandamus, not because H & W didn't have a valid point but because you can't make a blanket assertion of your 5th amend. rights. The CA goes on to outline the procedure to be used if the examee thinks some shrink is about to violate his/her 5th amend. rights including the T/C having to determine if the shrink's questions 'might' invade the examee's 5th amend. rights. Comment - This is really an interesting case. Our trial courts order drug tests every day. I'm not a criminal lawyer but I think that consumption of illegal drugs is a crime (or at least possession and you have to possess to consume). If true, then compelling a person to take a drug test can be a violation of the party's constitutional right against self-incrimination. If you client smokes or takes dope and you think he/she will fail the test, why not use this case to screw up the drug test order? Interesting.
6. Hinsley v. Boudloche, No. 99-20626, not yet published, 5th Cir. In '89, H & W signed a partition agreement per § 4.102 where they divided most of their community property. The values of the property each spouse received is somewhat murky but it was clear that W wanted the partition because she was afraid that H would divorce her because he had a lover; this was a reconciliation effort; wife wanted income generating properties that needed no management; and she wanted the stock in her son's business so H's lover couldn't benefit from her son's success. H & W remained married but H filed for bankruptcy in '95. The bankruptcy trustee sued to set aside the partition agreement claiming that it was a fraud on the rights of creditors per § 24.005, et. seq. Tex. Bus. & Comm. Code. In an earlier trial the T/C found that H entered into the partition to defraud his creditors thus it was void as to H which the 5th Cir. affirmed but W wasn't a party to that suit. This suit involves the property partitioned to W. The T/C and the 5th Cir. found that the preservation of the parties' marriage was not a reasonably equivalent value given to H in exchange for the property he gave to W thus W's agreement to reconcile was a badge of fraud justifying a nullification of the partition. All property awarded to W in the partition agreement was still community property and now belongs to the trustee as a part of H's bankruptcy estate. Comment - No where in § 4.106 is it required that reasonably equivalent values be exchanged to have a valid partition agreement so this case can't be used by a spouse to set aside the partition but community creditors can attack the partition to recover against the respective partitioned sep. prop. of the spouse unless reasonably equivalent values are exchanged.
