1. § 9.001 says a party (emphasis added) may request enforcement of the decree
2. Generally an atty is not a party to the divorce except with respect to the issue of his/her atty fees.
3. F was a party to the divorce for the purpose of collecting his fees from his own client by way of a motion to clarify and enforce.
4. Since the AID obligated B to pay his own atty fees and the decree ordered B & his wife to "do all necessary acts to carry out the provisions of the AID," the divorce decree ordered B to pay F the fees owed. The decree did award atty fees, i.e. F was awarded judgment against his own client (B) for F's atty fees.
5. Since the decree awarded an unstated am't of fees to B's unnamed atty (F), the T/C could "clarify" the decree to provide the name of the atty (F) to whom fees were owed and the amount of those fees.
6. This "clarification" was not a substantive change to the decree which is prohibited by " 9.007.

After taking judicial notice of the distance between the Beaumont. CA's courtroom and the Neches river, the Supremes ruled that the divorce decree did not award F a judgment against B, it only allocated debts responsibility between the spouses the same way making B assume his car lease obligation did not award the leasing company a judgment against B. § 9.001, et seq. only provides for enforcing and clarifying property divisions between spouses. A fee dispute between a spouse and his/her atty is not an issue to be resolved under § 9.001. The divorce T/C had no juris. to consider F's fee suit against B.

Comment - Told ya!

2. Egelhoff v. Egelhoff, No. 99-1529, not yet published, U.S. Sup. Ct. H & W divorced in Washington state in April '94 and H was awarded all of his ERISA employment benefits including a $46,000 life ins. policy under which W was the beneficiary. 2 mos. later H died before he changed the beneficiary under the ins. policy. Washington has a statute similar to our statute (§9.301) whereby the divorce automatically removes the ex-spouse as the bene. under any life ins. policy awarded to the other spouse. H's kids sued to recover the $46,000 and the Washington Sup. Ct. ruled that their state statute did not conflict with the ERISA rules so ex-w got zip as she had been removed as H's ins. bene.

The Big Supremes reversed. ERISA binds the administrators to follow the ERISA rules so insurance proceeds are payable to the named bene. even if its an ex-spouse whose status as a bene. is negated by divorce under state law.

Comment - Does this affect our §9.301. Yessiree Bob. §9.301 doe not apply to an insurance policy issued under a ERISA plan. If your client has an ERISA ins. policy tell him/her in writing to run to his plan adm. and file a change of bene. form. The same is true for any other ERISA benefit plans as this case will also apply any to other financial plans despite what §9.302 says. If you don't do this, call your malpractice carrier.

3. Sun Life Assurance of Canada v. Dunn, No. H-00-245, not yet published, U. S. Dist. Ct., Houston. H & W divorced in '96 and H was ordered to pay additional c/s for his disabled child by maintaining $200,000 in life insurance on himself payable to the child as an irrevocable bene. with W as the child's trustee. H was to furnish W with written proof of the existence of such ins. and bene. designation by Dec 31st of each year. H designated child as the bene. (not an irrevocable bene) under his ins. and furnished the required proof each Dec. 31st but he forgot to tell W or her child that on Jan. 1st he then changed the bene. to G (I assume new wife) so G was the bene. 364 days of each year. H died on Sept. 29, 1999, with G as the bene. W, on behalf of her child, made a claim against the ERISA life ins. policy. The ins. co. interplead the proceeds into the Ct's registry. G claimed that ERISA made the ins. proceeds hers. W disagreed but also argued that if G prevails, G should be designated as constructive trustee for the child's benefit. The T/C didn't have the benefit of Egelhoff so it used prior federal case law to hold that federal common law may be guided by state law where an ERISA interpretation is not conclusive. The T/C (David Hittner) then analyzed the constructive trust theory and found that G holds the proceeds as trustee for the child's benefit (a well written and scholarly piece on constructive trusts worth your reading).

Comment - Does Egelhoff change this opinion? I don't know but equity says the child should prevail. If Egelhoff makes the proceeds go to G, does it prohibit the imposition of a constructive trust upon proof of a breach of trust or fraud coupled with an unjust enrichment? Keep tuned in for further developments.

4. Gill v. Gill, No. 10-00-163-CV, not yet published, (CA, Waco). During marriage W's parents gave her a house. H & W then borrowed $40,000 from a bank putting up the house as collateral. The $40,000 was commingled with their other funds. At time of divorce, H proved that at least $23,500 had been spent to make improvements to W's house and reduce the $40,000 loan. Maybe $5,000 was attributable to house improvements (kinda vague on this point). T/C found that the community had a $23,500 reimbursement claim against W's sep. prop. house (the opinion doesn't say so but I guess the T/C awarded H all or part of the $23,500 as a lien against W's house) so W appeals.

CA reverses. The $40,000 was a community debt so you can't give reimbursement for using community funds to pay a community debt. The evidence showed that the house was worth somewhere between $65,000 and $70,000 at the time of the gift and between $57,500 and $62,500 at the time of divorce thus there was a negative "net enhanced value." Guess what - under either §3.401 or 3.402, you can't have reimbursement unless you have a positive "net enhanced value."

Comment - Why report this case? Besides being another Waco case where the T/C seems to have difficulty understanding family law, this is the first appellate case that defines "net enhanced value" for an equitable interest claim as "the value of the property on the date of marriage compared to the value of the property on date of divorce."

5. Ex parte Jones, 36 S.W. 3d 139 (Tex. App. Houston 1st, 2000). H & W were divorced in '96 and H was awarded custody of the parties' child with W having visitation. W took the child in '97 and refused to return the kid to H so he filed contempt. The T/C found W in contempt and sentenced her to jail until such time as she caused the child to be returned to H (coersive). The T/C said that after the child was returned, it would consider what other punishment would be assessed against W (punitive/criminal). 18 days after W went to jail the child miraculously appeared. No further action was taken in the contempt proceeding. Later W was indicted for the criminal offense of interference with child custody. W filed a motion to dismiss the criminal charge claiming double jeopardy (5th Amend) as she had already been to jail under the contempt sentence. The T/C dismissed so the D.A. appealed. Reversed. Double jeopardy only applies where a criminal sentence is imposed in the contempt action. Here the sentence was coersive which is civil thus no criminal sentence was imposed which prevented W from being indicted on the criminal charge of custody interference.

Comment - Just who did H know in the Harris County D.A.'s office to have criminal charges filed? This happens all the time but the D.A. never gets involved.

6. Just keep lookin' - there's a case to support you. In the Interest of R.D.Y., No. 01-99-01073-CV, not yet published, (CA, Houston - 1st). In '96 M (an atty) filed a paternity action against F who was found to be the child=s father. M was made sole M/C of the child with F as P/C (I don't know if M's mother (GM) was in the paternity action). In '97 F filed for modification so he could be the child's M/C and GM intervened requesting custody. After trial, the T/C made all 3 joint M/C's of the child with GM being primary having the right to determine domicile/residence. M had the right to have possession of the child "at times mutually agreed to in writing and in advance by M & GM and absent mutual agreement, subject to the sole discretion of GM to determine that M is mentally and physically capable of properly exercising her visitation with the child." M appeals claiming that this order is an abuse of discretion as it deprives her of any visitation with her child. CA affirms finding no abuse of discretion.