 Gray's Interesting Cases - April 2003
 
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- Alsenz v. Alsenz, No. 01-01-00369-CV, not yet published (CA, Houston-1st). Prior to the parties' marriage, H owned several patents which produced royalty income during the marriage, some of which was saved and a lot of which was lost by H as he "day traded" the stock market. In the divorce trial, H claimed that the royalties from his patents should be considered as his separate property like oil and gas royalties as the value of his patents deplete as time goes by. W also claimed that the community should be "reimbursed" for the $ H lost "day trading." The T/C ruled for W on the character issue and also awarded her $35,000 as "equitable reimbursement" on the day trading. H appeals.
Part reversed and part affirmed. The CA held, in case of first impression, that income from patents is community property. I don't know why the CA did this but they went on further to say that income from separately owned "intellectual property" is community property. The CA also said, "We do not question the propriety...to reimburse the community for funds lost in the day trading" but reversed the $35,000 award for lack of evidence.
Comment - I don't fault this opinion on the community character of the patent income but why does the CA make the global pronouncement on all "intellectual property" when that issue isn't before the court? Altho my daughter is an expert on i.p., I'm not and there may be significant differences between patents, copy writes, trade-marks, etc. Additionally the CA's comment on the propriety of reimbursement is really out-to-lunch. Although the CA discusses the various "reimbursement" rules, none of them apply because losses in community investments or business ventures does not give rise to a "reimbursement" claim, equitable or not. Obviously the CA doesn't know what "reimbursement" means in a family law context. (Surprise, suprise Gomer). Do not use this case to claim "reimbursement" where one spouse loses money on a community investment or business venture, maybe a "waste" claim or breach of fiduciary duty theory or a factor justifying a disproportionate division but not "reimbursement." In the land of the blind, the one eyed man is king.
- Attorney Fee Sanction Enforceable by Contempt? In re Smith, No. 04-02-00360-CV, not yet published (CA, San Antonio). Farmers Ins. obtained an $88,000 judgment against S so it filed post judgment discovery against S attempting to discover assets to levy against. S didn't fully respond so in an enforcement action the T/C ordered S to comply and awarded Farmers a $1,500 judgement for atty fees as a sanction. S didn't pay so the T/C held him in contempt and ordered S to jail until he paid the $1,500.
S files mandamus which is granted. The CA held that even tho atty fees are imposed as a discovery sanction, they are still a debt which can=t be enforced by contempt. Why not? Ex parte Conway (843/765) says they are. Yes but Conway comes out of the 14th Houston CA thus is suspect. The true rule is set forth in Ex parte Dolenz (893/677) which prohibits collection by contempt.
Comment - Once again the contempt collectability of an atty fee sanction depends upon where the enforcement is sought -- Houston, go to jail; Dallas and San Antonio, go free.
- Andersen v. Andersen, No. 05-01-01801-CV, not yet published (CA, Dallas). Lisa and Julie were lovers for over 10 yrs. Julie had a child in '97. The parties broke up in '98 and Julie moved to Fla. with the child. Lisa paid for 1/2 of the child's living expenses and visited with the kid. Julie returned to Texas in '99 (I guess 'cause we're so liberal in these situations) but refused to let Lisa see the child. In June 2000, Lisa filed a SAPCR to have visitation rights which the T/C dismissed as Lisa had no standing to sue per §102.003(9) because she hadn't had possession and control of the kid for 6 mos. ending less then 90 days prior to suit. Lisa appeals claiming §102.003(9) is unconstitutional as it violates the open court. provision of the Tx. Const.
CA affirms. To claim rights under the open court doctrine, you must show 3 elements, one of which is that you have a well established common law cause of action. In this case, the only common law c/a Lisa could assert depended upon her being in loco parentis with the child which in turn requires the claimant to have the custody and control of the child at the time of filing suit.
Comment -- Note my politically correct approach to reporting this case which places great stress on my East Texas soul. Laudatory comments are expected as a positive reinforcement to my SNAG (sensitive, new age guy) demeanor.
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