F and M are Mexican citizens who were lovers. F lived in Mex. & M lived in San Antonio. M gave birth to R. F had numerous business interests in Mex & Colo. which were quite profitable. When F & M split the blanket, M filed various suits against F, one of which is this paternity action. F was personally served with citation when his plane landed in Texas for refueling on the way to Colo. A pre-trial conf. was scheduled where F filed a special appearance claiming that Texas had no juris. over him. The T/C denied the special appearance and proceeded to hearing. F (thru his atty) stated that he would never take a blood test so the T/C judicially declared F to be R's bio. father; ordered temp. c/s of $6,060/mo; ordered retroactive c/s of $43,000 (from filing of suit to date of signing the temp. order); plus interim atty fees. Final trial was later held in which M was awarded judgment against F for the c/s, etc. awarded in the temp. order (F didn't pay) plus M was awarded a judgment for $1,000,000 lump sum c/s ($6,300 x number of mos until R reached 18). The decree further ordered F to pay all uninsured medical expenses for R and "... the reasonableness of the medical expenses shall be presumed upon presentation of the bill to F. ..." F appealed everything. CA reversed and affirmed in part holding:

1. Personal service on F in Texas, in transit, grants Texas personal juris over F per § 102.011(b)(1) and Burnham v. Superior Court (495 U.S. 604).

2. The $43,000 retroactive c/s in the temp. order was o.k. Even tho it was a temp. order, the temp. order made a final determination of F's parental obligation. See § 160.005 and Goheen v. Koester (794/830).

3. F argued that the decree provision whereby "the medical expenses are presumed to be reasonable upon presentation of the bill" is, in effect, a shifting of the B of P on any later enforcement proceeding. The CA rejected this argument saying this phrase merely clarifies F's c/s obligation and doesn't shift the B of P.

4. The T/C erred in awarding the $1,000,000 lump sum c/s judgment against F for the full monthly am't of c/s ($6,300/mo) over R's minority without discounting the award to a present value. Reverse to apply an appropriate discount factor.

Comment - The CA's explanation that the "reasonableness presumption" doesn't seem to have much foundation especially since the decree wording does shift the burden. Saying it doesn't cause a shift isn't logical. I wouldn't rely on this point. The CA's finding that you have to discount a lump sum c/s award to present value is a statement of 1st impression using a contract damage case to support the c/s statement. I don't know if it's good law but it is definitely the only law directly on point.

2. Ward v. Williamson, No. 08-97-00346-CV, not yet published (CA, El Paso).

H filed for divorce. W was represented by an atty and 2 CPAs. During pendency H misrepresented to W the value of the community estate. H also told W that if she didn't accept his settlement proposal, he would give her 100% of the community estate (including debts) which he knew would hurt her as she couldn't handle the pressure. Divorce was granted per H's proposal. No appeal filed. A year or so later W filed a B of R to set aside the property division. T/C granted H's motion for S/J. CA affirmed. H's value misrepresentation is not "extrinsic" fraud which will support a B of R. As W knew of H's "threats to give her 100% of the community estate" before the divorce, she had the burden in a B of R action to show she had a good excuse for not exhausting her legal remedies (i.e. filing a MNT) before filing her B of R. Since she didn't file a MNT, her own negligence prevents her from filing a B of R.

Comment - You can't read this case literally to say that failure to file a MNT in a divorce case prevents the later filing of a B of R. If you don't file a MNT, you have to show a good excuse why you didn't. H holds a pistol to W's head & says sign or I shoot. W doesn't file a MNT so she can't later file a B of R? I think not. W's excuse is that her initial fear of being killed didn't pass until more than 30 days after the decree was signed. Personally I don't think that H's "threat" to give W 100% of everything is a "threat" nor does it rise to the level of "intrinsic fraud." Somehow I think there's more to the facts of this case than those set out in the opinion.

3. Richards v. Richards, No. 07-98-0038-CV, not yet published (CA, Amarillo). H filed for divorce tracing the statutory insupportability ground in § 6.001. W filed a special exception demanding that H set forth the factual basis for his claim of insupportability. She also asked for a jury trial. T/C denied her special exception saying "... there's no defense to no fault divorce." Editorial comment - When will judges learn to just rule and not give erroneous or stupid reasons for so ruling. T/C proceeded to trial without a jury. Upon granting the divorce, W appealed. Affirmed. Alleging as ground for divorce "insupportability" tracing § 6.001 language is sufficient - if W wants more facts, use discovery. W was entitled to a jury; however, since she didn't contest H's testimony that "the marriage has become insupportable ...," there was no fact issue for the jury to decide thus denial of a jury was harmless error.

4. Bailey v. Bailey, No. 07-98-0038-CV, not yet published (CA, Amarillo).

H & W divorced with W the M/C of the 2 kids. Later H filed a motion to modify requesting she be designated as sole M/C of the kids. After trial, the T/C designed H & W as JMCs with H having the right to establish the primary residence of one child (J) and W having a similar right for the other child (C). T/C ordered H to pay W $660/mo c/s for C. W was ordered to pay c/s for J by way of $400/mo into the Ct's registry with $300 to go immediately to H and the remaining $100 paid into a joint acct (H & W) which would be used for J's benefit. Upon J reaching 18, if there was any $ left in the joint acct, the balance belongs to J. If H & W couldn't agree how to spend the joint account $, either could apply to the T/C for an order saying how the $ could be used. H appeals. CA affirmed. The T/C didn't abuse its discretionary power by ordering the parties to mutually agree how the $100/mo was to be spent. The T/C created a "hybrid express trust" for J's benefit in regard to the $100/mo joint acct and it didn't abuse its discretion by doing so.

Comment - I guess the T/C has unlimited time to spend administering J's joint acct trust and doesn't give a fig on how much H or W will have to spend to use the joint acct for J's benefit. All of this, although legal, is highly impractical. Why not just order H to pay W $260/mo c/s and forget the rest? I guess I'm just not sensitive enough.

5. Milligan v. Niebuhr, No. 03-98-00246-CV, not yet published (CA, Austin).

H bought a 9 acre tract near the San Marcos river. He could reach the river by a road way but it was inconvenient. Lot 13 was between H's land and the river but there was an easement over Lot 13 for the benefit of H's acreage so he could go over Lot 13 directly and conveniently to the river. Lot 13 was bought by W subject to the easement. Later H & W married. When they divorced later, W got "any and all interest" in Lot 13 as her sep. prop. (amazing since she owned it prior to marriage) and H was "divested of all right, title, interest and claim to Lot 13." This was an agreed divorce signed by each party. After the divorce H tried to cross Lot 13 to go to the river & W said "No." Suit filed and the T/C ruled in W's favor. On appeal H pointed out that the decree made no mention of the easement across Lot 13. CA said tough. The decree divested all of H's claims, etc. regarding Lot 13 so the divorce terminated the easement.

Comment - Just another example of lawyers drawing a sloppy decree or the client not giving his/her atty enough information to draw a proper decree. Query? What if as a part of the divorce division H gave W a special warranty deed to Lot 13 which was made subject to "all liens, reservations, restrictions, easements, etc. as recorded in the records of the County"?

6. Osuna v. Quintana, No. 13-97-527-CV, not yet published (CA, Corpus Christi).

H married W in Mexico in '58. H apparently moved to Texas while W remained in Mexico. In '71 H commenced an affair with E which resulted in 3 kids being born. H purportedly married E in '83 without divorcing W. Shortly after '84, E learned of W and the marriage of H & W. After '71 H started several businesses and made a pot full of $. In '85 H bought E and the kids a house with a $164,000 down payment plus he paid the $1,800/mo house note for several years. In '90 H "sold" his Mercedes to E for $5,000 (below mkt value). In '94 E received $460,000 of which E acknowledged $355,000 came from H but there was no testimony where the $105,000 balance came from. In '94 H bought E a new Dodge van. In '94 E allowed the house to be foreclosed upon & there was a $26,000 excess held by the title company. At some point W filed for divorce in San Antonio against H and made E a party saying that E was the beneficiary of H's fraud upon H & W's community estate. T/C granted the divorce; gave W the '94 Dodge titled in E's name; the Mercedes titled in E's name; the $26,000 in surplus funds resulting from the foreclosure; and a judgment against H & E, jointly and severally, in the am't of $460,000. E appealed. The CA modified the decree by reducing the $460,000 by the $105,000 amount that E received from an unknown source and affirmed the balance of the judgment holding:

1. As there was no showing that H had sep. income, the $355,000 transferred to E from H is presumed to be community $.

2. H's transfer of community $ and property to E was a breach of the fiduciary duty owing by H to W and was a fraud on the community.

3. After E learned of H's marriage to W (1984), E knowingly participated in H's fraud so E is equally liable to W even if E had no actual fraudulent intent.

4. Per Carnes (533/365) W must proceed 1st against H or his estate to satisfy the $355,000 judgment before proceeding against E; however, E has the burden to show that W can fully satisfy any judgment against H. E didn't do this so there's an implied finding that H was judgment proof.

5. Although Jackson v. Smith (703/791) says W can only recover her share of the wasted community assets (50%), Jackson is a probate proceeding where a spouse's community interest is limited to 50%. This is a divorce proceeding where a T/C can award any portion of the community fraud claim to the injured spouse subject only to an abuse of discretion standard. The T/C didn't abuse its discretion in awarding 100% of the community fraud claim against E to W.

6. H testified he gave the '94 Dodge to E. Since community funds purchased the Dodge, H's gift to E created a constructive or resulting trust in the community's favor so the T/C didn't err by awarding the Mercedes & '94 Dodge to W even tho title was in E.

7. When H gave E $ or property (vehicles or house) belonging to the community, both H and E had the burden to show that such gifts were not capricious, excessive or arbitrary.

8. The CA was unable to find any cases saying that a mistress or lover is the natural object of a person's bounty. ( I guess no appellate judge has ever had a lover or a mistress. Query - What is the male equivalent of a mistress, a boy toy?)