Houston Bar Association - Family Law Section

Gray's Interesting Cases - May 2001

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  1. Lilley v. Lilley, No. 03-00-02284-CV, not yet published, (CA, Austin). While the divorce between H & W was pending, H committed suicide. H's father filed suit for grandparent visitation which the T/C granted in January, 2000. W appealed claiming that the T/C's order violated her const. rights per Troxel v Granville (530 U.S. 57). The Austin CA ruled that the Texas grandparent visitation statute (§153.433) is constitutional and has not been voided by Troxel. The CA found that Lilley differed from Troxel because:

    1. The Lilleys were married whereas Troxel/Granville weren't.
    2. The Washington statute placed the burden on the mother to show that the grandparent visitation was harmful whereas here the T/C didn't place this burden on W.
    3. §153.433 is not "breathtakingly broad" as was the Washington statute.
    4. §153.433 has already been found to be constitutional in the '75 case of Deweese v Crawford (520/522). Of course this was 25 yrs before Troxel but this is of no import.
    5. The Lilleys had already involved Texas in their family relationship by filing divorce which was not the case in Troxel. Of course the divorce case was over prior to the filing of granddad's suit but this is of no import also.
    6. Ms. Granville had never sought to deny the Troxels visitation only to limit same whereas here W wanted to deny grandpa any visitation. (The CA said this is the most important distinction, the logic of which totally escapes me).

    Comment - Well here we go again, §153.433 is constitutional in Austin (Lilley) but not in Beaumont (Aubin, 29/199). Whichever side you are on in any other judicial district you have non-binding case authority to support you. I suggest that the distinctions found by the Austin CA are rationalizations, not distinctions, which the CA used to support its pre-conceived decision to find §153.433 to be constitutional. Austin never mentioned Aubin - they ignored the elephant in the tent? Austin completely missed the greatest distinction of all - the names are totally different. Once again I apologize for being so wishy - washy in my thoughts.

  2. In the Matter of Guthrie, No. 05-98-01437-CV, not yet published (CA, Dallas). B impregnated G who gave the child her last name. A year or two later B sued to establish his paternity and requested that the child's last name be changed to his. T/C granted B's request and G appealed. CA affirmed finding:

    1. Changing a child's last name when the child's name is not his father's name is reviewed under an abuse of discretion standard.
    2. A father has no constitutional right to have his child bear his surname.
    3. A father's only protectable interest in a name change is when the mother attempts to change the child's surname from his father's.
    4. A child's surname selected by one parent will not be changed unless there's good reason for the change.
    5. There's no Texas law requiring a child to bear his father's surname. In fact the right of the mother to have her child bear her surname is co-equal with the father.
    6. There are at least 11 factors to consider to determine if a name change is in the child's best interest - the CA lists all of them

    Comment - This isn't an earth shattering case but I thought the law on naming a child was interesting.

  3. You wonder why people hate lawyers. Allen v Albright, No. 06-00-00123-CV, not yet published, (CA, Texarkana). P was walking down the street when he saw that D's house was on fire (D did nothing to cause the fire - it was set by a neighbor juvenile delinquent). D's neighbor rushed out and cried, "D's house is afire and she's an 88 yr. old widow." P came to D's rescue but found that her front door was locked (can't imagine why an 88 yr old widow would lock her front door) so he kicked it in. He then entered the smoke filled house and stumbled over some furniture in the dark. He found D and carried her to safety. Our hero!! Later P suffered some pain in his hip on the side where his door kicking foot was located and ultimately had hip replacement surgery with follow-up rehabilitation. P sued D claiming that he had been injured by D negligently failing to warn him that her house would be filed with smoke (image his surprise when he entered the burning house to find it was full of smoke) and keeping her front door locked. T/C granted D's motion for S/J finding that D owed no duty to warn P and locking her door wasn't negligence. CA affirmed.

    Comment - I know that our current society believes that every injured person is entitled to compensation but surely most attys have more common sense/honor than to file this kind of suit. If you are an atty who thinks this kind of suit is o.k. because you are really suing the insurance company, you really need to take a closer look at yourself when shaving or applying your makeup. Sleazy, sleazy, sleazy. You know what's really wrong with lawyer jokes? Lawyers don't think they're funny and non-lawyers don't think they're jokes.