Reversed. The issue of whether circumstances had changed wasn't discussed on appeal; however, W claimed that the '98 order should be modified as it violated public policy. The CA found that W's motion was a collateral attack on the '98 order which isn't permitted except where the order violates public policy. Here the order did violate public policy in that it conditioned c/s on H's exercising visitation.

Comment - A correct holding but all this talk about collateral attack seems irrelevant as the F/C always authorizes such a "collateral attack" where there is a change of circumstances.

2. Edwards v. Edwards, No. 06-00-00130-CV, not yet published (CA, Texarkana). In a divorce trial, the T/C advised the parties that if they didn't come to an agreement on the division of their community property, he would appoint a receiver to sell everything "except their underwear" and then split the proceeds however the T/C felt to be fair. The T/C further stated that this procedure has been the ct's policy since he took the bench. Needless to say neither H nor W requested the appointment of a receiver. The parties couldn't agree so true to his word the T/C appointed a receiver with instructions to sell everything except bras, jockey shorts and panties and distribute the net proceeds to H& W per a set percentage.

CA found that the T/C's policy of selling everything per a receiver was an abuse of discretion unless the property was incapable of a division in kind; however, amazingly the judgment was affirmed because all the property had been sold; it had been distributed; neither party had complained that the division was unfair; and neither party had requested a stay of the receivership order pending appeal.

Comment - This is a prime example of a lazy judge who pawns off his responsibility because he doesn't want to take the time to do the job he sought and to which he was elected. Additionally this judge is not knowledgeable as his practice was condemned in Walston (971/687) or if he was aware of this case, he choose to ignore it as to do so made his life easier. If you don't want to do your job properly judge, get off the bench and go sell real estate.

3. In re Cartwright, No. 01-01-00948-CV, not yet published (CA, Houston-1st). In the parties' '97 divorce AID, they agreed that if any subsequent dispute arose between them, the dispute would be mediated by the world's greatest lawyer (James Patrick Smith) and if mediation failed, JPS would arbitrate the matter. In 2001, H filed a SAPCR in the 245th. W agreed to mediate but objected to arbitration as the AID didn't say the arbitration was binding thus arbitration was a waste of time. Without going into all the details which delayed the arbitration/mediation, the T/C removed JPS as the mediator/arbitrator and appointed another person to do so (a nun formerly from Ft. Worth). H objected on the basis that the new arbitrator had mediated the initial divorce and thus she had access to privileged info which might not be admissible in an arbitration hearing.

Objection overruled and mandamus filed and granted. The CA held that F/C arbitration provisions [§6.601 & §153.0071 (a)] require the agreement to specifically make the arbitration binding or non-binding but makes no provisions to appoint a new arbitrator if the original person fails to act. The Tex. Arbitration Act (TAA) has such a provision, but it doesn't apply as TAA specifically states that it isn't applicable to non-binding family law cases. Not withstanding all this legalese, the T/C does have the inherent right to control the disposition of its cases so it does have the right to appoint a new arbitrator. BUT the T/C erred by appointing the original mediator (w/o the parties' consent) as the mediator might be aware of confidential info which might taint his/her decision.

Comment - I agree with W that non-binding arbitration is a waste of time. It's like trying a case to an A.J. without waving the appeal to the T/C.

4. In the Matter of A.D., 45 Tex. Sup. Ct. J. 26. H & W divorced in '74 and H was ordered to pay $160/mo in c/s until the youngest child became 18 in 1990. H didn't pay so in '98 the A.G. issued an adm. wage withholding order to collect $41,000.00 in back c/s. H filed to quash the writ on the basis that in '90 when the youngest child reached 18, the F/C had a 4 yr. S of L on enforcing the c/s thus the '97 statute which contains no S of L was unconstitutional as it retroactively deprived him of a vested right (couldn't collect back c/s after 1994). The T/C and the CA (8/466) agreed and quashed the writ.

Supremes reversed. The '97 statute which authorized the issuance of an adm. writ for back c/s is not unconstitutional as it did not impose or create any new duty or obligation on H as he always had the legal obligation to support his kids nor did the '97 statute resurrect a dead claim or abolish a defense to such. The '97 statute merely created a new remedy to enforce c/s thus being remedial in nature, it didn't violate the constitution's ban on retroactive laws.