CPS filed suit to terminate the parental rights of H & W. The T/C appointed ad litems for the kids and one of the parents. The T/C entered temp. orders whereby CPS was ordered to pay interim atty fees to the ad litems. CPS filed mandamuses. § 107.015(b) says if a "party" can pay ad litem costs (fees), the T/C can order a "party" to pay interim ad litem fees. The T/C reasoned that since CPS is a "party," it should pay the ad litem fees rather than the County presuming that the "parents" are indigent as provided in § 107.015(c). Although § 107.015(b) uses the term "parties" and CPS is a "party," § 107.015(a) says ad litem fees are to be paid by the "parents" thus (a) limits (b) so only the "parents" can be ordered to pay the ad litems, not CPS even tho it's a party.

Comment - CPS is just being niggardly again and succeeding.

2. In the Interest of O.G.M., a child, No. 01-98-00496-CV, not yet published (CA, Houston-1st).

H & W during marriage had many of W's eggs fertilized by H's sperm and then frozen. The parties divorced with no clear provisions regarding the frozen eggs. Afterward, with H's approval, W had the eggs implanted in her which resulted in a child being born. Although there was no dispute that H was the child's bio father, W denied H any rights to the child so H filed a voluntary paternity suit. W defended on the basis that the birth of the child by the in vitro fertilization process (IVF) was akin to the birth by artificial insemination (AI) where the bio father has no parental rights unless he is W's husband. T/C granted H's motion for S/J. W appeals. CA ruled, in a case of 1st impression, that IVF is different from AI and there are no statutes regarding IVF. The CA then reviewed all of the evidence supporting H's motion and found it sufficient to find that H is both the biological and legal father of the IVF child. Comment - Although this case received a lot of media coverage, the number of future cases involving IVF children where there was no disposition of the frozen eggs issue in the divorce decree is minuscule; however, I couldn't ignore this opinion because of the brilliant legal work of H's atty (who just happens to be my partner).

3. Barnett v. Barnett, No. 01-97-00656-CV, not yet published (CA, Houston-1st).

H was a single man working for HL&P. H had 3 ins. policies on himself through an employee benefit plan governed by ERISA (29 USCA § 1001, et. seq.). H's estate was the beneficiary under all 3 ins. policies. H's will left everything to his mother. H then married W in '89. H and W were in the midst of a nasty divorce when he died in '94. During the marriage the insurance premiums were paid with community property (payroll deducts). Ins. policy #1 increased its coverage during marriage from $375,000 to $518,000 (with increased premiums paid by the community). Ins. policy #2 increased its coverage from $100,000 to $169,000. Ins. policy #3 remained at $5,000. W sued H's mother claiming that the ins. proceeds were community ($692,000). CA ruled:

1. ERISA governs the employee benefit plans & preempts state law prior to death; however, once the proceeds of the ins. are paid to the probate executor, Texas law prevails to determine the character & disposition of the proceeds.

2. The community presumption prevails unless the mother can prove the sep. character of the ins. proceeds.

3. Policy #1 existed before marriage & had the same insurer throughout. Using the relation-back doctrine, Policy #1 and its proceeds were H's sep. prop. (presumably subject to community reimbursement for premiums paid with community funds).

4. The genesis of Policy #2 was prior to marriage; however, the insurer, policy numbers and benefits changed over the years. Mother could not prove by clear and convincing evidence that Policy #2 was the same policy that existed before marriage so the proceeds of Policy #2 are community.

5. When H made his estate the bene. of the community property Policy #2, he committed a constructive fraud against W (the gift wasn't fair) so W is entitled to 50% of the $169,000.

6. For various reasons, W waived her claims under Policy #3.

The dissent says ERISA supercedes all state law thus all insurance proceeds should go to the mother.

Comment - I was really upset about this case as I thought that ERISA said that a surviving spouse automatically got to be the beneficiary of all ERISA employee benefit plans unless the spouse specifically waived her ERISA rights. Close but no cigar. This is true of pensions, 401K plans, etc. but not true of ERISA "welfare plans" which are basically life insurance plans where the surviving spouse provisions of ERISA do not apply.

4. Jenkins v. Jenkins, No. 02-98-158-CV, not yet published (CA, Ft. Worth).

H & W divorced in '92 with an AID whereby H agreed to pay W $2,000/mo. in contractual alimony until he had paid her $144,000. H stopped paying. W filed bankruptcy & the B.K. trustee filed suit for the $107,000 due as of filing plus $17,000 in future alimony based on anticipatory breach. T/C awarded judgment for that sued for. H appeals on various points, one of which was that the B.K. trustee didn't produce evidence of the present value of the $17,000 due in the future for alimony. CA affirmed. Specific evidence of the present value discount rate is not required. The T/C may determine the present value of future damages (presumably here - 100%). H didn't object at trial to the T/C's discount rate or the T/C's miscalculation of the present value of the future alimony so he waived his complaint on appeal.

5. The Estate of Gorski v. Welch, No. 04-98-00333-CV, not yet published (CA, San Antonio).

G & W had a child out of wedlock in '91. G signed a consensual paternity decree where he agreed to pay $500/mo c/s until the kid reached 18. G died in '96 with a will leaving everything to his 3 adult kids. W sued G's executor to establish her claim to c/s against G's estate. The paternity decree did not state that the c/s obligation was binding on his estate. (See De La Garza, 851/380). § 154.006 says c/s terminates upon the death of the obligor unless otherwise provided in the c/s order or by the written agreement of the parties. T/C granted S/J for W. CA affirmed. The consensual decree is a contract. The contract provided for a fixed am't of c/s over a fixed am't of time thus G "agreed in writing" that the c/s would not terminate upon his death thus the c/s was binding upon his estate although those words were never used.

Comment - The logic of this case is somewhat suspect and I would not bet the farm on it being followed by other courts especially since it's a San Antonio opinion.

6. Chandler v. Chandler, No. 08-97-00484-CV, not yet published (CA, El Paso).

H & W divorced by an agreed decree in 1980 whereby W was to receive $450/mo from H's Army pension. In '91 H learned that his wife might not have been divorced from her 1st husband when she married him so he sought judicial relief to set aside the '80 divorce decree and have it declared that he was never married to W. H's judicial attempts were in the form of 10 suits filed over a 19 year period culminating in his being permanently enjoined from filing any more suits. H appeals in 10 points of error involving recusal, objection to visiting judges, res judicata, motions to clarify, atty fees, the USFSPA and injunctions against filing further suits. Justice Ann Crawford overruled each of H's points in a detailed and scholarly opinion which is well worth reading if you have a case involving any of the above; however, be aware that the opinion is 63, yes I said 63, pages long.

Comment - Although bench and bar would be denied the logic and clarity of Judge Crawford's legal writing, here's a suggestion on how this appeal could have been resolved in a single sentence - "The Court finds that Appellant is a pro se fruitcake thus all points of error are without merit, are overruled, and the T/C's judgment is affirmed." Brevity has merit; however, for her illuminating treatise on the law, Justice Crawford is hereby awarded the 1999 trophy for "The Longest Family Law Appellate Opinion of the Year." Congratulations Ann, your trophy is well deserved.

7. Only in Texas! Mid-Century Insurance Company of Texas v. Lindsey, 42 Tex.Sup.Ct.J. 25. "Richard Metzer and his wife had been fishing with their nine-year-old son when the boy returned to Metzer's pickup parked nearby to retrieve his coveralls. Finding the truck locked, the boy climbed into the bed and attempted to enter the cab through the truck's sliding rear window, which was open a few inches. In so doing, he accidentally touched a loaded shotgun resting in a gun rack mounted over the rear window, causing the gun to discharge. The buckshot struck Richard Lindsey, who was seated in his mother's car parked next to the pickup." The victim's mother had underinsured motor vehicle insurance on her car but it only covered damages arising "out of the use of the underinsured motor vehicle." Is mom's insurance liable for the shotgun accident? YES SIR RE BOB! "...when the injury-producing act and its purposes are an integral part of the use of the vehicle as such, injury caused by discharging the gun has generally been held to arise out of use of the vehicle."