2. Dutton v. Dutton, No. 11-99-00251-CV, not yet published (CA, Eastland). During H & W's marriage, W's parents transferred 150 acres to H & W. During the divorce W claimed this was a gift solely to her. H claimed the land was community property and his inventory showed it to be community. The T/C found the land to be community and awarded it to W. H appealed claiming the property was a joint gift to him & W thus he had an undivided 50% sep. prop. interest which the T/C could not divest from him. On appeal the CA found that H judicially admitted that the property was community as he characterized it as such on his sworn inventory. The CA then discusses the 5 elements of a judicial admission and finds that H has satisfied all 5 elements thus he is precluded from changing positions on appeal. Judgment affirmed. Although a judicial admission can be waived if the opposing party admits evidence contrary to the admission, such a waiver did not occur in this case. Comment - Be careful on which you claim in your filed inventory - it can come back to haunt you.

3. In the Interest of C.B.M., No. 09-98-098-CV, not yet published (CA, Bmt.). A gave birth to a child out-of-wedlock. A yr. later B filed a paternity suit to be named the child's father. As a part of the suit, B requested that that child's surname be changed to B's surname. Upon trial B's paternity was established but the T/C refused to change the child's name. B appeals. CA affirms. Although a father has a protected interest in having his child retain his father's name, where the child has an initial or original surname different from his father, changing the surname is within the discretionary power of the T/C. G.K v. K.A. (936/70). Here there was no abuse of discretion under the circumstances.

4. Wilburn v. Wilburn, No. 12-99-00292-CV, not yet published (CA, Tyler). H & W married in '91 and H filed for divorce in '97. In Nov. '98 trial was held and the T/C granted the divorce, divided the parties' property and made provisions for their children. The T/C rendered his judgment in open ct. on the record. In Dec. '98 before a written judgment could be signed, H was killed in a car wreck. A written judgment was signed in March '99. W filed a MNT which the T/C partially granted whereby the life ins. proceeds arising from H's death were held in trust for the benefit of H's kids but everything else remained as set forth in the March '99 decree. W appeals claiming that the T/C didn't have juris. to make any decision on the ins. proceeds. CA affirms. Upon H's death, the T/C lost juris. to grant a new trial on the issue of divorce because it didn't have personal juris. over H (he's dade, Judge) but the T/C does have juris. to reconsider property issues. Comment - The CA relied on Dunn (439/830) for the proposition that the T/C may readjust a property division after the death of one of the spouses. I've read Dunn twice but I don't see where the Supremes say a T/C can redivide the parties property after death merely because a death has occurred. Knowing that an appellate ct. can't misinterpret a Sup.Ct. case, I guess I'm wrong again. I wouldn't rely on Tyler's opinion on property re-division until the Supremes write directly on this point.

5. Ramsey v. Ramsey, No. 03-99-00476-CV, not yet reported (CA, Austin). In June '94 H & W were divorced (by default) in A County & H was given custody of his son. H & W started living together in '96 (I assume no common law marriage occurred) but they split up again in '99 when H & his son moved to B County. W then filed for H/C in C County claiming that it had and has continuing SAPCR juris. since '91 when C County signed an order designating her as the child's M/C with custodial rights (the '91 suit was a result of the A.G. filing suit against H for ADC payments made to W during one of the parties' separations). If true then A County never had SAPCR juris. during the divorce as C County had continuing, exclusive juris. until such time as the C County suit was transferred to A County. When the C County judge found out that: (1) W had filed for divorce in A County in '92 but never mentioned the '91 C County SAPCR order (case DWOP); (2) in '94 H never advised A County of the C County '91 SAPCR order; and (3) W never contested A County's SAPCR juris. in the '94 divorce even though she was served with citation, it dismissed W's H/C finding that the '94 divorce decree was valid. W appeals. CA affirms. The '94 decree appears valid on its face thus W's attack claiming no SAPCR juris. because of the '91 C County order is a collateral attack on a judgment which is not permissible. § 155.001 says a T/C acquires exclusive continuing juris. upon rendition of a final SAPCR order but here we have 2 final orders. Which one prevails? § 155.004(a)(3) says that a Ct. of continuing SAPCR juris. loses juris. to another Ct. if the bureau of vital statistics erroneously advises that there is no Ct. of continuing juris. Here the erroneous information was supplied by the parties but the results are the same. § 155.001 is not a true juris. statute but more akin to a dominate juris. or venue statute. County A has dominate juris.; County C lost SAPCR juris. in '94 to County A due to the misinformation given by W in the '92 divorce and by H in the '94 divorce; and besides that W is ugly. Comment - Good result but the legal logic is weak. This is an example of bad facts make bad law. My best suggestion is to treat § 155.001 as a juris. statute despite Austin=s thoughts on dominate juris. and venue.

6. Manning v. Hayes, No. 99-20537, not yet published (5th Cir.). H & W signed a prenuptial agreement which identified their respective sep. prop. & waived any community claims against such property but no mention was made of H's ERISA employee benefits including a life ins. policy. H & W married on 12/27/94. On 12/15/95 H designated W as the beneficiary under his ERISA life ins. policy. H & W divorced on 6/26/97 but again no mention was made of the ins. policy. H died a month later without changing the beneficiary of the policy. H's estate filed suit claiming it was entitled to the ins. proceeds due to § 9.301 F/C which negates H's bene. designation pre-divorce unless he re-designates his ex-wife as a bene. post-divorce. U.S. Dist. Ct. ruled for W saying that federal law (ERISA) pre-empts Tex. law so the designated bene. prevails even tho a divorce had occurred. The estate appeals. The 5th Cir. ruled that ERISA doesn't pre-empt state law in regard to ERISA welfare plans such as life insurance (the pre-emption does apply to ERISA pensions) but the rights to the ins. proceeds is not determined by state law - its determined by the federal common law. According to the 5th Cir., federal common law says the designated bene. prevails unless it is shown that the bene. "explicitly, voluntarily, and in good faith" waived her rights as the bene. Since there was no such waiver in the pre-nup. or the divorce decree, W, as the designated bene., is entitled to the ins. proceeds. Comment - Whether you use the ERISA pre-emption theory or the federal common law, the result is the same. The bottom line is someone forgot to mention employee benefits in every legal instrument which resulted in this controversy.

7. Troxel v. Granville, No. 99-138, not yet published (U.S. Sup. Ct.). H & W (not married) had 2 children. H killed himself and a dispute arose between W and H's parents (G.P.) regarding G.P.'s visitation rights with their 2 grandkids. G.P. filed suit under Washington's statute which allows "any person, at any time, to petition for visitation if the Ct. finds that such visitation is in the child's best interest." The T/C ordered visitation & W appealed to the state Sup. Ct. which reversed finding that the statute was unconst. under the 14th Amend. of the U.S. Const. G.P. appeal to the Potomac high 9 which affirm. The U.S. Sup. Ct. found that the state statute was too broad in that it allows a judge to ignore the wishes of a parent without any showing that the parent is unfit; the decision is based solely on the judge's determination of the child's best interest ignoring the parent's determination of best interest; and it places on the parent the burden of disproving that visitation is in the child's best interest. The Supremes refused to consider whether due process requires all 3rd party visitation statutes to have a proof of harm as a precedent to visitation or the exact scope of the parents' due process rights in respect to 3rd party visitation case. Comment - Does this decision affect grandparent rights in Texas under § 153.431, et seq.? You bet. Under the facts of this case not only would a Tex. Ct. allow visitation (assuming a favorable finding of best interest) but § 153.433 says a court shall order visitation. Is our grandparent visitation statute unconst.? Probably under the facts of this case. § 153.433 says "The Court shall order reasonable access to a grandchild by a grand parent if: (1) ... at least one bio. parent of the child has not had that parent's parental rights terminated; (2) access is in the best interest of the child and ... (3) the grandparent requesting access to the child is a parent of a parent of the child and that parent ... is dead." Is § 153.431 unconst.? YES! Unless § 153.431 is amended, grandparents can't have Ct. ordered visitation with a grandchild who is being reared by a fit parent. "..., so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning rearing of that parent's children. ... if a fit parent's decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination."