1. In re: Dickason, 987 S.W.2d 570 (Tex. 1998).
Collaterally to a divorce suit, H sued W's alleged lover for various torts. The lover sued for sanctions which the T/C granted including dismissing H's suit. The sanction judgment was signed on Day 1. H filed a MNT on Day 25. On Day 32 H filed an amended MNT. On Day 33 the T/C signed an order denying the MNT. On Day 78, a new judge signed an order granting the amended MNT. Lover files for mandamus to the Supremes claiming that the T/C had no juris. to sign the order granting the amended MNT. Supremes agreed and set aside the Day 78 order. Under TRCP 329b upon the filing of a MNT, the T/C's plenary power is extended to 75 days after judgment. If the T/C denies the MNT, either by written order or the expiration of 75 days, the T/C has an add'l 30 days to reconsider the denial. Since T/C signed the denial order on Day 33, the T/C had to Day 63 to sign a different order otherwise it lost juris. to do anything thus the granting order signed on Day 78 was a nullity.
Comment - I guess simple arithmetic is not the new T/C's strong suit.
2. In re: A.B., No. 11-98-00167-CV, not yet published (CA, Eastland).
In Sept. '96, the T/C signed an order whereby H was obligated to pay c/s for his child until the child attained 18 years of age "provided that if the child is fully enrolled in a high school program leading to a diploma, the c/s shall continue until the child graduates." The child became 18 in Nov. '97 at which time she quit school and was also expelled. H stopped paying c/s in Dec. '97 and refused to pay anything. The child re-enrolled in high school in Jan. '98 taking 7 courses of which, after the 1st grade period, she flunked 3 courses, dropped 1 course and passed the remaining 3. W filed for contempt which was heard during the 2nd grade period when the child testified she would flunk 5 classes and pass 2. The school defined the child as "enrolled" and would graduate in May '99 if she passed her remaining classes.
The T/C found that there was no reasonable expectation that the child would graduate in May '99 and that "... an habitual absentee from school and a casual scholar with habitual failing grades who has little or no prospects of graduating cannot be fully enrolled ...". The T/C denied W's contempt motion. W appeals.
The CA reversed construing the c/s order as a K since it was consensual and found that "fully enrolled" does not require the child to make a "good faith effort" to attend classes or make passing grades. If the school shows the child to be "enrolled" in school, she's "fully enrolled" so H has to pay c/s. If the child is "expelled" (as she was in Nov. '97), she's not "fully enrolled" until she re-enrolls (Jan. '98) so H wasn't obligated for the Dec. '97 payment. The dissent correctly points out that § 154.002 uses the term "fully enrolled" thus mere "enrollment" in a school isn't enough. The term "fully" which modifies "enrolled" must mean something, i.e., the child must be more than a casual scholar.
Comment - I don't have an answer to this issue but I think the dissent is correct. Just because a child is "enrolled" in a school shouldn't extend the obligor's c/s where the child is flunking his/her courses and has no reasonable expectation of graduating. Are there parents who would keep a child enrolled in school just to receive the c/s? You bet. I talked to H's atty and the decision to try to get the Supremes to review this opinion has not been made. Point of interest - the child was convicted of a felony and sent to prison in Nov. '97 but the criminal T/C gave her shock probation and released her from jail so she could "re-enroll in school" in Jan. '98. Just occupying a seat in a classroom shouldn't extend c/s thru graduation or age 21. It just ain't right.
3. Herschberg v. Herschberg, No. 13-98-631-CV, not yet published (CA, Corpus Christi).
H & W divorced in Hidalgo County in Jan. '96. W appealed only the property division. The T/C's judgment was affirmed as to the granting of the divorce but reversed for redivision of the property in July '97. In April '98, W requested the T/C to order temp. spousal support & interim atty fees pending re-trial on the property issues. In May '98, H filed for bankruptcy. In June '98, the B.K ct. authorized H to pay W $5,000/mo. as support from the B.K. estate and remanded the property division issues to the state T/C. The T/C heard W's request for atty fees and alimony in Nov. '98. After considering W's testimony that she had expenses of $5,000/mo.; she was earning $1,000/mo.; her atty estimated that the total atty fee cost to retry the property division was approx. $335,000; H was currently earning $12,500/mo. gross; and the community property subject to divorce division produced a monthly income of $1,385 (the total estate was worth $4 mil. but it was subject to the B.K. proceeding), the T/C ordered H to pay W alimony of $8,000/mo. plus $27,000/mo. for W's interim atty fees (for a total of $35,000/mo.). H filed both an appeal and a mandamus.
CA ruled:
- Although H & W are divorced as of Jan. '96, the proceeding isn't final because the property hasn't been divided so the T/C has juris. under § 6.502 to order alimony & interim atty fees per Joiner (755/496) and Eikenhorst (946/882) contrary to the holding in Grossnickle (935/830);
- The T/C can't use the award of temp. alimony to equalize the living standards of H & W, i.e. you can't award an am't in excess of W's actual expenses ($5,000/mo.); and
- In awarding interim atty fees, you have to balance the anticipated fees against the other spouses' ability to pay ($27,000/mo. v. H's $12,500/mo. gross income less the $5,000/mo. alimony less H's living expenses). Since the temp. order wasn't appealable, appeal dismissed but mandamus granted due to the T/C's abuse of discretion in awarding alimony in excess of W's proven needs and atty fees in excess of H's ability to pay.
Comment - Its such a comfort to know that Hidalgo County justice is so consistently and outrageously wrong.
