Houston Bar Association - Family Law Section

Gray's Interesting Cases - July 2004

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  1. Wilson v. Wilson, 132 S.W. 3rd 533 (Tex. App. Houston - 1st, 2004, no writ hist.) W filed for divorce & served H who never appeared or filed an answer. W appears for a default judgment but introduced no exhibits. Her testimony was that H had an estate worth $1.2 mil but all she wanted was the house worth $300,000, 2 cars, $100,0000 in a bank acct. and an owelty judgment against H for $275,000. Without any further evidence, the T/C signed the submitted judgment giving W what she asked for. Some months later H found out about the judgment & filed a restricted appeal claiming that the evidence wasn't sufficient to support the judgment.

    The CA reversed. Ignoring H's claim that all the $ came from his p.i. suit, the CA said the evidence was so sparse no court could make a "just and right" division. W didn't even testify that the $1.2 mil was community property and there was no value placed on the assets awarded to H.

    Comment- I have included this case to remind bench and bar that just because the case is a default, there must be sufficient evidence to support the judgment. It can't be that difficult to prepare and introduce an inventory. In a million dollar case, H was an idiot not to hire an atty but even blind hogs find an acorn. In this case it was the ineptness of W's atty who couldn't even win a default due to his own lack of preparation -- it's a default, who cares. Will W care?--she just lost what could be $675,000+. Prepare, prepare, prepare.

  2. Villarreal v. Villarreal, No. 14-03-00577-CV, not yet published (CA, Houston -14th). H & W divorced in '84 and H was to pay $70/wk in c/s which he didn't do. In '03 H agreed with the A.G. (who are just there to help you as a friend) to an agreed judgment for accrued c/s in the am't of $104,000 payable at $600/mo. At this rate 87% of H's payments go to interest at 6% with approx $934 being applied to principal so H will pay off this judgment in approx. 100 years assuming he misses no payments due to illness or more probably death. After entry of judgment, H hires an atty who files an appeal on the basis that H must be advised of his right to an atty in any action to reduce c/s to a $ judgment. In a case of 1st impression, the CA say H wasn't entitled to be so advised "absent a threat of incarceration." Since the A.G. hadn't filed contempt asking for jail time, there was no "threat of incarceration."

    Affirmed.

    Comment - Absolutely a correct holding but isn't it sad that the A.G. can bamboozle these dummies and there's no recourse?

  3. Hardin v. Hardin, No. 14-03-00342-CV, not yet published (CA, Houston- 14th). H & W divorced in '02 with H paying $800/mo. c/s. 2 mos. later H filed a motion to reduce the c/s. In the '02 trial, the T/C denied H's motion and awarded W $2,200 in atty fees for defending against H's suit. These atty fees were classified as c/s. H appeals.

    CA affirms. If the atty's services have a relationship to the needs of a child, such fees can be construed as necessaries for the child in SAPCR action. As these necessaries were incurred in a c/s modification, they may be treated (and enforced) as c/s. The 14th CA recognizes that this holding directly conflicts with the 1st CA's holding in Moers (104/3/609) but Moers was based on the 1st CA's holding in Roosth (869/2/634) which Moers misconstrued.

    Comment - If you believe this case, the T/C can award atty fees in a SAPCR modification action as c/s and enforce same by jailtime. WOW! Of course if you're held in contempt & file your H/C in the 1st CA, you go free. If it's heard by the 14th you need to be real careful in the shower. Isn't it amazing that 2 CA's who sit less than 100' from each other can come up with holdings 180 from each other.

  4. In the Interest of M.A.S., et al., No. 05-03-00401-CV, will not be published - memo opinion (CA, Dallas). H & W divorced in 2000 and in '01 H filed a motion to modify. On 8/13/01 a visiting judge was appointed to try the case and the attys were so advised on 8/15/01 with a notice of hearing on 8/20/01. A pre-trial conf. was set at 1:30 p.m. on 8/16/01. At 11:22 a.m. on 8/16/01 W's atty1 filed an objection to the visiting judge with the dist. clerk. At the pre-trial W's atty1 wasn't present but W's atty2 did appear late but made no objection to the visiting judge. H's atty told the judge that he had been told that W's atty1 "may" be filing an objection but a search of the file showed no filed objection (gosh it has been filed 1 hr. and 58 minutes earlier - surely it would have been in the ct's file by now). The visiting judge conducted the pre-trial conf. Before trial, the visiting judge learned of the filed objection and referred the matter to the adm. judge who ruled that W had waived the objection by not bringing it to the visiting judge's attention prior to the pre-trial conf. W eventually appealed.

    Reversed. Once a party files an objection to a visiting judge per §74.053 of the Govt. Code, the visiting judge is automatically disqualified as a matter of law whether the visiting judge is made aware of the filing or not.

    Comment- You have a visiting judge assigned to your case; you file a timely objection which is unknown to everyone else; you try the case. If you win, you say nothing. If you lose you have a gut cinch reversal. Is this the ultimate laying behind the log? Fun, isn't it?

  5. Long v. Bryant, No. 05-03-00449-CV, not yet published (CA, Dallas). B hired L to represent her in a suit against a contractor. The matter was referred to mediation where it settled. B then sued L for malpractice claiming that he did not fully disclose to her the risks and benefits of settling the matter. The disclosure or non-disclosure took place during mediation with B, L and the mediator present. At trial the T/C refused to allow the mediator to testify because of the confidentiality provisions of the various ADR statutes. The mediator did not object to testifying. I guess the atty lost the case as she appealed.

    Reversed. The T/C erred in not allowing the mediator to testify. Where a new and independent tort arises during mediation and the circumstances warrant disclosures made during mediation, such disclosures do not violate the ADR rules. Avary (72/3/779). However, Avery did not decide whether a mediator can be forced to testify. Our Supremes have said that a privilege can not be used "offensively." If the T/C finds that a party seeking affirmative relief claims a privilege but the privilege info is such that its disclosure would determine the outcome of the case and the disclosure of the privileged info is the only means by which a party may obtain such evidence, the privilege claim by the party seeking affirmative relief is waived (Flores, 870/2/10 and Davis, 856/2/158). In this case B is using the ADR confidentiality rules offensively against L which is improper. B has a choice - keep the mediation confidential or drop the suit against L - she can't have both. The mediator may testify as to what L told B during the mediation.

    Comment - Good holding and a logical answer to a heretofore unresolved question. Would it have made any difference if the mediator refused to testify? No. Under the reasoning of this case, the mediator can be forced to testify.